Do friends need the law? Examining why friendship matters and what governments can do for this important, though overlooked, relationship.

• Author: Gelzinis, Peter P.

Paulie: "You're Wrong! Friends owe!"

Rocky Balboa: "Friends don't owe! They do 'cause they wanna do!" (1)

1. INTRODUCTION

   Though an unlikely place for such a profound exchange on the nature of friendship, this brief exchange from the movie Rocky raises questions that philosophers have contemplated for centuries: What is the nature of friendship, what do our friends expect of us, and what should we expect of our friends? (2) Beginning in classical antiquity, philosophers have understood there is an intimate connection between friendship among citizens and the health of the political community. (3) in the Nicomachean Ethics, Aristotle observed, "Friendship also seems to be the bond that holds communities together, and lawgivers seem to attach more importance to it than to justice." (4) Classical thinkers viewed friendship in connection with justice and virtue, and thus citizens who interacted with one another in a spirit of civic friendship strengthened the moral health of the state. (5)

   In modern times, however, governments and philosophers have given little thought to the relationship between friendship and the state. (6) Laws give special preference to family members through tax incentives for marriage, special testimonial privileges for spouses, and inheritance rights, but the law overlooks the important role that friends have in our lives. (7) Websites like Facebook and Twitter allow us to stay in almost constant contact with the people in our lives, but although these new technologies allow us to experience our friends in new ways, some scholars, such as MIT professor Sherry Turkle, have wondered whether reliance on these technologies has reduced the quality of our interaction with friends. (8)

   Moreover, during this time of recession and high unemployment--when friendships should be more vital than ever--it appears that friendship has become a new source of stress and anxiety, as layoffs and reduced incomes cause feelings of embarrassment and inadequacy relative to friends who have weathered these difficult times unscathed. (9) We may not place the same emphasis on friendship, or think as critically about its significance as classical philosophers once did, but recently, both academic and legal communities have begun to reconsider the importance of friendship and what the state's role should be in promoting this relationship. (10) Ethan Leib, professor of law at the University of California Hastings College of Law and the most prolific writer in the area of law and friendship, has argued that courts should recognize legal obligations stemming from a friendship when adjudicating disputes. (11) If the indictment is that modern society has not done enough to promote the value of the friendship, this approach seems problematic because by the time two parties are locked in a dispute, the most important thing--the friendship itself--has been damaged beyond repair or lost completely. (12) Creating new legal duties between friends invites a twist on that opening exchange between Rocky and Paulie: Would we prefer that our friends act because the law commands them to do so, or is it better to allow friends to act selflessly, to "do 'cause they wanna do"? (13)

   This Note will analyze whether the law should do more for the institution of friendship. Throughout Part II of this Note, I will provide an overview of different works of classical philosophy to help familiarize the reader and to understand their relevance to a present-day analysis of friendship. (14) Part II.A will analyze the problem of defining what a friend is. (15) Part II.B will consider the personal nature of friendship and its significance for the greater community. (16) Part II.C will describe recent trends toward extending legal recognition to different kinds of relationships that the law had previously overlooked. (17) Part III.A will demonstrate the weaknesses of some of the existing proposals for attaching legal significance to friendship. (18) In the last section of this Note, I will narrow my focus to one political community--the Commonwealth of Massachusetts--and, by drawing upon themes contained in the landmark decision of Goodridge v. Department of Public Health (19) I will argue that the Commonwealth would be a logical place for moving forward with this friendship agenda by making limited public-policy changes that would create protections and incentives that would make it easier for friends to help one another during times of difficulty. (20)

2. HISTORY

   1. The Difficulty of Defining Friendship

      1. Plato's Lysis

         The Lysis is the only Socratic dialogue in which Plato directly addresses the nature of friendship. (21) The complexities of the dialogue are so great that some scholars of Greek philosophy have effectively thrown up their hands in frustration and concluded that Plato missed his mark. (22) In the dialogue, Socrates is drawn into a conversation by a group of young Athenians. (23) Socrates marvels at his interlocutors because, despite their young age, they appear to have acquired in each other "a true friend." (24) Socrates confesses that he has not been so lucky, and although he truly values friends above all other material possessions, he is so far from possessing a friend that he does not even know how two people go about becoming friends. (25) He then settles on his subject: he will question the boys about the nature of friendship with the hope of gaining a better understanding of this relationship. (26)

         As the dialogue proceeds, the difficulty of defining precisely what a friend is becomes apparent. (27) Socrates leads his participants through a series of twisting examinations that seem to move toward a resolution just before he points out a weakness in the argument that sends the inquiry back to where it started. (28) The Lysis has been described as one of Plato's aporetic dialogues that leaves the reader in a state of perplexity about the subject of the work. (29) By the dialogue's end, the nature of friendship remains elusive, with Socrates concluding that those who have observed the group's conversation might conclude that they are all friends, but he explains, "what a friend is we have not yet been able to find out." (30) These final lines suggest that while a precise definition of friendship might not be possible, it is a relationship that is best understood by people who have shared some experience together. (31) While Socrates appears to admit defeat, it is possible that the shared activity of trying to understand the relationship has, in fact, made those in the discussion friends. (32)

      2. Defining What a Friend Is in Modern Law

         Any attempt to give friendships a firmer legal footing runs into the problem of defining precisely who a friend is. (33) Legislators may be able to develop a general definition, and Florida and New York have crafted broad legal definitions of a friend for the purposes of making healthcare proxy decisions. (34) Ethan Leib has noted that our friends, unlike our immediate family members, do not lend themselves to an easy definition because we choose our friends for many different reasons. (35) Although every person feels they could say with precision who their closest friends are, the vague standards and individual preferences by which we all make these judgments present a significant challenge for any public-policy maker. (36)

         In his article, Friendship & the Law, Leib proposes a set of characteristics for determining the boundaries of what constitutes a friendship. (37) These traits are not intended to be exhaustive or mutually exclusive; rather, they would serve to aid judges and lawmakers in deciding who should be thought of as a friend. (38) According to Leib, friendship is a relationship in which people voluntarily seek to associate with one another; there is a great deal of trust and intimacy; friends also reciprocate care and emotional support; true friends treat one another with a sense of equality, and these relationships should be durable enough to withstand the passage of time. (39)

         One way around the challenge of defining friendship is to follow the path proposed by David Chambers, professor of law at the University of Michigan, who suggests that, rather than leaving the task of defining what is a friend to legislators, states could permit friends to register their friendships formally with a government office. (40) This status would only be available to unmarried persons who share a close relationship. (41) Becoming registered as "designated friends" would then allow those friends to share certain rights and responsibilities, such as making financial and medical decisions of behalf of one another if one becomes incapacitated, enabling them to take family leave on the same terms as married persons, and gaining the privilege to refrain from testifying against a friend in criminal or civil cases. (42) This proposal recognizes that individuals are best suited to say who their close friends are. (43)

   2. Friendship and Its Implications for the Larger Community

      1. Aristotle's Nicomachean Ethics

         In the Nicomachean Ethics, Aristotle, Plato's former pupil, considers the nature of friendship and how it relates to the larger community. For Aristotle, friendship is critical for every kind of citizen--old and young, rich and poor. (45) In the personal sphere, friends rely upon one another and are better disposed to recognize opportunities and seize them. (46) In the political sphere, friendship binds communities together, becoming even more important than justice because where friendship exists there is no need for justice. (47)

         Aristotle explains that friendship only emerges when the friendly feeling exhibited by one party is reciprocated in a mutual exchange of goodwill for the sake of the other person. (48) This mutual exchange of well-wishing is a condition for any friendship, but Aristotle recognizes that people become friends for different reasons. (49) In Aristotle's ethical theory...