In case it is not obvious by now, I have a very strong interest in the legal underpinnings of our monetary system. I find it to be of fundamental relevance to almost every discussion we have in law school, since the default assumption (in certain Torts classes more than others, perhaps) tends to assume the neutrality of money itself, or at the very best make very vague assertions about how it functions. These implicit assumptions are then used to justify the exclusion of certain avenues of enquiry, to present contingent phenomena as axiomatic laws of nature, and to obfuscate issues from their true bases.

While my own journey down the rabbit-hole that is money originated in the distinct but related field of economics, I recently discovered - to my delight - that there is an active body of critical legal scholarship addressing similar issues.

The most interesting paper I have read in this body so far is this one by Christine Desan, a Harvard Law Professor and legal historian operating in the critical legal studies/realist vein. I highly recommend it to anyone interested in economics, issues relating to common law liability and the formative history of the U.S. Constitution (which forms a large part of the paper's focus).

I'd also be interested in discussing the paper's arguments and their contemporary implications further with anyone who is willing.

-- RohanGrey - 09 Jul 2012

Very good paper Rohan. I think Desan makes an interesting approach (but a different story then I would tell) to the naturalistic narrative of money. She says there has always been such a narrative (the inherent value of gold), which is by all accounts false, but persists through our discourse despite the imposition of fiat money (paper money with no other backing then mutual agreement). But do we really believe that money is anything more than mutual agreement as the persistence of the naturalistic narrative suggests? I think that nowadays our use of a naturalistic discourse when speaking about money stems from a great discomfort from what money really is. We need something more "solid" to anchor our discourse about money. I also think that the fetishism of money has a great deal to do with it, and that interestingly, the immateriality of money really underscores this fetishism.

I what I mean is, in the digital age, where money is made valuable not by the fiat of actually printing money but by certain computers inputting digits, does anyone really believe that money is anything more than mutual agreement? The hard question now is mutual agreement on what? Before it was that possession of certain bills, papers, documents could by exchanged for certain other bills, papers, documents (namely the definition of trade but with all trade processed through certain papers like cash or check). Nowadays with everything controlled by machines (other people's machines), I think the issue of possession becomes more precarious. I like to think of my money as having some sort of tangible value because I don't like the idea that all my money can be erased with a swipe of a key stroke. I just feel like people today don't actually think that money is imbued with special characteristics or that its value is divinely preordained like the ancients who really thought some materials were inherently valuable. I think it would be pretty crazy to think that digits in our banks computer really had inherent value.

But maybe the "inherent" value in money lies in its fetishization, which happens when we're unable to strike a balance between knowing that money is just mutual agreement and wanting it to be something more. Today, however, this fetishization is particularly perverse. It is unlike Marx's caveman who fetishizes fire because at least fire is something in the world. Money nowadays is completely digital and so abstracted that you really have to try very hard to fetishize it into something with an independent existence. Or maybe not so hard because a lot of important things may just be fetishizations of a mutual understanding. Grades are an example. Like money, they're just characters on certain computers whose integrity is based on a certain mutual understanding. Unlike paper money, however, we'll probably only use your transcripts once or twice in our lives.

-- AlexWang - 10 Jul 2012