Can a Genuine Sui Generis Regime for Crypto-Assets Be Built? A Panorama of Doctrinal Theories

The debate on a sui generis regime for crypto-assets divides between continuity, reform, strong originality and pragmatic stop-gap solutions. Mapping these positions reveals how far European law can stretch existing doctrines before it must concede that programmable, decentralised assets demand a new conceptual grammar.

Introduction

As the European Union inaugurates its first comprehensive regulatory framework for crypto-assets through MiCA, an unresolved question haunts both legislators and scholars: should crypto-assets be governed through a sui generis legal regime, or should they be absorbed into existing categories of financial and patrimonial law? The idea of a sui generis regime implies not merely regulatory autonomy, but conceptual originality. It presupposes that crypto-assets possess intrinsic characteristics so fundamentally distinct from traditional legal constructs that they cannot be subsumed under securities law, property law, contract law or payment law without conceptual distortion.

This question is far from settled. The doctrinal landscape is divided between scholars who view crypto-assets as technological variants of pre-existing legal categories and others who consider them as new juridical objects, requiring dedicated frameworks grounded in their programmability, decentralisation and architectural complexity. Between these two poles lies a multiplicity of hybrid positions that seek to reconcile innovation with doctrinal continuity.

This article examines the principal theories that shape the contemporary debate about the possibility of a sui generis legal regime for crypto-assets. It argues that the debate is ultimately a reflection of deeper tensions within legal theory: between functionalism and formalism, between technological neutrality and technological determinism, and between the need for conceptual stability and the reality of rapid technological transformation. By mapping these theoretical positions, the article seeks to clarify whether a genuinely autonomous legal regime is conceptually desirable, practically feasible and normatively coherent.

I. The Continuity Thesis: Crypto-Assets as Variants of Traditional Legal Objects

One of the most influential doctrinal positions rejects the idea of a sui generis regime altogether. Scholars aligned with this view argue that crypto-assets do not create new legal phenomena but merely reproduce, in digital form, structures familiar to private and financial law. According to this perspective, crypto-assets are nothing more than dematerialised property rights, contractual claims encoded in software or technologically updated versions of certificates of entitlement.

By this reasoning, tokens representing claims to goods or services should be analysed through contract law; tokens conferring governance rights should be approached through corporate law; stablecoins pegged to currencies should be treated as monetary instruments; and tokens representing profit participation should fall within securities law. Under this view, the diversity of crypto-assets does not justify the creation of a novel legal category, because each token’s function can be mapped onto already existing doctrinal structures.

This thesis relies on a deep commitment to legal continuity. It argues that technology cannot, by itself, create new juridical categories. What matters for classification is the legal and economic content of the rights embedded in the token, not its technical form. The continuity thesis therefore rejects technological determinism and defends the primacy of legal substance over digital architecture.

Yet this position encounters difficulties when confronted with tokens whose behaviour is shaped not by classical rights but by algorithmic execution, decentralised governance or networked economic incentives. For such tokens, the classical legal categories may prove insufficiently flexible. This tension marks the boundary where the argument for a sui generis regime begins to gain traction.

II. The Reformist Thesis: Crypto-Assets as “Augmented” Versions of Existing Categories

A second doctrinal current takes an intermediate stance. It acknowledges that crypto-assets share similarities with traditional instruments but insists that their programmability, divisibility, automated execution and decentralised issuance modify the underlying legal relationships in ways that require adjustments to existing categories.

Under this view, tokenisation introduces additional legal layers that neither financial law nor patrimonial law is prepared to absorb without modification. The token is not merely a representation of a right; it is a programmable and dynamic container that can embed conditionality, time-dependent behaviour, automated enforcement and cross-protocol interoperability. This complexity alters the conceptual nature of the legal relationship itself, calling for a hybrid legal architecture.

Reformist scholars therefore argue for a revised version of traditional categories. Securities law should integrate rules on smart-contract execution; property law should adapt to accommodate cryptographic control; contract law must account for algorithmic self-execution; and corporate law must incorporate decentralised governance mechanisms.

This perspective suggests that a sui generis regime is neither necessary nor desirable. Instead, existing legal regimes should evolve to incorporate the operational realities of crypto-assets. The law should remain function-based but technologically informed. The goal is not to create new legal categories but to modernise old ones.

III. The Strong Sui Generis Thesis: Crypto-Assets as Irreducibly Novel Legal Objects

Opposed to the continuity and reformist theses stands a stronger claim: that crypto-assets constitute unprecedented juridical objects whose defining features—distributed consensus, immutability, non-sovereign issuance, cryptographic control and algorithmic governance—cannot be meaningfully captured through existing legal categories.

According to this view, crypto-assets do not merely represent rights: they perform them. The execution of legal obligations is not mediated by institutions but by code. Authority is not centralised but distributed. Ownership is not defined by legal title but by private key control. Governance occurs through decentralised voting mechanisms rather than traditional corporate structures.

For proponents of the strong sui generis thesis, these features are not superficial. They transform the legal nature of assets and redefine the relationship between subjects, rights and enforcement. The result is the emergence of a new digital ontology in which legal relations are reconfigured through technological primitives. In such a world, financial law, corporate law and civil law must recognise crypto-assets as a new legal genus, distinct from traditional patrimonial categories.

This view finds support in the rapid expansion of decentralised finance (DeFi), which operates without intermediaries and relies on algorithmic protocols that cannot be analogised to existing legal actors. It also draws strength from governance tokens that confer control not through corporate mechanisms but through distributed voting. Such phenomena challenge the foundational assumptions of classical doctrines, suggesting that a novel category might indeed be required.

IV. The Pragmatist Thesis: The Sui Generis Regime as a Regulatory Convenience

A further theoretical position adopts a pragmatic approach. It argues that the sui generis category of crypto-assets does not emerge from doctrinal necessity but from regulatory convenience. Legislators needed to establish a broad category to prevent legal gaps and to bring order to a rapidly evolving market. The sui generis concept therefore functions as an organisational tool rather than a conceptual innovation.

From this perspective, residuality is deliberate: the category is meant to serve as a flexible instrument that can capture heterogeneous phenomena until the law matures. Over time, the category may fragment into more specialised sub-regimes, or may dissolve entirely as classical categories adapt.

This thesis treats the sui generis concept as provisional. It argues that its purpose is not to instantiate a new legal ontology but to buy time for legislators, supervisors and courts while technological and market dynamics stabilise. MiCA thus becomes a holding place within the legal order—a regulatory warehouse for digital innovations not yet fully understood.

V. A Fragmented Future: The Likely Evolution of the Sui Generis Crypto-Asset Regime

The doctrinal landscape suggests that the crypto-asset category is unlikely to remain stable. Over time, several trajectories are possible. The first is the gradual absorption of certain crypto-asset types into revised categories under MiFID, e-money law or payments regulation. The second is the proliferation of specialised regimes for categories such as NFTs, governance tokens or DeFi protocol tokens. The third is the consolidation of a genuinely sui generis digital asset law that recognises blockchain-based rights as a new class of legal objects.

Which trajectory prevails will depend on the evolution of technology, market behaviour and regulatory priorities. If tokenisation becomes pervasive across financial instruments, the boundary between MiCA and MiFID may erode, pushing toward doctrinal unification. If decentralised governance and smart-contract-based execution continue to expand, the strong sui generis thesis may gain normative traction.

What is clear, however, is that the current residual category cannot indefinitely serve as the conceptual backbone of digital asset law. It is a transitional construct, shaped by uncertainty and defined by exclusion, awaiting a more mature theoretical settlement.

Conclusion

The crypto-asset as defined in MiCA is the product of a deliberate legislative decision to create a residual, technologically bounded legal category. The doctrinal debate surrounding the possibility of a sui generis regime reflects deeper tensions in legal theory about classification, technological change and the boundaries of existing doctrines.

While some scholars argue that crypto-assets fit neatly within established legal categories, others believe that their programmability, decentralisation and algorithmic governance require the construction of a novel legal genus. Between these extremes lies the pragmatic view that a residual regulatory category is necessary at this stage of market evolution.

Whether a true sui generis regime will emerge remains uncertain. The future of digital asset law depends on how technology evolves, how markets adopt and modify token structures, and how the EU interprets and revises its regulatory architecture. For now, the crypto-asset category stands as a provisional, heterogeneous and conceptually fragile container—a reflection of law’s attempt to govern a technological frontier it has not yet fully conceptualised.

Key takeaway. The idea of a sui generis crypto-asset regime is less a settled destination than an open doctrinal horizon: continuity, reform, strong originality and pragmatic residuality coexist, and the eventual shape of European digital asset law will depend on which of these narratives slowly prevails.