The Currency of Freedom?
| Published date | 01 December 2011 |
| Date | 01 December 2011 |
| Author | Pat O’Malley |
| DOI | 10.1177/096466391102000408 |
| Subject Matter | Dialogue & Debate |
The Currency of Freedom?
Pat O’Malley
Sydney Law School, Australia
The Currency of Justice is in degree a sustained complaint that while money is the
predominant sanction in contemporary law and justice, it has largely been ignored in
socio-legal and criminological theory – as if it were socially and legally inert or so
obvious in its nature and effects as to require no research or theorizing. As the commen-
taries in this dialogue suggest, the book pointed to the significance of an unaccountably
neglected field of research and theory and provided some provocations, rather than pro-
viding a comprehensive coverage or definitive answers. Given the diverse range of
issues raised by the three commentators, I will first provide a brief summary of the
book, slanted in such a way that their relevance and fruitfulness will be clear to those
not familiar with it. In the subsequent discussion I will begin to suggest how this debate
opens out lines for further development in both theory and politics.
A Brief Overview
Unevenly since the 19th century, money has come to be the predominant sanction in
criminal, civil and regulatory law. In part because money is (thus far) what Simmel calls
‘undifferentiated’ – meaning that we cannot identify whose money is on the table – it has
acquired a vital legal characteristic: it is just about the only sanction that does not have to
be expiated by the wrongdoer. Fines can be paid by anyone on behalf of anyone, while
damages are usually paid by insurers. In this way, ‘justice’ has become legally disarti-
culated from individual wrongdoers and, I argue, has focused rather more on distribu-
tions of harm and risk. In addition, money sanctions are not the sanction deployed
where the aim is to extirpate an unwanted action. Rather, money sanctions literally rather
than figuratively price unwanted behaviours and/or their consequences, and in this way
are used to shape risky distributions. The rise of consumer society has been closely
linked with these developments, especially because money becomes ubiquitous and thus
available as a universal sanction, and also because money becomes a particularly appro-
priate sanction in a society that centres commodity relations. Tort damages for non-
pecuniary harms are seen to provide compensation through the purchase of pleasure
to offset pains suffered; contractual damages assign and price risks to profits or services;
fines work through the denial of purchasable pleasures and necessities.
The rise of risk as a technique of liberal governance is also closely intertwined with
this monetization of justice. Damages redistribute harms and risks through mechanisms
of monetary compensation, and thus have come to be imbricated with the liability
546 Social & Legal Studies 20(4)
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