Journal of Social Ontology 2020; 6(2): 281–292

Article

Asya Passinsky*
Should Bitcoin Be Classified as Money?
https://doi.org/10.1515/jso-2020-0022
Published online March 24, 2021

Abstract: The advent of virtual currencies such as bitcoin raises a pressing question
for lawmakers, regulators, and judges: should bitcoin and other virtual currencies be
classified as money or currency for legal and regulatory purposes? I examine two
different approaches to answering this question—a descriptive approach and a
normative approach. The descriptive approach says that bitcoin and other virtual
currencies should be classified as money or currency just in case they really are money
or currency, whereas the normative approach says that this question of classification
should be answered on the basis of substantive normative considerations. I argue
against the descriptive approach and in favor of the normative approach.

Keywords: money, bitcoin, virtual currency, law, finance, social ontology

1 The Question
The launch of bitcoin in 2009 ushered in a new age of ‘virtual currencies’. Today,
there are thousands of such currencies in existence.1 These virtual currencies share
some features in common with standard currencies such as the US dollar, the euro,
and the yen. Most notably, many of them are used as a method of payment in some
environments. But virtual currencies also differ from standard currencies in certain
salient respects. As their name suggests, they are entirely virtual or digital. This
distinguishes them from standard currencies, which usually come in both physical

1 According to data from CoinMarketCap, there are more than 8000 cryptocurrencies in existence
as of February 2021. See https://coinmarketcap.com/all/views/all. Cryptocurrencies are digital
currencies that use cryptography to secure transactions and control the creation of new currency
units. Cryptocurrencies are sometimes taken to include digital bank currencies (e.g., Global China
Cash), which are not virtual currencies in the sense characterized below because they are issued by
central banks.

*Corresponding author: Asya Passinsky, University of North Carolina at Chapel Hill, Philosophy
Department, Chapel Hill, NC, USA, E-mail: [email protected]

Open Access. © 2021 Asya Passinsky, published by De Gruyter. This work is licensed under
the Creative Commons Attribution 4.0 International License.
282 A. Passinsky

and electronic form—for instance, US dollars come in the form of physical bank-
notes, as well as in electronic form. More importantly, virtual currencies are not
issued or controlled by a central bank or other public authority, unlike standard
currencies. Rather, they are typically issued and controlled by private individuals
or organizations. Furthermore, virtual currencies do not have the status of legal
tender in any jurisdiction.2 That is, there is no state or other territory in which these
currencies are “recognized by law as a means to settle a public or private debt or
meet a financial obligation, including tax payments, contracts, and legal fines or
damages” (Investopedia 2021, par. 1).
The advent of virtual currencies raises a pressing question for lawmakers,
regulators, and judges: should bitcoin and other virtual currencies be classified as
money or currency for legal and regulatory purposes? As Anita Ramasastry (2014)
notes, the answer to this question has significant practical implications. For there
are many existing laws and regulations concerning money or currency, such as
money laundering laws, banking laws, and tax regulations. If bitcoin and other
virtual currencies are classified as money or currency, then these existing laws and
regulations would apply to the users of these virtual currencies.
The answer to this question, though, is far from clear. As we noted, bitcoin and
other virtual currencies are not legal tender in any jurisdiction. But it is an open
question whether the notion of money or currency should be equated with the
notion of legal tender, for the purposes of law and regulation. Seeing as bitcoin and
other virtual currencies resemble standard currencies and forms of money in
certain central respects, it may be thought that they should be classified as money
or currency despite their not being legal tender. This, indeed, is the stance that
several judges have taken in recent court cases involving bitcoin.3
One case concerned Trendon Shavers, who was the founder and operator of
Bitcoin Savings and Trust (BTCST), an online investment scheme that solicited
investments and paid returns in bitcoin. In 2013, the United States Securities and
Exchange Commission accused Shavers of defrauding investors out of more than
4.5 million dollars worth of bitcoins. In response, Shavers argued that bitcoin is not
money and so the BTCST investments do not count as investments of money. Since
they are not investments of money, he argued, they are not ‘securities’ as defined
by Federal Securities Law, and so they are not regulated by this body of law. Judge
Amos L. Mazzant disagreed, ruling as follows:

2 The SOV, which is a digital decentralized currency based on blockchain technology, is legal
tender in the Republic of the Marshall Islands. However, the SOV is not a virtual currency in the
relevant sense because it is issued by the Ministry of Finance of the Republic of the Marshall
Islands. See https://sov.foundation.
3 The cases discussed below are from Ramasastry (2014).
 Should Bitcoin Be Classified as Money? 283

It is clear that Bitcoin can be used as money. It can be used to purchase goods or services, and
as Shavers stated, used to pay for individual living expenses. The only limitation of Bitcoin is
that it is limited to those places that accept it as currency. However, it can also be exchanged
for conventional currencies, such as the U.S. dollar, Euro, Yen, and Yuan. Therefore, Bitcoin
is a currency or form of money, and investors wishing to invest in BTCST provided an
investment of money (SEC v. Shavers 2013, p. 3).

Judge Katherine B. Forrest reached a similar verdict in another case, which

involved Ross William Ulbricht. Ulbricht created, owned, and operated the website
Silk Road, which facilitated the anonymous buying and selling of narcotics using a
bitcoin-based payment system. In response to a charge of money laundering,
Ulbricht argued that the transactions he engaged in were not ‘financial trans-
actions’ because they were conducted using bitcoin, and bitcoin is not money.
Judge Forrest disagreed, opining as follows: “Bitcoins carry value—that is their
purpose and function—and act as a medium of exchange. Bitcoins may be
exchanged for legal tender, be it U.S. dollars, Euros, or some other currency.
Accordingly, this argument fails” (United States v. Ulbricht 2014, p. 548).
On the other hand, the United States Internal Revenue Service announced in
2014 that it would treat virtual currencies as property rather than currency for
federal tax purposes, citing the fact that virtual currencies are not legal tender:

The Internal Revenue Service (IRS) is aware that ‘virtual currency’ may be used to pay for
goods or services, or held for investment. Virtual currency is a digital representation of value
that functions as a medium of exchange, a unit of account, and/or a store of value. In some
environments, it operates like ‘real’ currency—i.e., the coin and paper money of the United
States or of any other country that is designated as legal tender, circulates, and is customarily
used and accepted as a medium of exchange in the country of issuance—but it does not have
legal tender status in any jurisdiction (Internal Revenue Service 2014, sec. 2).

In a similar vein, a court in the Netherlands ruled in 2014 that bitcoin does not
meet the definition of ‘legal tender’, ‘common money’, or ‘electronic money’,
although it is a medium of exchange (Rizzo 2014; Zeldin 2014). The civil case
concerned an uncompleted bitcoin transaction in which the buyer paid for 2750
bitcoins but only received 990 bitcoins from the seller. The buyer sued the seller for
the remaining bitcoins, plus the lost profits he would have made during bitcoin’s
subsequent price surge. The court ruled that the seller must pay back the buyer the
original value of the 1760 bitcoins that were not delivered, plus interest and legal
costs. However, the court did not grant the buyer the 130,000 euros worth of
damages that he sought for lost profits. Had bitcoin been judged to be money, he
may have been entitled to these damages.
We see, then, that there are diverging opinions on the issue of how bitcoin and
other virtual currencies should be classified in the context of law and regulation.
284 A. Passinsky

How might this matter be adjudicated? It may be thought that for judges, this is a
question of legal interpretation. And it is commonly supposed that legal inter-
pretation is a matter of discovering what the authors of a given statute meant to say
with their words.4 Yet most of our banking laws, money laundering laws, and other
laws pertaining to money or currency were written prior to the advent of bitcoin
and other virtual currencies. So the authors of the relevant statutes likely had no
intention of either including virtual currencies in the purview of these laws, or of
excluding them. Authorial intent is therefore unlikely to settle the matter. In any
case, when it comes to lawmakers and regulators, past intentions will be of little
help in resolving the issue of how to classify bitcoin and other virtual currencies—
for lawmakers and regulators are not in the business of interpreting existing laws
and regulations, but of devising new laws and regulations. So the question for
them is: should bitcoin and other virtual currencies be classified as money or
currency for this or that purpose, going forward? Let us now examine two different
approaches to this vexing question.

2 The Descriptive Approach

The first approach says that bitcoin and other virtual currencies should be clas-
sified as money or currency for legal and regulatory purposes just in case they
really are money or currency. Recent writings by some economists suggest such a
‘descriptive approach’. For instance, David Yermack observes that the issue of
whether bitcoin should be considered a currency has “drawn increasing attention
from market regulators concerned about the tax, insurance, and other conse-
quences of how bitcoin is treated legally” (2015, p. 32). He then proceeds to
examine whether bitcoin is a ‘real’ currency. Similarly, Peter Hazlett and William
Luther note that the question of whether bitcoin is money is “not purely academic”,
as government agencies have grappled with this question and reached conflicting
conclusions (2020, p. 144). The implication is that their theoretical analysis of
bitcoin might help such government agencies to resolve this issue.
To illustrate the descriptive approach, let us consider in some detail the an-
alyses proposed by these respective authors. Both Yermack and Hazlett and Luther
subscribe to a functionalist conception of money.5 According to this conception,
something is money if and only if it fulfills certain functions which are

4 Cf. Dworkin (1982, p. 181). Dworkin himself argues that legal interpretation involves substantive
political theory.
5 This is the standard conception of money in economics. Some philosophers also endorse this
conception. See, e.g., Guala (2016, p. 175).
 Should Bitcoin Be Classified as Money? 285

characteristic of money. While these authors agree on this functionalist concep-

tion, they disagree over the details. Specifically, they disagree over which func-
tions are definitive of money. Hazlett and Luther privilege the function of being a
medium of exchange (2020, p. 145), whereas Yermack takes three functions to be
definitive of money, viz. being a medium of exchange, a unit of account, and a store
of value (2015, p. 32).
These authors go on to assess whether bitcoin is money given their respective
definitions of money—and they reach opposing conclusions.6 Yermack contends
that bitcoin functions only somewhat as a medium of exchange, since relatively
few merchants accept bitcoin and even these merchants engage in a small number
of bitcoin transactions (2015, p. 37). Furthermore, he argues, bitcoin functions
poorly as a unit of account because merchants oftentimes have to quote bitcoin
prices in four or more decimal places, which is hard for consumers to keep track of
(2015, pp. 38–39); and it functions poorly as a store of value due to its high volatility
(2015, pp. 40–41). Bitcoin is therefore not a bona fide currency, he concludes.
Hazlett and Luther, on the other hand, argue that bitcoin’s routine use as a medium
of exchange in a small corner of the Internet suffices for it to be money over this
domain (2020, p. 148).
Thus, these authors reach opposing conclusions regarding the monetary sta-
tus of bitcoin because they disagree over whether the function of being a medium
of exchange is the only definitive function of money and, moreover, they disagree
over whether bitcoin fulfills this function to a sufficiently high degree. It is by
adjudicating such theoretical questions that we can adjudicate the practical
question of whether bitcoin should be considered money or currency for legal and
regulatory purposes, according to the descriptive approach.
The main problem with this approach is that it elides a fundamental difference
between practical domains such as law and regulation, and theoretical domains
such as science. The aim of theoretical domains such as science is to advance our
knowledge and understanding of the world, and this aim guides definition and
classification in science. It thus makes sense for social scientists to try to define
money or currency in a way that reflects the true nature of money or currency. And
it makes sense for them to classify bitcoin as money or currency just in case it really
is money or currency so defined. In contrast, the aim of practical domains such as
law and regulation is to regulate and coordinate our social interactions, and it is
this aim that should guide definition and classification in law and regulation.
Sometimes, though, this aim may be promoted by adopting definitions or

6 More precisely, Yermack assesses whether bitcoin is a currency. However, his assessment is
based on a definition of money rather than currency, and so his conclusion may be construed as
concerning the monetary status of bitcoin.
286 A. Passinsky

classifications that diverge from what we take to be the correct definitions or

classifications. Thus, for example, the European Union classifies carrots as fruit in
the context of laws pertaining to fruit jams, jellies, and marmalades and chestnut
purée (Council of the European Union 2002, annex 3 a.1). Scientifically speaking, of
course, carrots are not fruit.7 But since the Portuguese make carrot marmalade, it
made sense for the European Union to classify carrots as fruit in this particular
regulatory context.8 Likewise, it might make sense for lawmakers and regulators to
classify bitcoin and other virtual currencies as money or currency even if they are
not really money or currency.
A further problem with the descriptive approach is that it presumes that there
is one correct account of what money or currency really is. This presumption,
however, may be challenged. We already saw that some economists take money to
be a commonly accepted medium of exchange, whereas others take it to be a
medium of exchange, unit of account, and store of value. But many theorists of the
social world do not subscribe to any version of the functionalist conception of
money. One of the most influential alternatives—at least among philosophers—is
the recognitional conception. According to this conception, something is money if
and only if it is recognized, accepted, or declared to be money (where ‘acceptance’
refers to a certain mental state as opposed to an act of accepting something as
payment).9
Proponents of the recognitional conception diverge on the details. One impor-
tant issue concerns the subjects of the relevant attitudes or speech acts. Some hold
that the subjects are the members of the relevant population (see, e.g., Thomasson
2003a); others hold that they are either practical authorities or individuals or entities
with social standing (see Passinsky 2020); still others hold an ecumenical view that
allows for different sorts of cases (see Hindriks 2006). Another issue concerns the
precise content of the relevant attitudes or speech acts—viz., what exactly are you
recognizing when you recognize that something is money? One view is that you are

7 According to botanists, a fruit is a mature ovary of a plant. Since a carrot is not a mature ovary of
a plant, it is not a fruit.
8 A related example, which is discussed by Mercier (2007, p. 177 n. 8) and Guala (2016, p. 205), is
the classification of tomatoes as vegetables for trade purposes in the United States. In 1893, the
United States Supreme Court ruled that tomatoes are vegetables for the purposes of the Tariff Act of
1883, even though botanically speaking tomatoes are fruit. The opinion of the Court cited the fact
that in ordinary parlance, tomatoes are taken to be vegetables (Nix v. Hedden 1893, p. 307).
Adhering to ordinary parlance in this context arguably promotes social coordination, and the
Court’s decision may have been guided (at least implicitly) by this aim.
9 Thomasson (2003a, 2003b), Hindriks (2006), and Passinsky (2020) subscribe to a conception
along these lines. Searle (1995, 2010) may also be construed as a proponent of this conception,
though some of his remarks point in a different direction (cf. Guala 2016, pp. 165–67).
 Should Bitcoin Be Classified as Money? 287

recognizing that the function of the thing is to be a medium of exchange (whether or

not it fulfills this function).10 Another view is that you are recognizing that the holder
of the thing has certain rights, for instance, the right to repay public or private debts
with it.11 These differences notwithstanding, proponents of the recognitional
conception are united in the belief that something’s being money is not so much a
matter of what we do with it—as the functionalist conception would have it—but
rather a matter of how we think or talk about it.
Neither conception is entirely adequate on its own. Consider banknotes in
Germany during the period of hyperinflation following the First World War. These
banknotes were eventually so devalued that people used them as wallpaper. At
that point, the banknotes no longer fulfilled the characteristic functions of money,
but they were still recognized as money by the German government.12 There is some
clear sense in which these banknotes were still money—or so it seems to me. The
functionalist conception, though, cannot account for this. Since the devalued
banknotes no longer fulfilled the characteristic functions of money, they were no
longer money according to this conception. Imagine now a society in which people
regularly accept seashells in exchange for other goods. These people use seashells
in the way that we use dollar bills. But suppose that unlike us, they do not have a
concept of money—so they do not conceive of the seashells as money. Again, it
seems to me that there is some clear sense in which these seashells are money in
this society. The recognitional conception, though, cannot account for this. Since
the seashells are not represented as money, they are not money according to this
conception.
This points to the possibility that ‘money’ is an ambiguous term. Perhaps to be
money in one sense is to be money according to the functionalist conception, and
to be money in another sense is to be money according to the recognitional
conception. Both conceptions would then be correct, albeit incomplete. Given this
ambiguity, we can easily account for both of our intuitive judgments—the deval-
ued German banknotes are money in the recognitional sense, whereas the sea-
shells in the imaginary society are money in the functionalist sense.
But if the term ‘money’ is ambiguous, then the descriptive approach may
not be able to satisfactorily answer the practical question of interest to us. For it
may turn out that bitcoin and other virtual currencies are money in one sense,

10 This view relies upon a distinction between the function(s) a thing has (its ‘intended function’
or ‘proper function’), and the function(s) it fulfills or performs. This is a familiar distinction in the
literature on artifacts. See, e.g., Hilpinen (1993, p. 161) and Thomasson (2009, sec. 4).
11 When combined with the view that the relevant subject is the law or the legal system, this view
yields a version of the recognitional conception which equates money with legal tender.
12 Cf. Almäng (2016, sec. 3) on the separation of ‘institutional statuses’ from ‘institutional func-
tions’. Cf. also Hindriks (2020, sec. 2) on the mismatch problem.
288 A. Passinsky

but are not money in another sense. For instance, if Hazlett and Luther are right,
then bitcoin is money in the functionalist sense. However, since government
agencies such as the IRS do not recognize bitcoin as currency, it may be argued
that bitcoin is not money in the recognitional sense. But then the question
would still remain: which is the pertinent sense for various legal and regulatory
purposes?
Supposing that the recognitional sense is pertinent for at least some legal and
regulatory purposes, the descriptive approach faces a further problem. According
to the recognitional conception, the attitudes or say-so of certain subjects makes it
so. And however we construe the relevant subjects, they will presumably include at
least some lawmakers, regulators, or judges. But then it does not make sense for
these lawmakers, regulators, or judges to decide whether to classify bitcoin as
money or currency solely on the basis of whether bitcoin is money according to the
recognitional conception. For their very decision partly determines whether bitcoin
is money according to this conception. It seems, then, that their decision must be
based at least in part on other considerations—especially if their say-so plays an
outsize role in making it so.13

3 The Normative Approach

This brings us to what I will call the ‘normative approach’. This approach starts
from a simple and plausible idea: social institutions have a point or purpose to
them, and this point or purpose is to secure or promote values (Hindriks and Guala
Forthcoming, sec. 4). Since the law is a social institution, it too has a purpose and
this purpose is to promote certain values. It is a matter of debate what these values
are. But they plausibly include values such as social coordination, dispute reso-
lution, justice, and fairness (cf. Dworkin 1982, p. 194). The normative approach,
then, says that bitcoin and other virtual currencies should be classified as money or
currency for various legal and regulatory purposes just in case doing so would
secure or promote values such as social coordination, dispute resolution, justice,
and fairness.14 This approach is normative insofar as it says that lawmakers,

13 Thanks to Dan López de Sa for helpful discussion of the ideas in this paragraph.
14 This normative approach is in the spirit of Haslanger’s (2000) ameliorative approach to gender
and race. According to Haslanger, our definitions of gender and race should be guided by
normative considerations. However, Haslanger is not explicitly concerned with how gender and
race should be defined in law, but rather with how they should be defined in social theory. My
normative approach is also in line with Guala’s suggestion that the codification of marriage in law
is a “normative juridical matter” (2016, p. 200).
 Should Bitcoin Be Classified as Money? 289

regulators, and perhaps even judges should make their classificatory decisions on
the basis of substantive normative considerations, rather than on the basis of
purely descriptive considerations.15
On this normative approach, there may be no uniform answer to the question
of how bitcoin and other virtual currencies should be classified for legal and
regulatory purposes. For it may very well turn out that the relevant values are best
promoted by classifying bitcoin and other virtual currencies as money or currency
in some contexts, but as something other than money or currency in other contexts.
For example, it may turn out that these values are best promoted by classifying
bitcoin as money in the context of money laundering statutes, but as property in
the context of tax regulation. Thus, the normative approach requires us to examine
particular bodies of statutes and regulations. In each case, we must determine
which classification best promotes the relevant values.
Implementing the normative approach is thus no easy task, and it is not
something that I shall attempt to do here. That being said, let me illustrate the
approach with two examples. The first concerns money laundering statutes.
Should bitcoin be classified as money in the context of these statutes? If bitcoin
is so classified, then existing money laundering statutes would apply to
transactions involving bitcoin. This would make it easier to prosecute bitcoin
users such as Ross Ulbricht, who (you may recall) owned and operated a
website which facilitated the buying and selling of narcotics using a bitcoin-
based payment system. This, in turn, would arguably promote justice and
fairness. For there appears to be no morally relevant difference between
Ulbricht’s actions and the actions of someone who, say, owned and operated a
website facilitating the buying and selling of narcotics using a US dollar-based
payment system. Given that this latter person could be prosecuted under
existing money laundering statutes, it would be unjust and unfair if Ulbricht
could not likewise be prosecuted. This favors classifying bitcoin as money in the
context of money laundering statutes.
My second example concerns tax regulations. Should bitcoin be classified as
money or currency in the context of these regulations? As we noted earlier, the IRS
currently treats bitcoin and other virtual currencies as property rather than cur-
rency for tax purposes. Some have complained that this makes tax compliance
much more difficult (see, e.g., Marotta 2018). If classifying bitcoin as currency for
tax purposes would make tax compliance easier, then doing so might better co-
ordinate the actions of taxpayers and the government, which would in turn pro-
mote the value of social coordination. This would be an argument in favor of

15 On certain views of legal interpretation, the normative approach may be applicable to judges.
For instance, it may be applicable to judges on Dworkin’s (1982) theory.
290 A. Passinsky

classifying bitcoin as currency for tax purposes. On the other hand, if tax
compliance becomes much easier than it is now, more businesses and consumers
may start using bitcoin. And the widespread use of bitcoin might ultimately un-
dermine the ability of central banks to achieve important economic goals, such as a
low unemployment rate, through regulation of the money supply. This, in turn,
might thwart the promotion of values such as economic efficiency and social
coordination. That would then be an argument in favor of continuing to classify
bitcoin and other virtual currencies as property rather than currency for tax
purposes.
As evidenced by this second example, the normative approach may not
always yield a decisive answer. In such cases, we will need to carefully weigh
the considerations for and against classifying bitcoin and other virtual cur-
rencies as money or currency for this or that purpose, in light of the values our
law is meant to promote. While I cannot hope to resolve such complex cases
here, I do hope to have articulated and illustrated a promising approach to
resolving them.

4 Conclusion
In this paper I have focused on the question of whether bitcoin and other virtual
currencies should be classified as money or currency for legal and regulatory
purposes. And I have argued that this question should be answered by means of a
normative approach as opposed to a descriptive approach. The broader upshot of
my discussion is that when it comes to questions of definition and classification in
law and regulation—for instance, how to define sex or gender for various purposes,
how to construe marriage, who to count as a person, and so on—the answers are
not to be found by simply uncovering the true nature of the relevant social phe-
nomenon. Rather, the answers are to be found by engaging in substantive
normative theorizing.

Acknowledgments: This paper was presented at the Money Workshop at the

University of Groningen, and at the 2019 Social Ontology Conference at Tampere
University. I would like to thank the organizers of these events and the participants
for their valuable feedback. I would also like to thank Jeremy Hadfield, Frank
Hindriks, Dan López de Sa, Joakim Sandberg, Jonathan Schaffer, and two
anonymous referees for very helpful comments.
 Should Bitcoin Be Classified as Money? 291

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