In the Parable of the Talents, neither the master nor any of the servants make any appeal to legal standards, but it seems improbable that there was no background set of rules against which the story played out. To the legal mind, the Parable thus raises some interesting 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? Curiously, however, there are almost no detailed analyses of these questions in Anglo-American legal scholarship.

1. THE LAW AND
ECONOMICS OF THE
PARABLE OF THE
TALENTS
Stephen M. Bainbridge
William D. Warren Distinguished Professor of Law
UCLA School of Law

2. The Parable
Matthew Luke
Servant A Given 5 talents
Earned 5 more
Given 1 gold
coin
Earned 10 more
Servant B Given 2 talents
Earned 2 more
Given 1 gold
coin
Earned 5 more
Servant C Given 1 talent
Buried
it/returned it
Thrown into
outer darkness
Given 1 gold
coin
Wrapped it up
and hid it
Condemned

3. Why Parables
 Jesus’ parables were effective as
teaching tools precisely because his
listeners “could readily identify with
the roles people filled, work that they
did, relations that were broken and
restored, losses they sustained and
happiness they experienced.”
 Simon J. Kistemaker, Jesus As Story Teller: Literary Perspectives
On the Parables, 16 Masters Seminary J. 49, 52 (2005).

4. Would Jesus (and hearers) have known relevant law?
 Jesus likely was not poor prior to start of
His ministry.
 The income of carpenters and others in the
construction trades in the relevant period
typically was well above the subsistence
level.
 It is therefore likely that, prior to the
beginning of his ministry, Jesus actively
participated in economic life.
 Likely, He would have had at least some
familiarity with the commercial norms and
legal standards of the day.

5. Servants or Slaves?
• Opinion divided, but likely
does not matter.
• They were fiduciaries:
• Given control over assets
• Trusted to preserve and
grow assets
• Master vulnerable to
misconduct
• A fiduciary “exercises
discretion with respect to a
critical resource belonging to
the beneficiary, whereas
most contracting parties
exercise discretion only with
respect to their own
performance under the
contract.”
• D. Gordon Smith, The Critical Resource
Theory of Fiduciary Duty, 55 Vand. L.
Rev. 1399, 1403 (2002).

6. Nature of fiduciary law in the Parable
Proscriptive
 Impose “standards of conduct that
require the fiduciary to avoid acting,
or to avoid situations where she might
be tempted to act, other than in the
interests of the beneficiary.”
 Paul B. Miller, Multiple Loyalties and the Conflicted Fiduciary, 40
Queen’s L.J. 301, 304 (2014).
 E.g., UK and Australia:
 An agent’s sole fiduciary duty
under their laws is that of
undivided loyalty.
 No duty to affirmatively benefit
principal.
Prescriptive
 Impose affirmative duties, instructing
the fiduciary what he must do.
 E.g., USA and Canada
 Proscriptive ban on conflicts of
interest, for example.
 Plus, an affirmative obligation on
the agent’s part to affirmatively act
in the best interests of the
principal.

7. • Buried
– Under Jewish law of period, regarded as best
security against theft
• In Parable, servant who buried talent thrown into
outer darkness.
• Wrapped
• In Parable, servant who wrapped and hid coin
merely has it taken away from him.
Master clearly expected servants to not just preserve his wealth, as those who did so were punished.
Instead, he expected them to affirmatively and productively invest the money for his benefit.
Prescriptive
What did Master Expect?
Matthew Luke
Inference re fiduciary duties in the Parable

8. 1st Century Palestine shifting from agrarian to commercial
economy
 Explains the reliance by the master on servants to conduct financial
affairs.
 “A non-commercial society, while it might have much use for servants,”
after all, “would have little need of agents, empowered to represent the
principal in business dealings with third persons."
 Israel Herbert Levinthal, The Jewish Law of Agency, 13 Jewish Q. Rev. 117 (1922).
 An emerging commercial society, however, would have needed servant-
agents who could conduct trade on the master’s behalf.
 Explains why the master expected his servants not only to preserve his
assets but also to use them to earn more money.
 But does not explain why the law would give that expectation effect.

9. Choosing between prescriptive and proscriptive
 Many—most?—principals wish agents to do more than simply
avoid conflicts; they may wish their agents to affirmatively act
in specific ways.
 A purely proscriptive approach suggests that an agent is
invariably disloyal whenever he is conflicted.
 Proscriptive systems rely on contract to specify affirmative
duties.
 As the Parable itself illustrates, however, it often will be impossible
to identify ex ante what the agent ought to do.

10. Theological Point?
Changing
Commerce
What About the
Rewards?
Exploring the differences in Matthean and Lukan sanctions
Matthean version situated immediately before Parable of the
Sheep and Goats
Punishment may have been intended to reinforce the fate
awaiting the goats
Old rule preferring burying made sense when preserving
value was critical (agrarian)
Punishing burial makes sense when increasing wealth is goal
(commercial society)
In an agrarian economy, risk taking would be disfavored
In commercial society, it would be favored
• Apparent rule promotes risk taking by rewarding those who
do so
10

11. The Severity of the Matthean Sanction
Given all we have said to this point, it
remains an open question whether
this parable, even in its basic
elements, goes back to Jesus.
If anything like the canonical version
does, we are left to wonder how
Jesus told a story so obviously given
from the vantage point of the elite
and so sharply out of touch with the
peasant perception of the world.
• Richard L. Rohrbaugh, A Peasant
Reading of the Parable of the
Talents/Pounds: A Text of Terror?,
23 Biblical Theology Bull. 32, 37
(1993).
 Breaches of fiduciary duty often met with harsh
sanctions:
 Especially where:
 The amount entrusted to the agent is high.
 1 talent = annual pay of ~27 Roman legionnaires
 The principal’s ability to supervise and control the
agent is low.
 He was out of country in 1st Century AD
 The discretion possessed by the agent is high.
 Essentially no instructions.
 On the other hand,
 Duty here is prescriptive.
 Minimal if any sanctions (see, e.g., business
judgment rule).
 Harsh sanctions usually reserved for self-dealing.