Mark D. White

When economists debate the neutality of money, they are concerned with its effects on real output and growth. But other scholars, such as philosophers and sociologists, consider the social neutrality of money--that is, whether the pervasive use of money in society has a qualitative effect on the way we think about both market and nonmarket transactions.

A particularly fascinating element of this discussion deals with money's role in the legal system, such as in tort damages, contract remedies and criminal fines. The reliance on monetary compensation is rarely questioned in tort or contract cases, and law-and-economics scholars in particular favor the use of fines over imprisonment in most cases because of the trivial resource costs and deadweight losses. But they also recognize that imposing fines for many crimes, such as violent crimes, is inappropriate and unjust.

In his 2009 book The Currency of Justice: Fines and Damages in Consumer Societies, Pat O'Malley critically examines this neglected aspect of the legal system:

Fines and monetary damages account for the majority of legal sanctions across the whole spectrum of legal governance. Money is, in key respects, the primary tool law has to achieve compliance. Yet money has largely been ignored by social analyses of law, and especially by social theory.

The Currency of Justice examines the differing rationalities, aims and assumptions built into money’s deployment in diverse legal fields and sanctions. This raises major questions about the extent to which money appears as an abstract universal or whether it takes on more particular meanings when deployed in various areas of law. Indeed, money may be unique in that it can take on the meanings of punishment, compensation, denunciation or regulation.

The Currency of Justice examines the implications of the ‘monetization of justice’ as life is increasingly regulated through this single medium. Money not only links diverse domains of law; it also links legal sanctions to other monetary techniques which govern everyday life. Like these, the concern with monetary sanctions is not who pays, but that money is paid. Money is perhaps the only form of legal sanction where the burden need not be borne by the wrongdoer. In this respect, this book explores the view that contemporary governance is less concerned with disciplining individuals and more concerned with regulating distributions and flows of behaviours and the harms and costs linked with these.

I admit I was made aware of this book only by a mini-symposium in the latest issue of Social & Legal Studies (20/4, December 2011) titled "The Currency of Freedom," in which three scholars from different areas of the law discuss O'Malley's book, offering unique and opposing viewpoints. From David Campbell's introduction:

In The Currency of Justice which appeared in 2009, Pat O’Malley made a number of extremely interesting observations about the effect of the institution of money as a form of governance on the legal and social systems of the advanced capitalist societies. By making possible the use of damages in civil law and fines in criminal law, money has had a profound impact on the form and substance of tort, contract and criminal law, the nature of which is insufficiently understood or even researched, O’Malley’s own previous work notwithstanding. Though he discusses many of the criticisms of money’s effect on the legal and social systems, and these are further discussed in the course of this Dialogue and Debate, in my own view the particular importance of O’Malley’s argument is that it calls into question the essentially negative evaluation which left-wing social and legal thought places on money. In a passage which is quoted in my contribution, O’Malley says:

Perhaps monetisation, the saturation of life by money, is after all not antithetical to the valuation of individual uniqueness and its high estimation. Maybe money is a medium through which new forms of liberalism, new forms of freedom, simultaneously constitute meaning and are constituted by it. (O’Malley, 2009: 15)

In this Dialogue and Debate, comments on the implications of The Currency of Justice for our understanding of tort (Jenny Steele), contract (myself) and criminal law (David McCallum) are followed by a response by O’Malley. A synopsis of the argument of The Currency of Justice is given at the beginning of this response.

The individual papers in the symposium are:

• "Satisfying Claims? Money, Tort, and 'Consumer Society'" (Jenny Steele)
• "How Sensible is the Left-wing Criticism of Money, Exchange and Contract?" (David Campbell)
• "Money, Discipline, and Liberal Political Reason" (David McCallum)
• "The Currency of Freedom?" (Pat O'Malley)