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Legal History of MoneyRoy Kreitner

Faculty of Law, Tel Aviv University, Tel Aviv 69978, Israel; email: [email protected]

Annu. Rev. Law Soc. Sci. 2012. 8:41531

First published online as a Review in Advance onJuly 20, 2012

The Annual Review of Law and Social Science isonline at lawsocsci.annualreviews.org

This articles doi:10.1146/annurev-lawsocsci-102811-173902

Copyright c 2012 by Annual Reviews.All rights reserved

1550-3585/12/1201-0415$20.00

Keywords

political economy, banking, currency, constitutional approach,monetary theory

Abstract

The legal history of money is not a well-defined field with a canon

an accepted set of questions and conflicts. This review muses abou

possible reasons for the late development of the field and then revthree areas of scholarship in which a legal history of money is emer

international political economy, studies of banking and central ban

and the constitutional approach to money. The constitutional apprbrings together the best insights from the other two approachesthematizes the mutual constitution of political and economic categ

through money. The review closes by suggesting that the fututhe legal history of money lies in development of the constitut

approach.

415

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Money is a creature of law. A theory of money must

therefore deal with legal history.

Georg Friedrich Knapp (1924 [1905])

INTRODUCTION

One might have expected that the legal history

of money would be a well-developed field, withan accepted corpus of primary and derivative

works and a set paradigm of problems and de-bates with well-defined camps. Indeed, theo-

ries of money seem to divide into camps with

fairly well-established lines of filiation. Thus,economic theories of money have been divided

into real and monetary analysis (Schumpeter1954) or into monetary theories of credit and

credit theories of money (Arnon 2011). The ex-pectation of a developed debate in legal history

could flow from the fact that three authors ofcanonical works of social theoryMarx, Sim-

mel, and Webereach devoted intense energyto developing theories of money and that they

all accorded significant attention to legal de-velopments as pivot points in the expansion

of money economies (Marx 1973, 1976; Sim-

mel 2004; Weber 1978). Those works spawneda long running engagement with money in

anthropology and sociology (Carruthers &Ariovich 2010; Graeber 2011; Maurer 2006,

2011; Zelizer 1997). And Knapp (1924), who

would be an important influence on no lessthan John Maynard Keynes, opened his workby declaring that a theory of money must deal

with legal history. So a century ago, at least, itseemed that the legal history of money would

be a growth industry.But in fact, the legal history of money is a

field in the making. I do not say this as a tru-

ism, in the sense that every active field is in theprocess of making itself over, realigning with

every new piece of work. My claim here is more

literal and more prosaic. Here is a slight over-statement of that claim: Unlike the legal historyof labor, marriage, the corporation, or a host of

other categories of complex social action heav-ily dependent on law, the legal history of money

as such has not developed a substantial corpusof scholarly treatment. There are works but no

canon; there is no accepted set of questions th

a legal history of money must answer or eveask, no basic division into theoretical outloo

around which to organize a field.1

This lack is somewhat surprising, so befo

going on to try to make sense of the existinliterature, it seems worthwhile (or at least i

teresting) to speculate on the possible reasofor the slow growth of the field. I sugge

two possible explanations, neither of whichcompletely satisfying but both of which a

somewhat intriguing. The first explanation

intrinsic to the subject, intimately tied to tnature of the history of money; the second

completely contingent and accidental.The first, intrinsic, explanation for the la

of a legal history of money stems from moneyimperative to forget its origins and its mech

nism. The basic idea of this imperative is thmoney is, in and of itself, a thing of little us

Its value comes from the fact that it can be echanged at will for all the useful things, and th

exchangeability is based only on the belief thother people will accept it in exchangethat

that they will part with useful things in retu

for money. Iterations of this idearangefrom tcomic to the common sense to the philosoph

cally sophisticated and possibly beyond. A feexamples are instructive. Sommer (1998, p. 2

wrote,

Moneyas a social phenomenonworks best

when the validity of the underlying rules is be-

yond question, the transparency near-perfect,

the infinite regress ignored. It is tempting

to quip: Money is a miracle, its operations a

mystery, and we had better not question too

closely its authority. Or another quip: Money

is like the cartoon characters who run over a

cliffthey never fall until they look down. If

1To be concrete: Imagine a student comes to office hoand wants to study the legal history of contract, tort, or mriage. One barely has to think to get her started in the rigdirection, and there may even be encyclopedia articles fr

which to draw initial bibliographies (Critchlow & VandMeer 2012). Nothing of the sort exists for the legal histof moneyat least, not yet.

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a law regarding a money is sufficiently con-

tested, it will no longer be the law of a money,

because whatever the money was will have

ceased being a medium of exchange.

Or consider Pooveys (2008, p. 3) claim thatmoney has been naturalized, becoming so fa-

miliar that it is taken for granted: [T]hroughthe social process that I describe in this book,

money has become so familiar that its writinghas seemed to disappear and it has seemed to

lose its history as (various forms of) writing.

Marx (1973, 1976) also had a detailed explana-tion ofhow money blinded its users to itshistory

and its very nature. Marxs account was not asintuitive as Sommers appeal to cartoon charac-

ters, but a common thread connects them. ForMarx, money was the culmination of the com-

modity fetish, its very form serving to concealthe social relations among people. Forgetting

the origins of the money form was precisely thesin of bourgeois economics (Marx 1973,

pp. 198201; 1976, pp. 18081). Andthe insighthas been pushed even further by Zizek (2006,

pp. 35154), who argues that even when we are

taught to understand the commodity fetishismthat engenders the dazzling money form, we

consistently forgetwe can never be truly con-vinced (as a practical matter) that the fetishistic

objects themselves have learned the lesson.

The common thread in these examples is theclaim that money, to function effectively, mustefface its history. If money is based on confi-

dence, such reliance cannot be recalled in realtime because any reminder of confidence en-

tails a trace of distrust, a trace that might beenough to undermine the role of confidence it-

self. Taken to the extreme, this line of thought

suggests that the same impulse that compels anunderstanding of money as colorless and odor-

less demands that money erase memory itself

(Spang 2005, Yuran 2013).The second explanation for the underdevel-

oped state of the field is, as mentioned, wholly

contingent, and it lies in the work that mighthave been the fields foundational document,

Hursts (1973) A Legal History of Money in the

United Sates, 17741970. Admittedly, this is a

counterintuitive or even paradoxical claim be-

cause Hursts book, on the face of things, hadall the makings of a text that could organize a

field. It was broad in scope, it named its fieldstraightforwardly (legal history of money, no

less), it presented an analytical structure thatcomprehends much of the conflict over money

(dividing the work into questions of substantivepurposes of law affecting money, on the one

hand, and allocation of power among agencies,on the other), and it had behind it the author-

ity of the person most responsible for reviving

American legal history and extracting it froman internal focus (Gordon 1975). What more

could one ask?It turns out, I would argue, quite a bit. The

plain fact of the matter is that although Hurstsstudies of the relationship between law and eco-

nomic development spawned an entire industryof legal historical work,2 his money book gener-

ated no following at all. Of course, many peoplehave written fine books that did not spur fur-

ther research in their fields, and one would beloath to blame their books for a lack of fur-

ther activity. The case of Hursts legal historyof money, however, may be special. The dif-

ference between most of the body of Hursts

work and his book on money lies in how in-teresting law is for the development of a field.

In his work on economic development and in

particular studies such as his grand opus on thelumber industry in Wisconsin, Hurst showedin blinding detail the extensive impact of reg-

ulation (through contract, tort, property, wa-ter law, police powers, etc.) on development,

even when many of the actors involved claimedallegiance to laissez-faire (Hurst 1964, 1982).

Law, in these studies, is one mode of rationality

in social action, and it is both a site of con-flict (groups struggle over laws content) and

in conflict with other modes of action; that

2For an indication of the scope of this work, one could be-gin (but only begin) by consulting three symposia dedicatedto Hursts workLaw and Society Review in 1975, AmericanBar Foundation Research Journalin 1985, and Law and HistoryReview in 2000the last of which highlights the influence ofHurst on a generation or more of American legal historians.

www.annualreviews.org Legal History of Money 417

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is, the question of whether an issue will be

settled by law or through other mechanismsis a point of contention. Law is not simply a

mode of achieving ones goals but rather oneof the places where the meanings of claims are

established.A generous reading of Hursts history of

money might conclude that the same dynam-ics were at work there. However, it would not

be an easy claim to sustain. Instead, the reader isconfronted with a much more passive (and evo-

lutionary) Hurst than she might be accustomed

to and one almost completely deferential to re-ceived wisdom about monetary management.

Thus, one sympathetic reviewer concluded thatthe message of the book was to show

the trend over two centuries for policy mak-

ers to gain an increasingly sophisticated un-

derstanding of the nature of money and come

gradually to the realization that control over

the money supply and credit is a proper func-

tion of the national government. This realiza-

tion came belatedly, after more than a century

and a half of misunderstanding the nature of

money and hence both the issues and the pol-

icy questions. Moreover, given the American

predilection to leave monetary matters wher-

ever possible[,] to the determination of mar-

ket forces there was little disposition. . .to use

monetary policy to shape the direction or pace

of economic change. (Coleman 1974, p. 157)

This was not an idiosyncratic reading(Nugent 1975, Samuels 1974). It betrays an odd

fact about the book: Hurst is usually so attentiveto the fact that law is one site for the creation

of the very meaning of the economic stakes, butwhere money is concerned, he appears to distin-

guish sharply between the nature of money, onthe one hand, and laws impact on money man-

agement, on the other.3 In other words, Hurst

3Some readers may conclude that this interpretation is toogenerous regarding Hursts success in other areas of his re-search regarding the mutually constitutive relations betweenlaw and economy. Harris (2003), for instance, argues thatalthough Hurst repeatedly declared that causation between

largely misses the importance of the legal f

determining the very nature of money, and theventually pushes him toward an argument th

law or a legal perspective is simply not all thinteresting for understanding money. So, wh

Hurst (1973, p. vii) prefaces by saying that legal historian should not attempt independe

judgments that call for expertness in other thlegal matters, we could chalk this up to mo

esty; but the next sentence belies a deeper prolem: His task is, rather, to borrow the opinio

of qualified specialists outside the law in ord

to provide a meaningful context in which to apraise what the law has done or failed to d

(p. vii). In this, Hurst gives himself over to tperspective of one set of commentators regar

ingthe development of money, practically eliminating the potential for law to have a definin

impact on money as an institution. It has besaid that the generation of legal historians fo

lowing Hurst took up his mantle by developinthe insight that law is constituted by society

the same time that it has a constitutive functioin that society (Fisk & Gordon 2011). Hurs

book on money, however, left little room f

laws constitutive power, and it thus signaled readers and potential researchers that mon

might not be a productive site for legal historIn the remainder of this review, I have tri

to concentrate on work that implicates the h

tory of money but have ignored for the mopart the related history of finance. Temporalthis review considers almost exclusively wo

published in the past two decades. The firsection concentrates on the smatterings of l

gal history of money that can be found in lareviews, with particular attention to the limit

tions of the law review literature. In essence,

concludes that, despite a number of exceptionthe law reviews are not the place to look f

the legal history of money. The second secti

lawand economy was reciprocal, theapplication of hismoof reciprocity was deeply problematic and ultimately failedturning theideaof interacting spheres into a workablemodHe concludes that while Hursts model aimed at interreling legal and economic change, it achieved more in accouing for the impact of the economy on the law (pp. 3252

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then asks the obvious question: If not in the law

reviews, where should we look? It answers thatquestion by pointing to three bodies of work

from which we can extrapolate the shape of afield and from which we can generate specula-

tion as to where the field is headed.

THE LAW REVIEWS, OR WHERENOT TO LOOK FOR THE LEGALHISTORY OF MONEY

The legal history of money appears in law re-views, but it does so sporadically. What I mean

by this is not simply that there are only occa-sional articles on the topic (that is true, but it is

true of a host of fields) but rather that those arti-cles that do appear typically confront the reader

as if they were written in isolation. There is al-most no dialogue among them, almost no sense

of shared questioning, almost no sense of in-

cremental addition to an existing body of work.A researcher hunting through a database might

be struck by the number of authors who havewritten a single article on the legal history of

money.4

Articles on the nature of money often in-

clude an historical component. Sometimes, his-tory is the main focus, as in Mensels (2010)

illuminating account of counterfeiting in an-tebellum America, which interrogates the his-

tory of the responses to counterfeiting as drivenby a deep insecurity over the value of rep-

resentative money more generally and bankmoney in particular.5 More often, however, le-

gal history functions more as background for

a normative claim. Chungs (2009) Money asSimulacrum: The Legal Nature and Reality of

4The researcher might be forgiven for concluding that forthe law review authors she encounters, the legal history of

money is a side project, perhaps something that drew theirbrief attention while working on some more central interest,

whether it is a normative question of contemporary monetaryregulation or a different historical question tangential to aparticular monetary issue.

5Mensels (2010) work has the additional advantage of bring-inga legal focus into dialogue with Mihms(2007) up-to-datehistorical work on money and counterfeiting that, perhapsparadoxically, treats law as a relatively minor theme.

Money and Bruners (2010) The Changing

Face of Money are cases in point. Each in-cludes, as a major components, a brief history

of money. Chung, for instance, runs througha survey of paper money in the colonies, the

framers view of money, the free banking era,the Civil War and theLegal Tender Cases,thees-

tablishment of the Federal Reserve, the BrettonWoods regime, and the final break from gold

under Nixon. Bruners briefer history beginswith Adam Smith and concentrates primarily

on the greenback period, eventually reaching

the present. In works such as these, the historyof money is not an independent goal but rather

is pressed into service to support a claim re-garding moneys evolution away from tangible

resources and toward a growing sense of un-reality associated with our financial system and

our money (Bruner 2010, p. 400). Althoughthe combination of the inquiry into the nature

of money and its legal history is promising (andI return to it below), fulfillment of that promise

requires a critical engagement with the historyitself.

Another strand of the law review literature

onmoneyslegalhistoryfocusesonthequestionof Congresss constitutional power to regulate

money and, in particular, on the authorizationof legal tender paper money as that issue arose

in the Legal Tender Cases following the Civil

War. This work ranges from a painstakingand careful reconstruction of the originalunderstanding of the coinage clause that reha-

bilitates the constitutional argument justifyingthe power to authorize paper money (Natelson

2008), all the way to the polemical argumentthat paper money is a fundamental undermin-

ing of constitutional authority (Khan 1999),

with a few way stations in between. Khans(1999) article is an ideological tour de force, be-

ginningwiththepremisethatmoneyisamarket

mechanism, which precedes the state andwhichthe law is called upon merely to recognize andsometimes, to clean up the mess the market

leaves behindits monetary adventures (p. 396).Claiming that only gold and silver are constitu-

tional money, the article proceeds to argue thatthe limitation of money to gold and silver had


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the status of a universal truth (p. 397) at the

time of the constitutional convention and that[t]he experience of the Continental Congress

had proven beyond a doubt that nothing butspecie ought to be the money of the United

States (p. 407).6 The articles polemical thrustregarding the nature of money is mirrored by

its unidimensional conceptualization of thelaw: Law is viewed as congressional action, and

the market is imagined as wholly extralegal.Natelsons (2008) article, by contrast, is a much

richer historical investigation. It describes in

detail colonial innovations in the monetaryrealm (including various nonmetallic monies)

and then goes on to investigate the likely mean-ing of the coinage clause for the ratifiers of the

Constitution (rather than limiting itself to theframers, as is typical in originalist scholarship).

It shows definitively that the term to coinmoney was susceptible to a range of meanings

and that the idea that the only money wouldbe gold and silver was far from absolute. On

the contrary, Natelson (2008, p. 1067) believesthat the weight of the evidence suggests that

the meaning the ratifiers chose was broad

enough to include the power to coin paper. 7

Natelson and Khan are opposing endpoints

in many ways: methodology, historical depth,and substantive conclusions. There are note-

worthy contributions in between them on sev-

eral of these fronts, two of which I will men-tion here. The first is Levys (1998) intriguingly

6This claim is particularly puzzling, almost on its face. Al-though many observers viewed the eventual fate of the con-tinental paper currency with chagrin, most agreed that theRevolutionary War could not have been prosecuted withoutit and that without the paper currency, independence wouldnot have been achieved.

7Natelson (2008, p. 1079) is cautious throughout, but bythe time he is ready to conclude, his tone becomes moreconfident:

According to the original understanding, the Con-stitutions Coinage Clause granted to Congress theexpress power to coin money andbestow legal tenderquality upon that money. . . . In addition, the moneythus coined did not need to be metallic. Paper orany other material that Congress selected would suf-fice. Because the power to coin paper was express,it requires no justification by the incidental powersdoctrine of the Necessary and Proper Clause.

titled A Legal History of Irrational Exube

ance. This wide-ranging essay stays close traditional legal sources, relying primarily o

close reading of doctrine as developed by tSupreme Court in the wake of financial pa

ics. Levys reading is incisive, and he uses thmoments of crisis to elucidate distinct view

of the nature of money and the constitutionrole of government in the face of instabilit

The pressure of panic, even when looked at judges after the fact, squeezes ideology from t

Courts every pore, often in the form of a pa

tially articulated political economy groundedconstitutional terms (p. 801). Some of the ca

studies deal with labor and bankruptcy, but thcore of the argument revolves around the w

panic shapes the power over money.8 The facinating thing about the piece is its ability

draw a vision of political economy from judicdecisions over doctrinal details. Crises are pa

ticularly rich on this score because emergenaction requires specific justifications, and tho

justifications often make sense only in the cotext of an encompassing vision of the meanin

of the crisis itself.Maglioccas (2006) New Approach to Co

gressional Power: Revisiting the Legal Tend

Cases is something of a mirror image of LevyIrrational Exuberance. Levy mines the do

trinaldiscussionfor coherent world views abo

the political economic context from which dotrine emerged, with the meaning of money apearing as a central feature of those views of p

litical economy; Magliocca, inversely, abstracfrom the political economy context to deri

coherent constitutional conceptions. The ushot for his work is to take these reinterpret

constitutional principles and apply them to cu

rent constitutional debate, in particular overtdoctrine of implied powers (Magliocca 2006

This work is powerful in explaining how co

flicts over themeaning of money were occasio

8Levyuses panicsto illuminate theattitudetoward money nonly in such extraordinary circumstances but also under nmal circumstances, a strategy reminiscent of Kindleberge(Kindleberger & Aliber 2005) classic work, Manias, Crashand Panics.

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for the development of constitutional practices,

but its focus on the Constitution is fairly exclu-sive, and the meaning of money itself is just the

scenery for the main, constitutional show.9

Overall, the bulk of the law review litera-

ture is less than satisfying for the reader inter-ested in the legal history of money. Too often

that literature rests on assumptions that distin-guish sharply between money as a market phe-

nomenon and law as an intervention into anotherwise autonomous sphere. Much of the dis-

cussion focuses quite narrowly on litigation and

almost exclusively on the constitutional plane.And too often historical pronouncements of

judges are taken as evidence of the history theydescribe rather than analyzed as evidence for

themindsetoftheperiodinwhichtheyarewrit-ten. There is, of course, work that overcomes

these obstacles. That work is worth reading, butit does not present a sufficient picture of where

the legal history of money has been and whereit might be heading.10

WHERE THE LEGAL HISTORY OFMONEY IS BEING EXPLORED

If the law reviews are not the place to searchfor the legal history of money, where should

we look? In what follows, I suggest three sites.These are not quite well-defined, and there

are fairly obvious instances of overlap as wellas difficulties in delimiting the scope of the

fields. Nonetheless, the division may be use-ful in making sense of different strands of de-

veloping work. The three sites I discuss are

9Magliocca (2011) has also written a wonderfully engagingbook on the constitutional politics surrounding the electionof 1896. However, despite the centrality of the money ques-tion for the election, the book concentrates on general con-stitutional considerations and leaves the analysis of money

even further from the center of the action.10I have notmadeextraordinaryeffortsto befair tothe lawre-

views. This will become clear when I discuss the most promis-ing scholarship for the legal history of money below, what Irefer to as the constitutional approach to money, includinginstances of that approach that appear in law reviews. As Ido not expect anyone who reads law review articles to stopdoing so because of what I have written here, little rides onthe classificationit is here for ease of exposition alone.

(a) work on the international political economy

of money, (b) histories of banking and in par-ticular of central banks, and (c) recent work on

what I refer to as the constitutional approach tomoney.

International Political Economy

International political economy (IPE) is ob-

viously a huge and unwieldy category, withdiverse meanings for its various participants.

Broadly speaking, IPE is the field that lies atthe intersection between three disciplines and

one phenomenon: The disciplines are political

science, international relations, and economics,and the phenomenon is globalization. The la-

bel IPE has been itself at times a point of con-tention, but I ignore that conflict which is be-

yond the scope of this review.11 In addition, Imake no attempt whatever to survey the state

of the field in IPE generally but limit the fo-cus along two dimensions: only those studies

that pursue a line of historical inquiry and onlythose that concentrate on money. Thus delim-

ited, it is possible to distinguish (loosely) be-

tween two strands of work in IPE, the first ofwhich puts most emphasis on politics and the

second of which attributes more weight to eco-nomics. However, a caveat is in order: The dis-

tinctive feature of IPE is that both economicsandpolitics are alwayson the table. The distinc-

tionbetweenthestrandsisamatterofemphasis.

IPE (a)the political branch. A good start-ing point for understanding the political branch

of IPE is a collection of essays published in2003, Monetary Orders: Ambiguous Economics,Ubiquitous Politics (Kirshner 2003b). The title

says a great deal about the project and about

11The beginnings of the conflict date back more than 40 yearstowhen Strange (2002, p.190)used the termto call for a shiftin focus in studies of international relations, economics, andpolitics: Instead of developing as a modern study of interna-tional political economy, [thestudy of international relations]is allowing the gulf between international economics and in-ternational politics to grow yearlywider anddeeper andmoreunbridgeable than ever.


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this branch of IPE. The underlying theme pur-

sued in most of the contributions to the col-lection (and elsewhere in this branch of IPE) is

that economic justifications for money regimesand monetary policies are forwarded through-

out history but that the economic science back-ing those justifications is far from conclusive for

generating policy recommendations. Instead,a congeries of political considerations is actu-

ally doing unstated work in producing mone-tary institutions. Those political considerations

range from ideologies to interest group conflict

over distribution to geopolitics (Grabel 2003;Kirshner 1995, 2003a). For example, mid-

twentieth-century developments in monetarypolicy of Southern Hemisphere countries

(and particularly divergence among them de-spite similar economic contexts) are explained

through foreign policy preferences of theUnited States, Britain, and France (Helleiner

2003a,b); the rise of the gold standard is ex-plained not as a mode of economic discipline

of states but rather as an aspect of state for-mation (Knafo 2006); preferences for gold or

silver as backing for the dollar are positioned

in their context of conflicts over how to pur-sue dollar diplomacy and whether to pursue a

policy of imperialism (Rosenberg 2003); a half-century of Argentine experimentation with ex-

change rate policies is explained by distributive

considerations among interest groups (Schamis2003); and Chinas exchange rate policy (andespecially the anti-inflation stance of those re-

sponsible for its monetary policy) since majoreconomic reform of the late 1970s is explained

by international reputation and prestige (ratherthan economic efficiency) (Wang 2003).

An additional distinguishing feature in this

line of IPE work is its emphasis on the idea thatthe economy and the categories of knowledge

about the economy are not completely distinct

but rather involved in a dialectical relation-ship. This idea has many versions with manysources, but for studies of IPE it follows mostly

on the work of Strange (2002). Whether theyresort to Stranges concept of structural power

or look directly to theideological power of ideasin affecting policy choices, the studies seem

joined by the claim that with regard to mon

the power of ideas does more than just shathe possible. It defines the feasible (Kirshn

2003a, p. 12). Or in an even more trenchaformulation, [T]he politics of ideas is impo

tant.Notonlydotheideasthatunderpin[financial] markets dictate specific governance sol

tions, but also such ideas are valuable politicweapons (Blyth 2003, p. 239; Strange 1998)

IPE (b)the economic branch. The ec

nomic branch of IPE is motivated by the samquestionsthatdrivethepoliticalbranchandp

marily by the question of why states and othactors (regulatory institutions, central bank

firms, individuals) decide the way they do abomoney, monetary policy, or monetary regim

This branch of work does not by any meaignore political considerations of the type d

cussed above. It does, however, place moemphasis on economics, in two ways. Fir

this branch of the literature relies more o

economic indicators to describe the historiccontext, and second, it rests more heavily o

economic determinants of behavior. Thus, twork in this branch maintains tighter links th

the political branch to the academic disciplinof economics and economic history, metho

ologically coloring its account of history at bo

the descriptive and explanatory levels.Although economically oriented investig

tions of IPE are legion, the focus on mon

tary history allows for some narrowing of tfield. Globalization over the past three decad

has spurred an interest in earlier periods

globalization, and this branch of IPE has beone of its most fruitful avenues. In the mo

etary realm, significant historical work has apeared on bimetallism (Flandreau 2004, Redi

2000) and on the relation between moneta

integration, exchange rate regimes, and ecnomic growth (Bordo & Flandreau 2005, Fladreau & Zumer 2004, ORourke & Williams

1999), and lavish attention has been heapupon the gold standard, in particular its he

day stretching roughly from 1870 through 19

(Bayoumi et al. 1996, Bordo 1999, de Maced

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et al. 1996, Eichengreen & Flandreau 1997,

Gallarotti 1995).Among economically oriented scholars with

a decades-long focus on monetary issues,Eichengreen (1992, 2008, 2011; Bayoumi et al.

1996; de Macedo et al. 1996, Eichengreen &Flandreau 1997) stands out. As an author (alone

or in his many collaborative projects) and as aneditor, Eichengreens work covers an incredi-

ble range, and I will mention only a few im-portant works here. In one of his most detailed

studies, Eichengreen (1992, p. 4) overturned

the prevailing wisdom regarding the gold stan-dards contribution to stable economic con-

ditions, showing definitively that the interwargold standard was the principal threat to fi-

nancial stability and economic prosperity be-tween the wars. His general history of the

international monetary system combines eco-nomic and political considerations, arguing in

part that domestic political pressure from inter-est groups enfranchised over the course of the

twentieth century (in particular, labor) madethe sacrifices of the gold standard impossible to

bear as the century wore on. Thus, the overall

explanation for the grand shift from a regimedefined by a mutual anchor to one based on

floating currencies is rooted in large measureon political considerationspredominantly on

theriseofademocraticpoliticsinmostWestern

countries (Eichengreen 2008). Indeed, Eichen-greens grounded historical perspective and hisdiscussions of its implications for todays finan-

cial architecture (Eichengreen 2011) are a con-stant blend of politics and economics, making

him a bridge between two styles of IPE.

Histories of Banking

Banking history must be central for the legal

history of modern money. As a vulgar gener-

alization, it might be said that banking histo-ries tend to divide into two groups: those thatconsider primarily the domestic banking sys-

tem and those that concentrate on banks inter-national dimension. The latter, internationally

oriented studies, often focus on central banksas the primary agents responsible for managing

currencies under conditions of monetary inte-

gration. The somewhat odd result is that as faras histories of banking go, globalization is pri-

marily dealt with on thelevel of state agenciesthe central banks. Clearly, central banks play

a crucial role in monetary integration, but therole of commercial banks, investment banks,

and even the shadow banking system is also crit-ically important, and it seems that research into

their history is just getting underway.Domestically focused banking histories vary

widely across issues of methodology, monetary

theory, and ideology. At one extreme end ofthe spectrum lies a view of money as properly a

private device that is corrupted by governmentin search of ways to fleece its citizenry, both by

inflating the currency and by creating a perma-nent debt that will justify later taxation (Roth-

bard 1994, 2002). Rothbards (1994, 2002)view goes beyond attacking direct government

action (for instance, printing money or estab-lishing a central bank) and aims just as fiercely

at governments sponsorship of fractionalreserve banking generally, which is portrayed

as fraud. Less polemical forms of the argument

concentrate on historical critique of govern-ment stewardship of monetary functions as well

as its regulation of private banking, implyingthat market discipline is more effective and less

prone to corruptionthan government oversight

(Dowd & Timberlake 1998, Timberlake 1993).At the other end of the spectrum in terms of

thetheoryof money, Hixson(1991, 1993) inter-

prets US history as a long series of events show-ing that specie-based currency is inherently un-

stableandthatgovernment-issuedpapermoneyserved the public interest, whereas bank-issued

moneyserved primarily the bankers themselves.

In between lie histories whose political stakesare muted. Some of these are official or almost

official histories, whose sources are primarily

internal bank documentation. Meltzers (2003)monumental two-volume history of the Fed-eral Reserve is an exemplar of the genre, re-

lying primarily on minutes of years of FederalOpen Market Committee meetings to recon-

struct the motivations and even the worldviewsof the committee members who refashioned


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central banking. Capies (2010) official history

of the Bank of England is another representa-tive example.

Other central bank histories are written atvarious levels of distance from the banks own

perspectives, sometimes looking to history asa lesson to future bankers (de Haan 2000) and

other times mining history to understand majorshifts in political economy (Maman & Rosen-

hek 2011). Internationalist histories of centralbanks have been inspired for the most part

by new instititutionalist economics. They have

added a comparative flavor to the history ofbanking, and in some ways the comparative

perspective lends itself to theorizing about thefunctions of central banks more fluidly than in-

dividual case studies (Giannini 2011, Goodman1992, Siklos 2002, Singleton 2011).

The Constitutional Approachto Money

A reader of the previous two subsections (onIPE and banking histories) could be forgiven

for wondering whether they describe anythingthat should be thought of as the legal history

of money. Clearly, they are not written from

a perspective that puts the law first. However,because these histories are concerned with the

changes in official institutions over time and

those institutions are founded, managed, andtransformed at least formally through legal ac-tion (first and foremost by statute), the histo-

ries are attentive to legal change and at times tolegal detail. Nonetheless, their attitude toward

legality as simply themedium in which political,social, or economic forces exhibit final manifes-

tations is a serious weakness. It assumes, in large

measure, that legality is transparent.This is where the constitutional approach

to money comes in. Instead of seeing the le-

gal realm simply as the mass of details throughwhich policy is implemented, it takes seriouslythe idea that legality is constitutively impor-

tant. For some aspectsof moneys history, legal-itys constitutive significance is obvious (once

pointed out): For example, medieval commod-ity monies were assumed, by contemporaries,

to be a kind of property. They were pro

erty subject to sovereign manipulation, in tform of devaluation, depreciation, recalibr

tion, but property nonetheless. Modern fidciary monies, on the other hand, were built

promises to paythat is, contract. Contract etended liquidity in a sense nearly unimaginab

for a world where money was limited to proerty (Desan 2010a). (For some indication of t

scale of expansion once fiduciary money tohold, see Sylla 2010.)Thus, from certainangl

at certain times, we can see legal concepts d

ing the primary work of differentiating betwedifferent money systems that imply different s

cial relations. Lawis notsimply an add-ondetbut rather the place where the categories th

shift moneys meaning, roles, and functions aconceptualized and created.

So, law plays a constitutive role, but monitself is a constitutional project. The constit

tional approach rests on a claim that monis always a set of practices orchestrated by

group to mediate value and to guide its circ

lation. Different legal arrangements of monwill thus be open (or closed) to different mov

ments of value, differing relations among gromembers and among members and nonmem

bers. Each monetary form configures interation in distinct ways, setting up a new set

risks, rewards, relations, and expectations. Cr

cially, each new configuration shifts the distbution of resources, setting in motion processthat create new sets of winners and losers, ne

stakes for economic competition, and new drections for social development. Such projec

do not just happen; they are engineered. Th

are expensive to manage and maintain, and thseek not simply effectivity and power but al

legitimation.This approach to money offers a twist

Knapps opening aphorism that a theory

money requires a legal history. It suggesalongside this, that a legal history requirestheory of money. Understanding money

a project collectively engineered and orchetrated to create liquidity, it undermines notio

of moneys spontaneous evolution and trelated concept of moneys neutrality. Mon

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is always, on this account, a project that relates

participants one to another and each to thegroup, defining authority and distributing re-

sources as it operates (Desan 2013; C. Desan,unpublished manuscript entitled Making

Money: Coin, Credit, and the Coming of Capitalism

in the English World). A theory needs to explain

how a given society can generate the operationsthat become known as the functions of money,

inducing people to measure value (or priceobjects)throughit,toposititasthemodeofset-

tling debts, and to have it circulate in exchange.

The most important answer to this questioncomes through the power of the sovereign to

tax: When thestate, as thebiggest creditor (whois also the biggest debtor) in society, singles out

a particular resource (even an otherwise worth-less piece of engraved paper, for example) as the

mode of settling debts with it, effective demandfor that resource is guaranteed at least to the

level of effective taxation (Wray 1998, 2010).Before moving on to a few examples of this

approach, one additional general comment isin order. A distinctive feature of much of the

work in this vein is that it is an inquiry into

both concrete institutional arrangements andgoverning ideas at once. Thus, the constitu-

tional approach interrogates not only the ac-tions that make up monetary policies but also

the categories of knowledge about money and

their production and effects. It therefore in-cludes a reflexive posture on the history of eco-nomic thought, opening with the sociological

insight that the categories of economic thoughtdo not simply describe an existing economy but

rather help make that very economy.12And thefocus tends to be on the way economics ob-

scures, perhaps even forgets, money or at the

very least naturalizes it. There are, then, twoaspects to this reflexive posture: first, a recog-

nition that as a result of naturalization, money

has come to seem simply like an instrument

12As mentioned above regarding a related idea, this insighthas many origins. I call it sociological here because some ofits most provocative (if somewhat gnomic) articulations havecome from Bourdieu (1990) and have been turned into pro-grammatic form by Callon (1998, C alskan & Callon 2009).

instead of something that was made to be used,

in some ways and not others, as part of institu-tional practices that naturalization also tends to

mask (Poovey 2008, p. 4) and, second, a claimthateconomicsasadisciplineplaysaspecialrole

in that naturalization. This results from the factthat much of economics treats money as a veil

over real transactions (exchanges of goods andservices) that can be ignored or abstracted away

from analysis. In its extreme, classical articula-tion, the proposition that money is neutral is

literally a denial of any specificity for money

and thus of any role for it in the analysis of theeconomy: There cannot, in short, be intrin-

sically a more insignificant thing, in the econ-omy of society, than money. . . . The relations

of commodities to one another remain unal-tered by money (Mill 1848, p. 8). This gap in

economic theory has not gone unnoticed in thediscipline, and one influential book opened by

noting it: The most serious challenge that theexistence of money poses to the theorist is this:

the best developed model of the economy can-not find room for it (Hahn 1983, p. 1). 13 The

constitutional approach to the history of moneyis a direct challenge to the way economics has

allowed money to be taken for granted.

The most important exponent of the consti-tutional approach to money in recent years has

been Desan (2005, 2006, 2008, 2010a, 2010b,

2013; C. Desan, unpublished manuscript enti-tled Making Money: Coin, Credit, and the Com-

ing of Capitalism in the English World). In

a series of articles and a forthcoming book,Desan details the history of English money

from medieval times through the establishmentand operation of the Bank of England and the

history of money in America from early colonial

13Hahn (1983, p. 1) was discussing the Arrow-Debreu equi-librium model, but the sense that the discipline analyzes ex-change without analyzing money is not limited to that modeland has not disappeared over the years, as a glance at anymacroeconomics textbook will attest. One reviewer (Minsky1984) concluded that Hahn himself did not take the neces-sary steps to address the problem he raised. For two (verydifferent) attempts to explain why economics has been slowto overcome this difficulty, see Arnon (2011) and Ingham(2004).


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experience through the constitutional era. It is

obviously impossible to summarize that body ofwork here, but a few central elements are worth

mention. The overarching theme of Desanswork is that a transformation in how money was

madein particular, a shift in who paid for thecreation of liquiditywas central in establish-

ing the conditions of possibility for the onset ofcapitalism.

In broad strokes, the argument is as follows.In medieval and early modern England (before

the advent of the Bank of England), money was

created directly by the sovereign and paid forby those citizens who held silver and brought

it into the mints to be coined. The crown de-creed the number of coins (for most of the pe-

riod, pennies) it would mint per weight of sil-ver, handing back a portion to the person who

brought in the silver and keeping the rest asseignorage. People who brought in their sil-

ver did so because a smaller amount coined wasworth more than a larger amount as bullion. In

other words, the incentive to come to the mintand to pay for coin lay in the fact that coin was

liquid; it was easier to spend coin than to barter

with silver. Coin carried a liquidity premium,part of which was thus paid to the sovereign by

individuals to make money. While this mech-anism ruled, it required a constant negotiation

between sovereign and subject over the valua-

tion of coin, overmaintenanceof its quality, andover the taxation that would call it in from timeto time. The system was expanded by use of tax-

anticipation instruments (in the early modernera, wooden tallies) that allowed the govern-

ment to spend before taxing. The directionalityof the system and the stakes of the negotiation

were clear: Citizens paid the sovereign for liq-

uidity, and the sovereign committed to uphold-ing the value of the coin by maintaining taxes.

Keeping the value of thepenny high put distinct

limits on its usefulness for everyday exchangeand helped maintain tight social networks thatfaced constant shortages of small change and

that were thus forced to rely on face-to-facecredit.

The establishment of the Bank was a rev-olutionary turning point. Under the new sys-

tem, the sovereign recognized banknotes

money and borrowed those notes from tBank, formed as a private entity. It thus pr

vided liquidity to the populace and paid fit (in the form of interest on money it bo

rowed from the Bank). The sovereigns delgation of the power to create money to t

Bank based on the Banks own consideratioof when lending was worthwhile shifted bo

the locus of decision making for the creatioof money and its motivations: Whereas earli

the sovereign had decided with consideratio

stemming from political negotiations, now tdecision was in the hands of private banke

driven by the profit motive (Desan 2010a,C. Desan, unpublished manuscript entitl

Making Money: Coin, Credit, and the Coming

Capitalism in the English World).

An analogous transformation characterizthe development of early American mone

though in a different medium. Colonial goverments issued bills of credit as tax-anticipatio

notes. Thus, they paid citizens for goods

services in notes that could then be returnto colonial governments in payment of taxe

duties, or fines. Sometimes, colonial goverments managed their currencies well; som

times, disastrously. However, the nature of thpolitical negotiation andits stakes were well u

derstood. People were paying for liquidity (

essence, extending governments interest-frloans) to expand their own economic develoment. At the same time, they understood th

tax-anticipation notes (bills of credit) were onuseful internally and thus that this form of li

uidity limited economic activity to their ow

communities. Again, the establishment of thBank of the United States (and more generall

the centralization of money power through thConstitution) was the turning point. Like t

Bank of England, the Bank was a private e

tity that would multiply the money supply (the form of banknotes) according to its caculations of profit. The direct link to intr

communal negotiation over the value of monwas severed and obscured. Money came

be understood according to endlessly dece

tralized decisions about value in individualiz

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transactions (Desan 2005, 2006, 2008). In both

theEnglishandAmericancases,thelegaldetailsof making moneyguaranteeing its transfer-

ability and negotiability, ensuring that it couldbe the foundation of long-term contracts, and

providing for its circulationwere all feats ofengineering liquidity, andmany of them receive

detailed attention. However, the shift that en-gendered capitalism lay in transforming the or-

ganizing principle of liquidity from negotiatedcommunal order within limits to decentralized

calculation of limitless profit.

Although Desan is clearly at the forefront oftheorizing the constitutional approach, there is

a fair amount of work that resonates with manyof the same themes and across a range of topics.

Thus, scholarship that broadly speaking fits theconstitutional approach can be found regard-

ing currency in colonial America (Goldberg2009, Grubb 2006, Priest 2001), nineteenth-

century banking and bookkeeping (Sklansky2010; Zakim 2006, 2010; J. Sklansky, unpub-

lished manuscript entitled The Money Question:

Currency in American Political Culture, 1700

1900), conflicts surrounding the greenbacks

and later the metal backing of US money in thenineteenth century (Bensel 1990, 2000; Canova

2009; Ritter 1997), and the cultural transfor-mation and class formation that led to the es-

tablishment of the Federal Reserve (Livingston

1986), just to name a few studies in the US con-text. Outside of that setting, the constitutionalapproach is at work in fascinating accounts of

thestandardizationof currency in colonial India(Birla 2009, 2011) and in a brilliant analysis of

a dual transformation in finance and politics in

Argentina in the mid-nineteenth century, whenpublic power arose to uphold stable money,

while a class of moneyed interests emerged ableto be voluntary bankrollers of public power

(Adelman 1999, p. 277).The works I have cited as part of the consti-

tutional approach to the legal history of moneyare diverse, and thus far most of them are not in

dialogue with one another. They do, however,share a set of themes, particularly regarding the

mutual constitution of political and economic

categories through money and the view thatmoney is alwaysa negotiatedproject rather than

a spontaneously-occurring-and-then-found ar-tifact. They thus draw together many of the

best insights from IPE and from studies ofbanking, but they engage with those histories

in a way that puts the engineering of moneyand its broad societal effects at the center of

inquiry.

Perhaps money does work best when it isforgotten, taken for granted. Or at least, per-

haps that is the way it works best for peoplewho have it. However, the history of money is

one way to focus on moments when money iscontested, generalizing from moments of crisis

to show that money is always a project that mustbe created, engineered, and produced and that

its construction is never simply a matter of effi-

ciency but always also a matter of distribution.This realization is the promise of the constitu-

tional approach to money and the basis for thehope that this approach represents the future of

moneys past.

DISCLOSURE STATEMENT

The author is not aware of any affiliations, memberships, funding, or financial holdings that mightbe perceived as affecting the objectivity of this review.

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Annual Review

Law and Socia

Science

Volume 8, 2012

ContentsLegacies of Legal Realism: The Sociology of Criminal Law and

Criminal Justice

Jerome H. Skolnick p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p 1

Mass Imprisonment and Inequality in Health and Family Life

Christopher Wildeman and Christopher Muller p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p11

After Critical Legal History: Scope, Scale, Structure

Christopher Tomlins p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p31

Paying Attention to What Judges Say: New Directions in the Study

of Judicial Decision Making

Keith J. Bybee p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p69

Behavioral Ethics: Toward a Deeper Understanding

of Moral Judgment and Dishonesty

Max H. Bazerman and Francesca Gino p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p85

Varieties of Transition from Authoritarianism to Democracy

Jir Priba n p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p 105

Substance, Scale, and Salience: The Recent Historiographyof Human Rights

Samuel Moyn p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p 123

Immigration, Crime, and Victimization: Rhetoric and Reality

Marjorie S. Zatz and Hilary Smith p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p 141

Emotion and the Law

Susan A. Bandes and Jeremy A. Blumenthal p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p 161

Law, Environment, and the Nondismal Social Sciences

William Boyd, Douglas A. Kysar, and Jeffrey J. Rachlinski p p p p p p p p p p p p p p p p p p p p p p p p p p p p p 183

Bullying

Eve M. Brank, Lori A. Hoetger, and Katherine P. Hazen p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p 213

Pro Se Litigation

Stephan Landsman p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p 231

v

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Regulating Sex Work: Heterogeneity in Legal Strategies

Bill McCarthy, Cecilia Benoit, Mikael Jansson, and Kat Kolar p p p p p p p p p p p p p p p p p p p p p p p p p p 2

History Trials: Can Law Decide History?

Costas Douzinas p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p 2

Empirical Studies of Contract

Zev J. Eigen p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p 2

Sociolegal Studies on Mexico

Julio Ros-Figueroa p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p 3

Mind the Gap: The Place of Gap Studies in Sociolegal Scholarship

Jon B. Gould and Scott Barclay p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p 3

Laws Archive

Renisa Mawani p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p 3

International Human Rights Law and Social Movements: States

Resistance and Civil Societys Insistence

Kiyoteru Tsutsui, Claire Whitlinger, and Alwyn Limp p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p

3Law and Economics of Intellectual Property: In Search

of First Principles

Dan L. Burk p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p 3

Legal History of Money

Roy Kreitner p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p 4

The Force of Law and Lawyers: Pierre Bourdieu and the Reflexive

Sociology of Law

Yves Dezalay and Mikael Rask Madsen p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p 4

Rethinking Corruption in an Age of AmbiguityJanine R. Wedel p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p 4

Indexes

Cumulative Index of Contributing Authors, Volumes 18 p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p 4

Cumulative Index of Chapter Titles, Volumes 18 p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p 5

Errata

An online log of corrections to Annual Review of Law and Social Science articles may b

found at http://lawsocsci.annualreviews.org

Kreitner 2012

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