What Is “Value” in Crypto-Asset Law? A Critical Analysis of MiCA’s Use of the Concept
MiCA defines crypto-assets as “digital representations of value or rights” while never explaining what “value” actually is — revealing a silent shift from right-based to market- and technology-based understandings of what makes an asset legally relevant.
This article argues that MiCA quietly adopts a hybrid, under-theorised notion of value that mixes legal rights, market consensus and technological design. This hybrid is pragmatically useful, but it blurs the normative basis for regulation and destabilises the traditional link between legal value and enforceable claims.
Introduction
The concept of “value” occupies a central yet ambiguous place in the Markets in Crypto-Assets Regulation (MiCA). While the regulation avoids articulating a substantive theory of value, it repeatedly relies on the notion to define crypto-assets, establish regulatory categories, determine disclosure obligations and shape the contours of investor protection. MiCA’s foundational definition—“a digital representation of value or rights”—suggests that “value” is the primary characteristic that transforms a digital object into a regulated crypto-asset. Yet the regulation provides no explicit account of what this value consists of, how it is generated, or how it should be distinguished from economic behaviour, technological function or speculative dynamics.
This omission is not accidental. It reflects a structural difficulty: crypto-assets do not derive value in the same manner as traditional legal objects. Their value emerges from network effects, consensus mechanisms, tokenomics, governance incentives and algorithmic design rather than from legally enforceable claims or intrinsic economic properties. Crypto-assets may hold value without representing rights, and they may represent rights whose value depends entirely on technological conditions rather than on rights enforceable under law.
This article examines the conceptual instability of “value” within MiCA, arguing that the regulation adopts an implicit, hybrid and ultimately under-theorised conception of value that blends legal, economic and technological elements. This hybrid conception is both necessary—given the novelty of crypto-assets—and problematic, because it obscures the normative basis for regulatory intervention, creates uncertainty regarding the interpretation of rights, and complicates the boundary between speculation and legally recognised interest.
I. MiCA’s Functional Use of “Value”: A Category Without Theory
MiCA employs the term “value” primarily as a classificatory device. A crypto-asset is defined as a “digital representation of value or rights” transferable using DLT. This formulation appears neutral and technologically flexible, yet it conceals a conceptual void. The regulation does not explain what it means for something to “represent value,” nor does it specify whether value must be derived from rights, from market demand, from utility, or from technological scarcity.
In classical legal doctrine, value emerges from legally cognisable rights: claims, entitlements, property interests or contractual benefits. The law does not regulate things because they have market value; it regulates them because they embody enforceable rights or obligations. MiCA reverses this relationship. It presupposes that value can exist independently of enforceable rights, and that such value is sufficient to justify regulatory oversight.
This inversion reflects a broader shift. In the DLT environment, value is produced not by legal designation but by technological consensus. A token may acquire value even if it confers no rights and even if its issuer makes no promises. Its “value” in MiCA’s sense therefore derives from its tradability, scarcity, transferability and integration into a broader ecosystem of protocols. MiCA implicitly adopts a market-based conception of value, detached from legal enforceability.
This functional yet vague notion allows MiCA to capture a broad spectrum of tokens, but it prevents the regulation from articulating a coherent normative foundation for why such tokens warrant supervision.
II. The Economic Dimension of Value: Consensus, Scarcity and Network Effects
The value of many crypto-assets is generated through mechanisms external to law and internal to technology. Unlike traditional financial instruments, whose value is backed by underlying assets or contractual obligations, many tokens derive value from cryptographic scarcity, decentralised consensus and technological constraints embedded in smart contracts.
This economic-technological conception poses a fundamental challenge to law, because it implies that value can arise independently of institutional structures. The market validates the token’s worth, not because the token corresponds to a claim or right, but because the network accepts it as transferable, scarce and functional.
This raises questions about MiCA’s reliance on value as a criterion. If value emerges from collective belief rather than from legal structure, does the law recognise value as such, or is it merely reacting to market behaviour? More importantly, if market value is volatile, speculative and context-dependent, what does it mean for MiCA to regulate “representations of value”?
MiCA implicitly accepts that crypto-assets may hold value without legal substance. This acceptance marks a doctrinal shift: value becomes a sufficient trigger for regulation even in the absence of enforceable rights. Such an approach expands the reach of financial regulation but weakens the conceptual link between economic value and legal value.
III. The Legal Dimension of Value: Representation, Rights and Enforceability
Despite embracing a technologically grounded conception of value, MiCA cannot entirely escape the classical legal understanding of value as something tied to rights. Its definition of crypto-assets refers to “digital representations of value or rights,” implying that value can be independent of rights, but also that value may arise from them. This duality produces ambiguity.
When tokens represent rights—governance rights, access rights or claims—they engage legal structures of enforceability and contractual interpretation. But when tokens represent “value” without rights, MiCA must treat value as an autonomous legal concept. Yet the regulation provides no doctrinal explanation of how pure value (unattached to rights) can have legal relevance.
This ambiguity creates interpretive challenges. Consider a token that confers no legal entitlement but has market value due to speculative trading. Does the law protect this value? Does MiCA aim to regulate the token because it represents economic risk, because it resembles a financial instrument, or because the market treats it as valuable?
MiCA’s avoidance of a substantive theory of value reveals a regulatory pragmatism that comes at the cost of conceptual coherence. It accepts technologically created value as a basis for regulation without articulating the legal nature of that value.
IV. The Normative Consequences of an Undefined Concept of Value
MiCA’s undefined use of “value” has significant regulatory consequences. First, it expands the regulatory perimeter, allowing the EU to supervise assets that would not traditionally fall within financial regulation because they lack underlying rights. Second, it creates uncertainty for issuers and service providers, who must determine whether their tokens represent value in the regulatory sense. Third, it challenges traditional investor protection frameworks, which are built on the assumption that regulated assets correspond to recognisable rights.
Moreover, the lack of a defined concept of value intensifies boundary tensions between MiCA and MiFID. If value can exist without rights, then a broad class of economically significant but legally amorphous tokens will fall within MiCA rather than MiFID, potentially fragmenting the regulatory landscape and complicating supervisory coordination.
Finally, the concept of value in MiCA carries an implicit normative message: that digital markets may generate forms of value deserving protection even when they lack traditional legal substance. This message challenges the doctrinal hierarchy that places rights at the foundation of legal value, signalling a shift toward a broader, market-responsive conception.
Conclusion
MiCA’s concept of “value” reveals a profound ambiguity at the heart of crypto-asset regulation. The regulation adopts value as a defining characteristic of crypto-assets, yet it provides no substantive theory of what value is, how it is generated or how it relates to rights. This conceptual vagueness reflects the complexity of crypto-assets, whose value emerges from technological, economic and social dynamics rather than from legal rights.
While MiCA’s functional approach allows it to capture a wide spectrum of tokens, it comes at the cost of doctrinal clarity. Without a more precise articulation of the legal meaning of value, the regulation risks conflating economic significance with legal relevance, expanding supervisory activity without clear normative justification and creating interpretive tensions across regulatory boundaries.
The challenge for future regulatory developments will be to articulate a coherent theory of legal value in digital environments—one that recognises technological forms of value creation while maintaining the conceptual integrity of legal rights and obligations. Crypto-asset law cannot rely indefinitely on an undefined concept. As the digital economy matures, so too must the legal understanding of value.
Key takeaway. By making “value” the gateway to regulation without saying what value is, MiCA quietly moves EU financial law toward a world where market consensus and code-generated scarcity can be enough to trigger legal protection—even in the absence of traditional rights.