Drive and Agency in the Age of Algorithm-Based Decision Making

The Freudian drive, which was defined as the “psychical representative of an endosomatic continuously flowing source of stimulation”, has been further explained by Giacomo B. Contri as “the law of motion of bodies [… ] to destination or satisfaction” whose source is the “Thinking of Nature”. The above-mentioned reference to a sort of “psychical agency” would have remained unclear for jurists if the Freudian concept of drive had not been further clarified by Giacomo B. Contri in terms that open the way to further scientific research work also in the field of legal studies. Legal research on this topic could start by comparing the meaning of the “law of motion of bodies […] to destination or satisfaction” (i.e., the “drive”) with the legal concept of “agency relationship”. In civil law, agency is the power that the interest holder (principal) confers to another (agent) in order to have its proper interest satisfied through the juridical activity of the latter. The first question here is whether it is possible to consider the juridical relationship between principal and agent as an example of “Subject-Other relationship” described by the psychoanalysis. Legal research concerning parallels between “drive” and “agency” might also utilize Giacomo Contri’s idea of “pact” (“alleanza”), which is as well one the articles of his “Encyclopedia of the Thinking of Nature”, in order to assess whether the “agency partnership” can actually be described as an example of “Subject-Other pact or alliance”. The starting point of the prospective investigation is the source of voluntary agency, in other words the power of attorney. When power of attorney is granted, the juridical activity of the agent provides benefit to the party who granted the power of attorney (the principal). Acts carried out by the agent in the name of the principal are chiefly to the principal’s benefit, whilst those reducing the principal’s wealth could be annulled if the agent has acted in conflict of interests with the principal. Even though the power of attorney confers on the agent the power to act in the name of the principal, it does not oblige the agent to act: the agency relationship may be described as a “can-do legal relationship” and it differs from the “shall do legal relationships” that arise from contracts. Once entitled by the principal, the agent can still decide whether to act or not, depending on his relationship with the principal. The legal relationship established by “authorization” or “public investiture” of the agent by the principal is not necessarily a contractual one. The granting of power of attorney is perfectly valid and effective even in the absence of an underlying contract of mandate or any other consideration. At the same time, it is necessary but not sufficient for the success of the agency relationship. The concept of “pact” or “alliance”, as it has been developed by psychoanalysis, describes a partnership yet not a contract. This concept might be fruitfully used to study the functioning of the agency partnership in cases where the agency device has been successfully employed. The concept of “pact” or “alliance” has been rarely investigated by private law legal scholars, who would then receive an important research input by the psychoanalysis.