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HASTINGS BUSINESS LAW JOURNAL 109
 
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MONEY AS SIMULACRUM:THE LEGAL NATURE ANDREALITY OF MONEY
 John J. Chung
*
 What is money? This question seems so elementary and self-evident.Money is, after all, the green pieces of paper issued by the government thatwe have in our pockets. But is that it? Even if one were to accept that as asatisfactory answer, what exactly are those pieces of paper? Are theythemselves the “money” or do they represent something else that is the“money?” And where do those pieces of paper come from, and why arethose pieces of paper considered money as opposed to anything else? Weall want money, and devote our lives to getting it. Yet, many spend littletime thinking about what it is. Given the role money plays in our lives, it issurprising that few questions are asked about it.
1
 In terms of legal significance, few things are as important. There wasa time when the leading law reviews published articles containingstatements such as: “Money is a fundamental concept of the law. There areperhaps few other juridical notions of greater importance.”
2
An article in
* Associate Professor, Roger Williams University School of Law; B.A. 1982, Washington University(St. Louis); J.D. 1985, Harvard Law School. I would like to thank Kevin Depew, the Executive Editorof Minyanville.com. It was his mention of Baudrillard in one of his columns that initiated my interestin this project.1. One of the leading treatises on the legal aspects of money begins with the followingobservation: “In the social sciences it is a familiar experience that a phenomenon commonly consideredas plain and distinct, on closer analysis turns out to be utterly problematical. This observation appliespreeminently to the notion of money.” A
RTHUR
N
USSBAUM
, M
ONEY IN THE
L
AW
1-2 (1950).2. Arthur Nussbaum,
 Basic Monetary Conceptions in Law
, 35 M
ICH
. L. R
EV
. 865, 866 (1937).The legal significance of money was further underscored by Professor Nussbaum’s observation that“[t]he word ‘money’ is perhaps more important and more often used in legal relations than any other. Itappears everywhere—in constitutions, codes, statutes, judgments, administrative regulations, contracts,wills and other legal documents.” N
USSBAUM
, M
ONEY IN THE
L
AW
 
supra
note 1, at 19.As for the categorization or placement of the subject of money within the law, one prominentcommentator places it within the area concerning the police power. “Because the functional meaningand workability of the money system both derive from and materially affect the general context of 
 
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110 HASTINGS BUSINESS LAW JOURNAL Vol. 5:1
the first volume of the
 Harvard Law Review
addressed the issue “whetherCongress has the power to make paper a good tender in payment of debts.”
3
 There was also a time when the Supreme Court’s rulings on theconstitutionality of government-issued money were considered to beamong the most important decisions of the Court.
4
Yet in today’s lawschool, in which classes do students learn about the legal nature of money?The likely reason such questions are not asked is because the answers seemso well-settled, and money carries with it the appearance (or illusion) of stability.
One of the penalties paid for the blessings of stability of thecurrency is that the law finds itself unprepared for unexpectedand revolutionary changes in the monetary system. Moneyconstitutes the most vital part of the substructure of the entirelegal system, but when its stability is taken for granted,monetary questions rarely come before the courts and noanalysis of underlying legal theories becomes necessary.
5
 
We all know what money is (or think we do), and there seems to belittle need to ask questions about it. To the extent that this is the popularview, this article submits that the meaning and nature of money is moreelusive than commonly thought. Moreover, the fundamental nature of money has materially changed every other generation or so since colonialtimes in America, and we may have reached a state of events where such achange may occur again. Money today is different from money as it wasenvisioned by the Framers of the Constitution. Money today has taken on anature that was predicted by several Supreme Court Justices in thenineteenth century in their warnings in the Legal Tender cases. Strangelyenough, the dissenters’ views of money foreshadowed, and were echoedby, the theories of the French post-modernist theorists, Jean Baudrillardand Jean-Joseph Goux, in the 1970s and 1980s. The strangest turn of events is that in this decade (as this article contends), money has taken onthe nature of its own hyper-reality as predicted by Baudrillard.The purpose of this paper is to explain and support these (perhapscryptic) statements. To that end, this paper explores the origins,development, and legal history of money. Its purpose is also to suggest oneversion of where the future may lead, if we do in fact live in a world wheremoney is its own hyper-reality.Part I begins by discussing the standard definition and understanding
social relations, legal control of money is established within that legitimate concern of law with thegood order of social relations, which has commonly been called the police power.” J
AMES
W
ILLARD
H
URST
, A L
EGAL
H
ISTORY OF
M
ONEY IN THE
U
NITED
S
TATES
, 1774-1970, 109 n.58 (1973).3. James Thayer,
 Legal Tender 
, 1 H
ARV
. L. R
EV
. 73 (1888).4. Kenneth W. Dam,
The Legal Tender Cases
, 1981 S
UP
. C
T
. R. 367 (1981).5. Phanor J. Eder,
 Legal Theories of Money
, 20 C
ORNELL
L.Q. 52 (1935).
 
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Winter 2009 MONEY AS SIMULACRUM 111
of money. Part II presents a brief and general history of the origin of money. It traces the development of money from a thing of independentvalue to facilitate exchange to a symbol of such things, and includes adiscussion of the gold standard. Part II closes with the final transformationof money from symbol to its own self-referential reality. Part III presents abrief history of money in the United States from the colonial era to thesituation today. It explains how major historical events (including theadoption of the U.S. Constitution, the Civil War, World War I, the GreatDepression, and World War II) affected and changed the fundamentalnature of money in America. Part IV examines money as it exists now. Indoing so, it explores the writings of Jean Baudrillard and Jean-Joseph Gouxfrom the 1970s and 1980s. Their work deserves attention because theyforesaw what money would become today. They predicted that thedevelopment of money into its own self-referential reality would createwhat Baudrillard called the “hyper-real.” Part V contends that hyper-reality is an accurate way to describe the nature of the monetary worldtoday, and touches upon certain facts of contemporary life that may beindications of the hyper-reality. Part VI then examines two historical eraswhen money lost all traditional meaning, and thereby created a new reality.The two eras are from Weimar Germany after World War I whencatastrophic hyperinflation took hold, and France in the early 1700s whenmoney took on its own reality with disastrous consequences. Part VIIoffers some thoughts on the future of money, and asks whether we may beat a turn in the cycle when the world will demand again some tangiblebacking for money. Part VIII concludes this paper.I. THE STANDARD DEFINITION OF MONEYMoney is a term that is used constantly. Perhaps because the term isso prevalent and central to human activity, few pause to ask what it reallyis. “[M]oney is whatever is generally accepted in exchange for goods andservices—accepted not as an object to be consumed but as an object thatrepresents a temporary abode of purchasing power to be used for buyingstill other goods and services.”
6
A leading treatise on the legal history of money broadly describes it as follows:
Money is an instrument for helping men create and managesome of their relationships. Money has no substantial meaningunless men will use it. That a design of money units is availablefor communication facilitates use. But a system of symbols, byitself arbitrary and abstract, offers only the minimum
6. M
ILTON
F
RIEDMAN
, M
ONEY
M
ISCHIEF
16 (1992). Professor Friedman was awarded the NobelPrize in Economics in 1976.
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