When I last visited National Law University-Jodhpur on a trip to India in 2010, I spoke with the students in the Advanced Comparative Constitutional Law seminar. I was particularly intrigued by the time the class ended by a profound difference in attitude. Americans enjoy a federal government that is reasonably fair-handed and amazingly uncorrupted when judged by world standards. Yet the attitude of Americans--at least most conservative ones--toward their federal government hovers between paranoia and deep suspicion.
Indians, by contrast, live under a federal regime marked by significant incompetence married with substantial corruption. The attitudes of my Indian students toward their government nonetheless were, if I read them correctly, characterized by deep appreciation bordering on genuine affection. They were not naive--no one in India is naive about the deep-seated problems associated with all levels of governing (public and private). Nonetheless they didn't seem to be burdened with the deep resentments that typify their better-governed American neighbors.
Page 2. Over a month ago a friend sent me a link to an article titled "Government? Agents!" The gist of the piece was to categorize government actors (elected, appointed, and simple workers) as agents and then to decry their frequent actions that are inconsistent with the desires of their principals (i.e., citizens). I think some term confusion was at work.
Agency is inherent in limited, embodied human nature. Unless we're Robinson Crusoe alone on a desert island, human beings must make use of others--including agents--to meet their needs. From the perspective of the law, agency normally arises from a voluntary transaction, a contract, by which the agent agrees to act on behalf of a principal and the principal agrees to let the agent bind her through the agent's actions. The agent's power gives him the ability to act to satisfy his own interests at the expense of his principal. Not surprisingly, when an agent acts on behalf of himself the principal can fire him and sue him for any losses sustained (and, indeed, for any gains the agent has received as a result of his self-regarding dealing).
We perceive an immediate problem when we take agency law and apply it to government actors: we can't fire them even when they engage in self-regarding dealing. What's the lesson? Seems to me it's either that we should seek to regain the power to fire our unfaithful agents or that government actors aren't agents. "Government? Agents!" takes the first position. But is that correct?
Economists speak of "agency cost" when considering a variety of human interactions beyond the scope of legal agency. There's always a cost when we use someone to carry out our desires. Evan apart from self-dealing, no one knows our desires as clearly as we ourselves. While we save time and effort by contracting for goods and services we frequently don't get exactly what we want ("information asymmetry" for those who want to know). That's an agency cost. But agency cost is not limited to or even directly connected to the legal relationship of agent and principal. It's a cost of being human (unless we're Robinson Crusoe).
There's no particular reason to analyze government actors through the lens of agency as understood in the law. There is, however, every reason to consider the agency cost of government actors and seek to reduce it. Reducing the agency cost of government actors could be achieved by providing them with better information of the desires of their citizens. Such would not, of course, reduce the number of government actors or permit us (which of us, I wonder?) to fire them. In fact, we might end up with even more government actors so they would know better what we want.
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