(The Law of) Agency

In my course on Business Organizations, I teach the law of principals and agents. Under this body of law, the notion of “free agency” is nonsensical, since a person becomes an “agent” only by attaching himself to a principal, at which point the person is no longer free. By contrast, in religious studies, the term “free agency” (or just “agency”) connotes free will, which is a complex and deeply interesting topic, though not the topic of this post. In this post, I want to use the law of agency to propose a different way of thinking about ourselves as agents.

One of the foundation stones of the law of agency is consent. Indeed, it is often said that a principal-agent relationship must be consensual, even if it is not contractual. What does the agent consent to do? Two things: (1) act on behalf of the principal, and (2) act subject to the control of the principal. As you might imagine, once lawyers get ahold of these ideas, they become fairly complex, but just take the common understandings as a base point: to act “on behalf of” someone is to act primarily for the other’s benefit, and to subject oneself to another’s “control” implies a willingness to follow instructions.

In my view, when we commit to God through baptismal and other covenants, we are giving consent, just as an agent consents to a principal. We agree to work “on behalf of” God for the purpose of building up His Kingdom, and we agree to subject ourselves to His command. Having consented to be His agent, we need not deliberate about each commandment to determine whether we are willing to obey. This decision has already been made.

The formation of an agency relationship in law has two important consequences: (1) the agent becomes a fiduciary for the principal, meaning that the agent must “act solely for the benefit of the principal in all matters connected with his agency”: and (2) the principal becomes liable for authorized acts of the agent (Priesthood sealing power?). Perhaps I am a simpleton, but thinking about my relationship to God in these terms helps me to understand the deep level of commitment involved and inspires me to be more complete in my obedience and devotion.

6 comments for “(The Law of) Agency

  1. Incidentally, the Law of Agency is the only course in the history of Harvard Law School that went from being required to not being offered. It is now taught entirely as part of the law of business organizations.

  2. Another set of concepts from business law connotes moral concepts. Directors of corporations have several duties imposed by law. The two basic categories of duties are the duty of care and the duty of loyalty.

    The duty of care is often defined as the requirement that the director attend to the business of the corporation with the same care that she would apply to her own business decisions. If you squint a bit, this seems very much like the golden rule.

    The duty of loyalty is the requirement that the the director place no competing interests (including her own pocketbook) in front of those of the corporation. You have to squint even less to see the similarity to the first and great commandment here.

    And to think, my idealistic friends in law school thought that going into corporate law was soulless!

  3. Greg, I am writing a book on fiduciary duties, and one issue I would like to track down is the relationship of fiduciary law to principles in canon law or religious teachings more generally. I think you are absolutely right about the connection.

  4. I’m sure you’ve seen this in preparation for your book, but there is a good discussion along these lines in “After Enron, Remembering Loyalty Discourse in Corporate Law,” 28 Del. J. Corp. L. 27 (2003).

  5. Is there any necessary conceptual connection between free agency and free will? One could read free agency as a claim that one is one’s own principal. That would be to read it as those inside and outside the Church often read it. But such a reading seems to me to decide in favor of voluntarism without having thought about voluntarism.

    Gordon’s reading makes considerably more sense of the term “free agent.” However, relying as it seems to on modern concepts, I wonder if it is possible to “translate it back” into something we might find in an ancient Hebraic culture.

    The covenant between vassal and lord seems to fit well, and would still fit with Gordon’s explanation: the free vassal might be the one who serves his lord without being forced to do so. In other words, perhaps we can undertand free agency in terms of “free vassalage,” as Gordeon suggests.

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