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Huck and Jim and Law

There is a story about the University of Chicago economist who complained in a seminar that he did not have any friends. “Buy one!" came a call from the back. A similar response will greet Ethan J. Leib’s new book, which argues that friendship should be promoted as a matter of public policy and subjected to legal regulation. If you think that friendship should be legally regulated, you just don’t understand friendship.

Leib anticipates this reaction and spends a great deal of time trying to refute it. Courts already do regulate friendships, he observes, and no one seems to have a problem with this. In many states, friends owe fiduciary duties to each other. This means that if you sell your old car to a friend, you have an obligation to mention the leaky carburetor and perhaps to charge a fair price—obligations that one does not owe to strangers. Friends who form business ventures and then fall out may discover that courts hold them to a higher standard of conduct. Since friends trust each other, they are vulnerable to being taken advantage of, and some courts take this factor into account when resolving cases. A stranger who breaches a contract is not as odious as a friend who betrays his trust: although their behavior may be identical, a court might come down harder on the friend than on the stranger.

Leib also points out that the most intimate relationships are shot through with legal regulation. We sometimes think that marriages are “outside” law. In fact, husbands and wives owe countless legal obligations to each other. They must provide care and support, and if the marriage falls apart, the state intervenes and arranges the most intimate details of their lives, such as how long each may spend with the children. In return, spouses get tax breaks (although sometimes they have a heavier tax burden) and they enjoy special legal privileges—to make life and death decisions when the other is in a coma, to refrain from testifying against each other at trial, to take leave from work when the other is sick. If husband and wife, why not friend and friend?

But why, exactly? We should require an affirmative reason to regulate. Leib says that friendship is important, that it is central to human identity, that—since friends enter economic relationships with each other—it may lubricate economic growth. But surely none of these facts provides a basis for the promotion of friendship by the state. As our University of Chicago economist would say, show me the negative externality—that is, the harm to others that results from the failure to regulate friendship. People are free to enter friendships in order to obtain the benefits of that relationship. Is there any reason to believe that people enter fewer than the socially optimal number of friendships? If a friendship may turn out to benefit others because of its third-party economic effects, it may also turn out to harm others. Cronyism is a significant problem in politics and business, and impartiality is an essential virtue in a bureaucratized society that rests on the rule of law.

There are certainly lonely people out there who would derive emotional and economic benefits from having more friends. But if others search them out and befriend them in order to obtain tax advantages or regulatory privileges, then is this the type of friendship that enhances well-being? At a minimum, we would need to take account of the possible alternative uses of the friend-prospectors’ time, lest we encourage them to neglect their families in the hunt for friendships. From the standpoint of public policy, it is impossible to say that there is “too much” or “too little” friendship.

Leib gestures at some questionable social science that suggests that friendship is on the wane. But if it is, this leaves open the question of why it was so robust in the old days, when there was also no legal promotion of friendship. And Leib fails to provide some practical, real-world examples of how the absence of legal friend-promotion results in identifiable social harms. True, friends sometimes breach contracts with friends, or fail to reciprocate favors. Not able to cite any convincing real-world cases of intra-friendship abuse, Leib assembles a synthetic example involving friends who take turns buying ballet tickets before one of them moves away and fails to reciprocate. But this is trifling stuff. The law regulates families because men beat their wives, or because divorced people lack the means to support themselves, or because parents neglect and abuse children.

Maybe this is why Leib does not press his reforms very hard. It quickly becomes clear that when Leib says friendship should be subject to “regulation,” he does not mean anything as radical as that term conjures up. He does not mean that people must sign forms and submit them to public officials before they become friends; or that a nanny state will reject friendships that do not meet approved bureaucratic criteria; or that you will be able to sue someone for refusing to be your friend or for terminating the friendship prematurely or even for betraying your friendship. He merely insists that friendship is a relevant factor for courts to consider when commercial transactions break down, and that friends should enjoy some privileges normally reserved for spouses.

Leib’s most radical proposals are that friends should be able to take medical leave to help sick friends, and that people who incur costs to care for others should get tax benefits. But he admits that the first proposal would be difficult to administer. And the second proposal is not really about promoting friendship but about subsidizing care, which could be undertaken by a stranger as well as by a friend. Indeed, charitable organizations composed of strangers who supply care to the vulnerable already get such tax benefits. Individuals do not receive tax benefits for helping friends for the same reason that they do not get tax benefits for giving $5 to a homeless person: it is too hard to monitor such behavior, so the law requires you to act through organizations. A lot of hedging and avoiding of details further undermines the impact of the proposals. So the “pro-friendship policy agenda" turns out to be a damp squib.

But if Leib’s book falls short as a reformist call to arms, it is more successful as a reflection on the complex relationship between law and friendship, and it will offer rewards to people interested in the sociology of friendship. A particularly fine chapter discusses the relationship between friendship and contract law, and the surprising degree of overlap between the two.

A person has diverse obligations to his friends: he must be willing to incur costs of various sorts—time, effort, money—to provide benefits such as favors, companionship, psychological counseling, confidentiality. It is easy to romanticize this relationship, as indeed Leib inevitably does. (As much as I value my friendships, Leib’s statement that our friends “are our guardians, our counselors, our therapists, our managers, our directors, our partners” fills me with a kind of existential horror.) But one must remember that they are subject to a strict duty of reciprocity. If the other person does not reciprocate, he is not really a friend. Thus, as Leib notes, a friendship resembles a long-term contract—a legal relationship where one party agrees to do X in return for the other party doing Y over a long period of time, subject to often ambiguous terms—and yet courts cheerfully enforce these types of legal contracts but do not enforce friendships other than in the marginal ways described earlier. Why not? It cannot be because of the element of affection. Contractual parties are often fond of each other, and yet the law is applied to their relationship in all its rigor; and, of course, the law is applied to marriages where the affective element is dominant.

The reason that courts do not regulate friendship is that it is too difficult for courts to identify the obligations that friends have to each other—they are too fluid, ambiguous, and many-faceted—and that the reciprocal nature of friendship ensures that most obligations are respected without resort to legal remedies. Most of the time, friends do little things for each other; there is just not enough at stake to warrant judicial intervention. And when friends do combine in commercial ventures, the courts expect them to rely on contracts, and contract law ensures that obligations are respected. A person who cannot persuade a friend to repay a loan can go to a court to enforce the debt—not because the debtor broke the law of friendship, but because he broke a contract.

Marriage, by contrast, is a kind of business relationship where parties pool their resources in order to minimize the cost of operating a household and producing children. Leib goes astray in likening friendships to marriage. We can say that a husband and wife do not like each other but choose to remain married for the sake of the children—just as business partners who dislike each other can continue to do business; but it makes no sense to say that friends or lovers do not like each other but remain together for some other purpose. Literature celebrates the subversive power of friendships (Huck and Jim) and romantic relationships (Romeo and Juliet); marriages, by contrast, are often just a set of social and legal duties—they are usually of no literary interest except as constraints against which romantic souls rebel or (bizarrely) toward which they aspire. For all the literary celebrations of friends and lovers, it is hard to think of literary celebrations of the married relationship, which is more frequently depicted as an object of mockery or scorn, or as an abstractly desirable endpoint that is best left to the reader’s imagination—or both, as in Jane Austen’s novels. Friendship and romance are supreme manifestations of personal autonomy; marriage is a social institution that keeps autonomy in check. That is where the law comes in—the checking serves purposes of social policy. The law treats friendships differently from marriages because they really are different.        

Eric A. Posner is a professor at the University of Chicago Law School.