The Parable(s) of the Talents and the Law of Fiduciary Duties

Stephen Bainbridge has recently published an interesting legal and economic analysis of Jesus’ Parable of the Talents. You can download it here. I’ll assume my readers’ basic familiarity with the parable, which is found in two places (Mt. 25.15-30 and Lk. 19:11-27), albeit with some differences that Bainbridge notes.

Bainbridge is the William D. Warren Distinguished Professor of Law at UCLA and is well-known as a scholar of corporate law. His list of publications is enormous. He is a conservative (in the modern American sense) and has followed the path of a significant number of Evangelical academics to the Roman communion.

His piece is not theological as typically understood. Instead, Bainbridge sets out to answer some legal questions: “What was the relationship between the master and the servant? What were the servants’ duties? How do the likely answers to those questions map to modern relations, such as those of principal and agent?” These questions are not merely some jejune inquiries from someone with nothing better to do. As Bainbridge notes, the modern common law of fiduciary relations is grounded more directly than any other field of private law on distinctly moral and even religious notions of duty. To understand the modern notion of fiduciary (= faithful) relationships, Jesus’ parable(s) in light of the legal backdrop of first-century Judea might prove helpful.

Bainbridge begins by making a distinction between Anglo-Australian fiduciary law and that of the of America and Canada. The formal Anglo-Australian understanding of the duty of the fiduciary is essentially negative, i.e., she must not have an interest in conflict with the other party. The negative is certainly part of the American understanding which, however, goes further and requires the fiduciary to act affirmatively on behalf of the other party. Passive vs. passive+active, in my words.

This distinction between the negative and positive duties of a fiduciary might be operating in the background of Jesus’ parable, especially when we consider the differences between the Matthean and Lukan accounts. In Matthew, the wicked servant buried the talents entrusted to him but in Luke, Jesus has the servant store it away in a handkerchief, an insecure form of storing a large amount of money. In Matthew the wicked servant is cast into outer darkness but in Luke, the master takes the single mina from him and gives it to the better investor of the two other servants.

In both versions of the parable, however, it is clear the master expected the servants to do something, not merely safeguard what had been entrusted to them. Thus, the background legal rule of which his initial auditors would have been acquainted seems closer to the American understanding of affirmative fiduciary duties than to the negative duty of Anglo-Australian law.

Why might this be the case? Bainbridge speculates that an understanding of fiduciary duties in the negative sense was associated with an agrarian society in which investment for profit was largely unknown. By way of contrast, as the Jews in Palestine came under the domination of Rome and its large-scale commercial economy, the background understanding of fiduciary obligation took on an affirmative sense. This might be the case although I would think that the shift from an agrarian to a commercial economy would have begun under Greek domination.

Even so, what accounts for the greater condemnation of the first servant, who at least stored the talents safely? Why should he be cast into outer darkness when the servant in Luke, who hardly exercised the baseline duty of care, merely loses what had been entrusted to him? Bainbridge again draws on the changing economic order—agrarian to commercial—to argue that Jesus was making the point that the fundamental spiritual background rules (which, after all, are the point of the parable) also had to change with the times.

In my words, for God’s people in the about-to-be-inaugurated messianic age, the pattern of life would no longer be the pattern of the nation of Israel as a relatively static exemplar of God’s rule in the world. Instead, with the decoupling of God’s people from a single ethnic group and a single piece of land, and with the empowering of the Spirit, God’s people were to adopt an affirmative, outward-directed understanding of their place in the world. To be sure, Jesus wasn’t advocating a crass health-and-wealth gospel, such is to reduce the eschatological to the material, but he was (and is) urging on his followers a mission that will be characterized by world-wide growth and expansion with “profits” measured in terms of increasing numbers of followers from every tribe, tongue, and nation.