The Currency of Freedom
| Date | 01 December 2011 |
| Author | David McCallum,Jenny Steele,David Campbell,Pat O’Malley |
| Published date | 01 December 2011 |
| DOI | 10.1177/0964663911419596 |
| Subject Matter | Dialogue & Debate |
Dialogue & Debate
The Currency of Freedom
David Campbell
University of Leeds, UK
David McCallum
Victoria University, Australia
Pat O’Malley
Sydney Law School, Australia
Jenny Steele
University of York, UK
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 governanceon the legal and social systems of the advancedcapitalist societies. By mak-
ing 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 hediscusses many of the criticismsof 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 contributors would like to thank the Dialogue and Debate Editor and an
anonymous referee for especially diligent and helpful comments.
Reference
O’Malley P (2009) The Currency of Justice: Fines and Damages in Consumer Societies.
Abingdon: Routledge-Cavendish.
Social & Legal Studies
20(4) 515–556
ªThe Author(s) 2011
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DOI: 10.1177/0964663911419596
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Satisfying Claims? Money, Tort,
and ‘Consumer Society’
Jenny Steele
University of York, UK
Tort law has been a favoured location for jurisprudential contests between principled and
scepticalaccountsof legal evolution,
1
andit has even been regarded– for example,by Simon
(1988)– as providingan obvious exampleof the declineof principle andgrowth of pragmatic
reasoning. Butbeyond court-focused analyses of these sorts, the social significance of tort
can appear limited: functional or policy-based analyses of tort typically lead into a blind
alley, suggesting that much oftort law should be, or in reality has been, replaced.The fate
of tort law contrasts here with th at of its private law cousin, contract. While ‘ contractual’ can
readilybe used as an adjectiveto describe certainsorts of social relations(though not without
the risk of misrepresenting contracting),
2
the same is not true of ‘tort-like’ or ‘delictual’:
these are legalterms, and no more. For scholarsof the law of tort, it is thereforeespecially
promising that The Currency of Justice treats the development of this branch of law as an
important and integral part of a much wider set of developments in ‘consumer societies’.
Such societies, it argues,are regulated in particularways through the mediumof money, and
both civil and criminal liabilities feed into this process. The claim is a broad one:
Through the vehicle of money and its meanings, it may be suggested not simply that there is
a blurring of the civil and criminal domains, but that the two become interchangeable in
certain key respects, and form a more or less seamless and ubiquitous system of regulation.
(O’Malley, 2009: 20)
The focus on regulation through damagesseems to take us out of the blind alley,and to give
tort a greaterdegree of currency thancontract – at least untilthe story unfolded by O’Malley
brings us into the era of neo-liberal revival.The neo-liberal agenda can be said to promote
contractingas the key to economicand social well-being,adopting a conceptionof contract-
ing in broadly classical terms associated with individual choice, and with the rejection of
paternalism.
3
Indeed, O’Malley describes the neo-liberal reform agenda in respect of tort
in terms of an ambitionto ‘return contract to centre stage’, in combination with ‘a desocia-
lized imaginaryof consumption’ in which consumerautonomy, rather than consumerpro-
tection,is key. But as O’Malleynotes, reformof tort law, thoughit has occurred, hasnot been
accompanied(so far at least) by the expected shiftfrom third party to first party insurance.
4
Retainingthe link betweencivil damages and criminaland regulatory sanctions,he adds that
the first partyinsurance reform agenda‘has been no more successfulthan the parallel econ-
omist’s vision of finesbecoming the universal sanction’ (O’Malley, 2009: 168).
516 Social & Legal Studies 20(4)
In the pages of The Currency of Jus tice, money,then, is the key to understandinga broad
range of means of controlling and governing consumer society. Generally, this is said to
have been achieved through a ‘seamless’ combination of both civil and criminal law. The
present article represents one tort lawyer’s response to this broad thesis, and particularly
to the treatment of money as enabling civil liability to join the regulatory circuits of con-
sumer society.Apart from finding a place for tortat the centre of things, does this exercise
succeed in illuminating afresh the role and functions of tort liability in particular?
The first thing to say is that the focus on the monetary form of damages and
its significance is both stimulating and surprising. It is surprising – potentially even
startling – because once mentioned, it seems obvious that the impact of monetization
is at least capable of holding the key to numerous developments in present legal systems.
If we have not focused enough on money, it is quite possible that we have not understood
which are the most significant features in those developments. In this way, O’Malley
may have offered us the key to a number of doors through any of which may lie a route
to new understandings. The path taken by O’Malley himself where tort law is concerned
is the exploration of an interface between monetary damages – the focus here being on
non-pecuniary harm – and insurance. Of course, the relationship between tort and insur-
ance has been explored before. The novelty of the account promised by The Currency of
Justice is that it identifies the monetization of remedies for such harm as the key to
allowing the interface with insurance to develop.
These two features – monetization of remedies for non-pecuniary harm, and the
developing interface with insurance – dominate much of Chapter 4, ‘Monetary dam-
ages’, as it progresses. And on reflection it is clear why this is so. This chapter allows
the important link between money, and the account of regulation or governance through
civil remedies in ‘consumer societies’, to be developed. There are two aspects to this.
First, drawing almost solely on the case of non-pecuniary losses, O’Malley is able to
argue that the official meaning of money damages in such cases is that they allow for
the purchase of ‘pleasure’ (‘solace’ or ‘consolation’ may be appropriate words borrowed
more directly from the law of damages, including defamation law). I imagine, though
with some hesitation, that this fits with the idea of what the role of ‘consumers’ is thought
to be: to purchase things that satisfy their desires.
5
Second, it enables the link between
the monetization of harm, and distributive effects, to be made. This link is essential to the
idea that damages enable a flow of information through monetized circuits and that
ultimately harms are regulated in this way (particularly, through pricing signals). This sec-
ond point is more clearly fundamental to the view of law in consumer societies set out in
The Currency of Justice, for it is really the capacity of tort to enhance these distributive
effects which causes tort rather than contract to occupy the central role in the account
of civil remedies (or sanctions) presented. ‘Contract’ is perceived here in terms of a par-
ticular, individualized form of relations, while ‘tort’ is seen as having been transformed by
its interface with insurance (enabled by the money form of damages). This distinction in
treatment is emphasized in the final chapter, where (as we have seen) the rise of neo-
liberalism is described as advancing a ‘contractual’ model of relations and is addressed
in terms of a resurgence of the disciplinary and punitive aspects of private law which pre-
dated the distributive turn made possible through insurance – and hence money.
Dialogue & Debate 517
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