Backstage in legal theatre: A Foucauldian interpretation of ‘Rationes Decidendi’ on the question of taxable business profits

Uncertainty about the concept of taxable business profits in UK tax statute has resulted in a divergence of views between tax-payers and the state which has frequently required judicial mediation. In this study, a dual Foucauldian/dramaturgical lens is deployed to critically evaluate factors that have influenced the enactment of truth games and the order of judicial codified discourse in case law dramas. Three sources of empirical data are examined including landmark tax cases, judicial writings and biographical material. Novel use is made of the unpublished autobiography of Baron Nathaniel Lindley (1828–1921). His memoirs provide an unusual and candid glimpse backstage into the dramatis personae and modus operandi of judges who presided over tax cases in the Court of Appeal. The principal findings of this study suggest that judicial codified discourse has a history contingent upon mutable variables including the position of the judiciary (who spoke in a case and who did not, what was said or left unsaid), procedures and constraints embedded in the ritual of legal theatre, with implications for the codification process. Once tax rules are established the valid ‘noise to discourse’ from dissenting judicial opinions is lost. The courts offer a heuristic mechanism for problem solving but without reference to Foucauldian materiality, the development of judge-made practice codes may, at times, be limited to the play of legal semantics. Approaches to the resolution of ambiguity in tax legislation that are grounded in a less ritualised form of discourse may yield more representative results than approaches based solely on the parole however brilliant, of a few individual judges.