Friends-in-LawEthan Leib in Zocalo Public Square, April 04, 2011
by Ethan J. Leib
Our cultural zeitgeist clearly pays homage to friendship. Some of the most successful TV shows are about friendship: Seinfeld, Friends, and How I Met Your Mother are obvious ones, but House and Grey’s Anatomy are probably more about friendship than they are about hospitals. And one of last year’s most acclaimed movies, The Social Network, is dramatic and affecting because of its portrayal of a friendship betrayed; it isn’t the fake friendships on Facebook that make that movie poignant. Yet with all the attention our culture lavishes on friendships – and as important as they are to our overall well-being – we often leave friendship to fend for itself.
Our societal norms – as reflected in our laws and public policy – focus a great deal of attention on our familial relations and our workplace relations. But friends simply don’t register – these are human relations beyond the reach of the state.
As they should be, you might think. Nothing seems more off limits in a liberal society than telling people with whom they ought to spend their free time. And yet, it is hard not to notice that the liberal state routinely gives people many incentives to sort themselves into families, rather than into groups of friends. From our criminal law to our tax laws, we find strategies to protect and strengthen familial bonds.
There is nothing that should prevent our liberal state, then, from encouraging and nurturing friendships as a matter of public policy. But what would such a strategy look like?
For one, we could imagine employment laws that enabled us to take care of sick friends, not just family members. As it stands, the Family and Medical Leave Act requires employers to give us time off to take care of sick kin. Yet, study after study tell us that non-kin support is actually more curative and helps us live longer. The law could help the institution of friendship by allowing us to make claims against work and the state – giving us the time to perform acts of friendship.
We could also envision a system of taxes that didn’t only give us deductions for adding to the country’s population or buying homes we might not really be able to afford. It seems right that little tax incentives to give charity make the world a better place. But some nudges to incentivize us to drive our friends back from their next colonoscopy – and some small deductions for celebrating our friends’ rites of passage (how about making travel to weddings deductible, much like unreimbursed work travel is?) seem perfectly unobtrusive ways to reinforce the value of friendship in society.
Unfortunately, when the government fails to respect and think about friendship, we have a tendency to make bad decisions. When governments give people vouchers to move out of their neighborhoods to higher income communities – hoping that the change of scenery will give people a boost out of a life of reproduced poverty – we disrupt friendship networks and sources of support. It is thus no wonder that these programs actually can leave the poor families “moving up” feeling alienated. When we insist that hospitals consult with family before friends to help make end-of-life decisions for the incapacitated, we are likely following family wishes rather than respecting the autonomy of the individual. Friends often know us better – so shouldn’t the law, as a default, defer more to our “BFF” to make some of these calls on our behalf?
Sociologists have sounded alarms recently about the decline of friendship. Notwithstanding our elaborate technologies that enable us to be in touch more often and notwithstanding our promiscuous “friending” practices, it may be that we are often failing to develop intimate bonds outside the family. It is unrealistic to think that some quick tinkering with our public policies will restructure our patterns of affinity and lead to greater social cohesion. But it is dangerous for our laws only to focus on the private ordering within the family and the economy and to ignore our chosen bonds that provide us with so much support, fulfillment, and community.
Our new Congress won’t be able to agree on much; but promoting friendship seems to be a nonpartisan value. They may not be friends with each other but they all value friendship. In these times of economic stress, it is worth remembering that friends can’t always take care of themselves – and that friendship itself may not be able to take care of itself either.
Ethan J. Leib is a Professor of Law at UC-Hastings and a Visiting Professor of Law at Fordham Law School. He is the author of Friend v. Friend: The Transformation of Friendship – and What the Law Has To Do With It (Oxford 2011).