The Law’s Role in Defining Friendship

 

“Never leave a friend behind. Friends are all we have to get us through this life — and they are the only things from this world that we could hope to see in the next.”

                                                  Dean Koontz (1945–) American author.

 

Although the law has traditionally placed friendship outside of its domain, the law matters to friendship. In the views of many, the benefits of friendship derive from its “out-law” status. Indeed, when I have mentioned to Desi friends and colleagues that I am writing about friendship, many have instantly recoiled, asking: “You’re not going to call for the regulation of friendship, are you?” Implicit in the question is the belief that friendship thrives outside of legal regulation.

 

Why is lack of regulation perceived to be good for friendship? On the most basic level, the state does not specify the terms of friendship, leaving it up to individuals to define the interaction. This creates multidimensional freedom. On one level, the state imposes no obligations on friends; therefore, any obligations arise from the parties themselves. On another level, the state does not privilege one definition of friendship over another. Many types of friendships can develop and coexist, and individual friendships can be fluid and shifting. This freedom to define friendship pursuant to one’s own terms means that definitions of friendship that attempt to be more specific than Karst’s are often unhelpful and unduly restrictive.61 This Article attempts to respect that freedom by focusing on individuals who self identify as Indian friends.

 

Although the freedom to define friendship in diverse ways is attractive and powerful, it is incorrect to view it as flowing from lack of state regulation. Instead, as discussed below, the placement of friendship outside of the legal family is a decision of the state. Some individuals may choose to embrace friendship in an attempt to escape the power of the state, but such escape can be only partial because the state has created the very divide sought to be exploited. Friendships are thus not intrinsically free relationships; rather, their freedom derives in part from the state, and that freedom is limited by various state decisions.

 

“Life is nothing without friendship.”

                                                                  Marcus Tullius Cicero (106-43), Roman orator

 

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