Bonds of Affection

Does law end where friendship begins? When Ethan J. Leib began to present his arguments that friendships might be recognized and even strengthened by changes in our legal regime, he met with intense disapproval. Throughout his new book, Friend v. Friend: The Transformation of Friendship—And What the Law Has to Do with It, he refers to encounters with people who found the very idea of greater legal acknowledgment of friendship perverse and threatening. Some of this negative reaction comes from problems in the current American understanding of what friendship is. But some of it comes from Leib’s tendency to put the legal cart before the cultural horse, a tendency that hobbles an otherwise provocative and timely book.

Leib says several times that he’s only trying to start a conversation; he doesn’t pretend to be presenting a fully worked-through, ten-point plan for enhancing the recognition of friendship in law. He offers four major claims. From most convincing to least, they are: Contemporary society badly needs stronger friendships, and greater acknowledgment of the role friends already play in caring for us and keeping us whole. The law already gets entangled with friendship in many often-overlooked circumstances, yet this entanglement varies wildly from jurisdiction to jurisdiction, thus losing the close fit with ordinary human experience that we need in order to trust our legal institutions. Both statutory and (especially) case law can be reworked in small, specific ways that would express common understandings of the duties close friends already have. And finally, law and legal categories can help us understand what friendship is.

The reasoning behind the first point should be obvious. As the extended family and now even the nuclear family have become increasingly fragile, many of us rely primarily on our friends for emotional and practical support. When I was sick with pneumonia and running a very high fever one summer, it was my best friend who took me to the hospital and made sure I got care. There are categories of especially vulnerable people who rely on close friends: widows, for example. Jonathan Shay, in Achilles in Vietnam: Combat Trauma and the Undoing of Character, writes of the crucial importance of philia for combat veterans. For many of us our friends are our first line of defense, not our last resort. Leib also cites some research suggesting that friendship is more protective of health and well-being than familial relationships. Moreover, even weaker friendships contribute to the general social trust on which our economy and civil institutions depend.

And yet friendship receives little explicit social support. It would be considered obvious to move, or take a lower-paying job, in order to be with your spouse; normal, if risky, to do the same for a boyfriend or girlfriend; and extreme to do the same for a best friend. Shay notes,

Veterans have lost their jobs because they left work to aid another veteran, in circumstances where the same absence would have been “understandable” and charged against sick or vacation time had the other been a spouse, parent, or child.

Leib questions this refusal to notice and support the care-taking done by friends. One of his policy suggestions is a “Friends Medical Leave Act” so that employees could take paid leave to care for the medical needs of a close friend. Or perhaps expenses incurred in caring for a severely ill or incapacitated friend could be tax-deductible. (Leib acknowledges that part of his enthusiasm for friendship lies precisely in its ability to de-center marriage and family. But he argues convincingly that one can accept his case for a fuller legal recognition of friendship without yoking it to his beyond-marriage ideology.)

As for his second point, Leib marshals reams of case law in which friendships are treated as imposing special responsibilities, because they generate special trust. For example, in many instances friends have been treated as fiduciaries (trusted authorities who owe those who trust them special duties of unselfish loyalty, care for the beneficiary, confidentiality, good faith, and “utmost candor and disclosure” well beyond what’s required in ordinary business transactions) and penalized for failing to do more for their friends than they would for pure strangers.

Most people probably agree that it is worse to betray a friend than to renege on a verbal promise to a stranger; in fact, we don’t typically sign contracts with our friends when we do business with them precisely because we rely on the cultural stigma against betrayal. To ask for a signature seems like an admission of mistrust: “You’re not much more than a stranger to me.” Leib argues that the law should reflect this intuition by penalizing bad friends more than people who merely did their best to wring money out of strangers. For example, while American law does not impose a “duty to rescue” strangers in need, Leib suggests that this duty might apply to friends; he cites a case in which a man drove around for hours with an injured friend who urgently needed medical care, and who ultimately died from his injuries. Friends who attempt to renege on “unwritten contracts” would find less sympathetic judges and juries, who would note their failures to deal openly and selflessly with their friends-turned-business-partners. Government agents who become “false friends” of criminals in order to receive the kinds of confidences usually granted only to close and trusted friends could find the evidence they obtained thrown out of court on entrapment grounds.

But I question whether Leib’s proposals for involving the law more heavily in broken and betrayed friendships would solve the problem of unpredictability. For example, Leib proposes making friend-as-fiduciary a more common model, thereby imposing greater obligations on friends who enter into business transactions (or, one could argue, recognizing moral obligations that already exist). He would waive some aspects of the fiduciary relationship; for example, fiduciaries are treated with great suspicion if they inherit in a beneficiary’s will, whereas we expect people to leave something to their closest friends. But he would submit friendships to requirements such as confidentiality. Leib suggests “that a friend’s (or ex-friend’s) deliberate disclosure of private information that causes real damage to a friend’s psyche, pocket, or reputation should be legally compensable.” This would severely narrow speech protections. Kiss-and-tell memoirs may be distasteful, but do we really want to fine people for being jerks?

Since friendship is a much more fluid category than, for example, marriage, Leib necessarily places a great deal of weight on the personal wisdom of judges and juries—their ability to assess the inner life of relationships whose nature even the two parties may not agree on. Although he says friendship should be “a thumb on the scales” in legal disputes, not something that imposes “a freestanding legal duty that has never before existed,” he is too inclined to see case law as a scalpel when it often fuctions more like a blunderbuss.

Friend v. Friend has one great strength and one great weakness. Its strength is its challenge to a conception of friendship that simultaneously romanticizes and trivializes it. Too many of us are horrified at the prospect of law recognizing friendship because we envision friendship as a realm of pure privacy and choice. Recognizing that this view of friendship is true in some ways but false in many others, Leib says:

Friendship is fragile because one may more or less freely disavow a friend; but the bonds are special, in part, precisely because we may walk away at any time. The freedom we all have to draw our own circle of affection does something to help explain why our friends are so precious: they are the chosen ones.

Friendship, we think, is precious because it is both private and unconstrained. But no one who loves is totally unconstrained, nor is freedom a more romantic state than constraint. St. Aelred compared the love of a true friend to the love of Christ—including, explicitly, Christ on the Cross.

And that brings us to the great weakness of Leib’s fascinating book. Where Aelred says the friend is another Christ, Leib wants to reinforce friendship by saying the friend is another fiduciary. He wishes to start with the law, and use that to shape culture, rather than starting with culture and allowing that to shape and strengthen the law. The reactionary aphorist Nicolás Gómez Dávila wrote that “human warmth in a society diminishes by the same measure that its legislation is perfected.” That may be an overstatement, but in understanding and reviving something as fragile and complicated as friendship, perfecting the law may not be the best place to start.

Published in the 2012-01-27 issue: 
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Eve Tushnet is a writer and speaker in Washington, DC. She the author of Gay and Catholic: Accepting My Sexuality, Finding Community, Living My Faith and Amends: A Novel.

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