Abstract
Pat O’Malley, The Currency of Justice: Fines and Damages in Consumer Societies, Routledge-Cavendish: London, 2009; 187 pp.: ISBN 9781845681128
Pat O’Malley’s The Currency of Justice: Fines and Damages in Consumer Societies importantly attends to the paradoxical omission of money in both historical and contemporary criminological and socio-legal literatures, despite it being the most generally used sanction in both criminal and civil forms of law. Drawing from three general categories of monetary sanctions – the penal fine, the regulatory fine and monetary damages – the author traces, compares and contrasts the emergence, transformation and contemporary manifestations of money through the nineteenth to the twenty-first centuries. Capitalism and consumerism are the key political, economic and social frameworks through which this analysis seeks to pinpoint the governmental rationalities and practices responsible for both the construction of criminal and civil legal boundaries, as well as the dissolution of these same margins. O’Malley’s primary concern or, perhaps more accurately, curiosity, lies in questions around how money is imaged to work as a tool of justice and how money as a determinant of the ‘currency of justice’ reflects other trends that relate to neoliberal politics. To best appreciate the uniqueness of O’Malley’s intervention one must identify the types of criminological work he seeks to preclude, which, he claims, exist within a ‘vast jurisprudential and administrative literature’ that focuses on such questions as how to make people pay their fines, how to equate the level of fine to a certain offence, how to minimize the gap in fines between the rich and the poor, and how to determine the term of imprisonment required for fine defaults in order to make the fine more just, effective and affordable. Instead, O’Malley’s primary endeavour is to account for money sanctions in theoretical terms, asking how money makes it possible to govern in certain ways, how these ways of governing have changed over time, and how new configurations of money sanctions alter what we imagine to be ‘justice’.
For the purpose of this review, I will focus on the chapters dedicated to the penal and regulatory fine at the expense of monetary damages, since, as O’Malley himself notes, the damages section is meant to provide a comparative context to the more precisely developed analyses of the fine. The theoretical approach taken by O’Malley aligns with a ‘governmental meaning of money’ that derives from, and combines, Zelizer’s (1994) thesis that money has a social value greater than that simply of a medium of exchange, with Foucault’s (1984) ‘technologies of freedom’ that refer to the legal apparatuses, routines and institutions that coalesce to represent the techniques used by governments to create and intervene in the lives of the subjects they seek to govern. In the quest to elucidate potential ‘coteries of meaning’ that follow the money sanction, O’Malley begins with the emergence of the penal fine during the nineteenth century – initially conceived to be a more humane response to the otherwise longstanding ‘terror’ of corporal punishment and imprisonment (p. 28). However, reflecting what Rusche and Kirchheimer (1939) depict as the ‘epitome of rationalist capitalist penal law’, the penal fine inextricably connects to the moral character of the individual by virtue of its default mechanism. In the event that an individual is unable to pay, he or she is required to attend court, at which point some form of ‘human hurt’ results (i.e. pain, injury, anguish, trauma and shame) (p. 71). The tailoring of the penal fine to the needs of the individual reframes the money sanction away from what was hoped to be a more objective measure of crime and back towards the logics of deterrence and punishment. For example, the case of a fine default leads to imprisonment, where punishment occurs in the deprivation of liberty, movement, employment and association.
The regulatory fine, in contrast, emerged in the twentieth century as an assemblage of procedures, official discourses and tactics resulting from consumerism generally, and concerned to divest the offender of purchasing power specifically. What is at stake with the regulatory fine is a sanction other than imprisonment: the removal of a specific licence, the right to drive, to sell food, and so forth. The regulatory fine does not penetrate the life of the offender in the same way that the penal fine governs through moral character, but, rather, is more like a ‘premium’ in that it acts to restrict or prevent the continued licence to engage in certain practices. The desire is not so much to punish or correct, but to deal with the pragmatic concerns associated with regulating ‘spaces and speeds, flows and obstructions’ which adhere to a probabilistic logic that seeks to minimize what is risky and inconvenient (pp. 82–5). In short, the penal fine is associated with ‘criminal contexts’, whereas the regulatory fine reflects the technical nature of offences, acts of carelessness, and things that are not ‘wrong’ but merely unwarranted, inconvenient and can be deterred.
It is imperative to note that a great deal of The Currency of Justice summarizes the theoretical and philosophical tradition of monetary sanctions which O’Malley’s study is both inspired by and set against. Interpreting money sanctions through the lens of governmentality is perhaps the most novel and necessary aspect of the book, especially as this perspective draws from, extends and challenges key historical figures on the topic such as Jeremy Bentham (1962), Georg Simmel (1990), and Rusche and Kirchheimer (1939). One of the earliest thinkers of the money-sanction is Bentham (1962) in his book Principals of Penal Law, who coins the term ‘pecuniary forfeitures’ to combine what we now separate into ‘fines’ and ‘compensation’. The two types of money sanctions were similar for Bentham who held that both had the capacity to punish in that both require one party to pay a sum of money to another. The notion of pecuniary forfeiture thus merges compensation and punishment in a way that conveniently attends to Bentham’s felicity principle: the more money received by the ‘victim’, the greater the degree of happiness. On the flip side, happiness decreases for the party required to pay. A different perspective is put forth by Georg Simmel in his book The Philosophy of Money, where he argues that money allows for ‘unconditional interchangeability’ through its calculable potential, infinite division and mathematical convertibility (1990: 292) (p. 7). In this conception, money is ‘just money’ and produces a ‘thing-like’ vision of individuality that corresponds to the ‘erosion of the unique personality’ that is central to modern liberal versions of self. The consequence, Simmel argues, is the monetization of society where objects, including humans, become exchangeable for money. O’Malley also draws heavily from the Marxian-inspired Rusche and Kirchheimer (1939) who formulate the function of the fine as solely attributed to the effect of the relation of production. Punishment, in this case, reflects basic social relations that the twentieth century creates and harmonizes through employment, urbanization and living standards which combine to provide the conditions under which the fine can be more generally applied as a sanction.
In conclusion I return to one of O’Malley opening statements that there is a ‘stunningly sparse literature’ with respect to money sanction in criminology. After reading The Currency of Justice this accurately identified deficiency may be attributed to the, at times, seeming need for a prerequisite in financial and economic matters as they relate to law and society. This was particularly notable in the chapter on monetary damages, which included what felt like a quick introduction to complex details and proposed relations between contract law, tort law, and the various forms of insurance as they relate to compensatory functions of criminal and civil law. Although this chapter is certain to be an excellent reference for lawyers, to the ‘untrained eye’ of the criminologist, it introduces a mix of new and specialized information, the relevance of which to the larger argument is often uncertain – albeit, providing an excellent resource for further criminological research. O’Malley himself states early on that certain selections of information may lead readers to ‘gnash their teeth’ at oversimplifications and the arbitrary selection of certain trends, but to be aware that the larger purpose is not a definitive book about fines and damages, but one that highlights governmental thought and practice as it changes over time. With this exception, the same assessment does not apply to the rest of the book, which provides extraordinarily coherent outlines and defensible arguments about the nature and relationships of the monetary sanction, especially as it is articulated through the penal and regulatory fine. The book is novel, necessary and groundbreaking in the sense that it is the end-product of an ambitious project that is able to unravel and eloquently convey intricate and extensive subject matter at both the empirical and theoretical levels. O’Malley’s greatest talent is witnessed in the successful condensation, organisation and simplification of otherwise highly complex legal and financial detail which spans a period of approximately two centuries in a most articulate manner.
School of Social Sciences, University of Western Sydney