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When COVID-19 forced the state to limit our social bubbles, married couples and families had long-guaranteed rights to rely on. Friends did not, and they still find themselves in a legal and moral grey area

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People share a toast on a terrace of a bar in Paris in October, 2020, on the last evening before France began another pandemic lockdown that would close restaurants.Lewis Joly/The Associated Press

Linda Besner is a writer living in Toronto. Her most recent book is Feel Happier in Nine Seconds.

Joost Janmaat and Christiaan Fruneaux are best friends. This is not a matter of opinion, but one of public record: In 2015, they went before an Amsterdam notary and solemnized their relationship with the Netherlands’ first vriendschapscontract – a friendship contract. Mr. Janmaat and Mr. Fruneaux are the founders of Partizan Publik, a Dutch “think and action tank” dedicated to reimagining the conditions of modern urban life. Part public art project, part social activism, their legal declaration was designed to spark a wider conversation about the vital role of friendship in the lives of citizens, and its troubling lack of official recognition.

Since the outbreak of the pandemic, the state has taken an unprecedented (in most countries) interest in the constitution of our social circles. Government messaging in Canada has been inconsistent for a host of reasons: the evolving science, the decentralized health care system, the reluctance to curtail economic activity. Yet there has also been a confusing emphasis on the word “family.” “Premier Doug Ford Says Ontarians Can See Family Members Now,” ran a headline in The Globe and Mail in May. “If we want to see more people, do it outside, and in smaller gatherings indoors for the immediate family,” Cécile Tremblay, an infectious diseases specialist, told CBC in November.

This, of course, is not how viral transmission works – people from outside your household are potential sources of infection whether you are related to them or not. Yet the imprecision of this phrasing has not only contributed to faulty understanding of what constitutes an epidemiological unit; it has powerfully suggested that – in the eyes of the state – our friendships are less important.

Friendship would seem to be a non-controversial social good. And strengthening or promoting friendship would seem to align with the interests of government: Experts agree that strong social bonds make populations happier, as well as physically and psychologically healthier.

Yet many political philosophers have argued that the strong loyalty requirements of friendship make it fundamentally threatening to state power. E.M. Forster famously wrote, “If I had to choose between betraying my country and betraying my friend, I hope I should have the guts to betray my country.”

Groups of friends form their own governance and belief structures in ways that may conflict with state objectives. Sometimes, the strengthening of these intellectual undercurrents bends society toward justice, as, for example, with book clubs whose members seek out works by Indigenous authors that disrupt national mythologies. In other contexts, small groups of friends may entrench injustice by consolidating control of important sectors in old boys’ networks and – crucially in today’s climate – developing counternarratives and spreading disinformation.

Part of the psychic weight of the current moment is the sense that loyalty and betrayal are attached to the simplest actions: getting a takeout coffee when you don’t need to is an ideological statement. The six feet of distance between me and the people I love looks empty, but in fact it is a vortex of conflicting loyalties and duties.

Sometimes the primary requirement of friendship is showing up, the very thing I’m not currently allowed to do. Friendship and the law have been thrust into a negotiation that brings their latent tensions to the fore.

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Plato's Symposium – as depicted in Anselm Feuerbach's 1869 painting – is one of Western literature's oldest tales of friends having an evening of wine and conversation. For ancient Greek philosophers, the meaning of friendship – what they called philia, or brotherly love – was a perennial question with both social and political implications.Public Domain

“Without friends no one would choose to live, though he had all other goods,” writes Aristotle in the Nichomachean Ethics. This was not simply a statement about private life and personal affections; for classical philosophers, friendship was a political enterprise. The state was essentially a society of friends, and friendly feeling was what made citizens treat each other well. “When men are friends they have no need of justice,” Aristotle declared. This notion of friendship as the principle underlying the unity of the state – and the rubric for foreign policy decisions, as encapsulated in the expression “the enemy of my enemy is my friend” held sway into the early modern period.

Scholars generally agree that it was Thomas Hobbes, in the mid-17th century, who demoted friendship from its long-held status as the paramount civic virtue. It was not, he wrote in Leviathan, some natural power of friendship that enabled humans to come together to form a state – instead, a strong state creates the conditions that allow citizens to form friendships.

As political theorist Gabriella Slomp argues, the Hobbesian ideal of obedience to an absolute authority in exchange for peace and security “provided a new foundation for modern friendship.” Two or more individuals becoming friends, according to Hobbes, is a process that relies on a shared language and value system, as well as mutual trust – all of which were products of a stable governance structure. And if earlier theorists had praised friendship as the glue holding communities together, Hobbes emphasized its potential to harm the state. Cicero had announced that a true friendship could only take root between virtuous men, but Hobbes countered, “And depraved though they are, do not conspirators aid and comfort one another, and share common desires?”

The antipathy between friendship and the state came to seem natural. “It is therefore easy to see why Authority frowns on Friendship. Every real Friendship is a sort of secession, even a rebellion,” wrote C.S. Lewis in 1960. The whole point of friendship was the creation of a miniature society – a secret space where members drew apart from other people. What friends came up with once they had removed themselves from the common sphere could be just about anything. Wrote Lewis: “Mathematics effectively began when a few Greek friends got together to talk about numbers and lines and angles … What we now call ‘the Romantic Movement’ once was Mr. Wordsworth and Mr. Coleridge talking incessantly (at least Mr. Coleridge was) about a secret vision of their own.” These pursuits may be beneficial for the rest of us (or at least harmless), but groups of like-minded individuals could just as easily urge each other on to cannibalism, or white supremacy, or fomenting violent revolutions. And, as we’ve seen in recent weeks, not everyone draws the line between legitimate dissent and treason in the same place.

The euphoria of being different from the majority but the same as a small hand-selected group is an experience utterly unlike the forced intimacy of blood ties. And this vertiginous freedom from the constraints of broader society shapes us as perhaps nothing else can. As Lewis wrote: “Alone among unsympathetic companions, I hold certain views and standards timidly, half ashamed to avow them and half doubtful if they can after all be right. Put me back among my Friends and in half an hour – in ten minutes – these same views and standards become once more indisputable.”

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Rainbow flags surround the Parliament buildings in the summer of 2005, when lawmakers were debating the bill that would legalize same-sex marriage in Canada.Jim Young/Reuters

The fact that the Canadian state has no formal mechanism for recognizing friendship by no means suggests that our personal relationships are beyond regulation. It’s just that the basis for recognizing a meaningful bond between people, in Canada as elsewhere, is overwhelmingly focused on conjugality – in other words, sex.

The national legalization of gay marriage in 2005 was a life-changing victory for many advocates. But for some legal scholars, it also marked a missed opportunity to continue a related conversation. A few years before the enactment of the landmark Civil Marriage Act, the Law Commission of Canada issued a report that, while recommending the legalization of gay marriage, also recommended a re-envisioning of the way government looked at the lives of its citizens. “Close personal adult relationships,” as the report termed them, came in shapes, colours and sizes that the conjugal framework was inadequate to capture. Instead of the state attempting to determine which kinds of relationships should be subject to which kinds of regulation, why not look more closely at how the state could support its citizens in forming and maintaining a wider range of relationships based on equality and autonomy?

Friendship is an exclusive relationship – by definition, we have greater intimacy with our friends than with acquaintances, strangers, or people we actively dislike. But it’s also a social good to which people have unequal access.

Studies suggest that living on a low income can make it harder to form or maintain friendships. A 2016 study by Emily C. Bianchi and Kathleen Vos in the journal Social Psychological and Personality Science found that while people in higher income brackets spent less time with their families or neighbours compared with people in low income brackets, they spent more time with their friends – as much as 22 minutes more a day.

For people with disabilities, physical and social barriers can result in greater isolation: In a 2016 survey of adults living with a wide range of disabilities published in the Canadian Journal of Disability Studies, respondents reported significantly fewer friendships than do the general population. While disability scholars and activists often stress the need to move beyond a framework in which caring for others is conceptualized solely as a burden, inadequate state support for meeting basic needs can place undue pressure on friends to be everything to one another.

“Friends jump in regularly and help me get more frequent baths (bathe me). I’m not satisfied with it. I’d rather have it as part of my paid routine,” reads an anonymous testimonial in the Law Commission report’s section on disability rights and personal relationships. “Some friends I have lost – they don’t feel it’s their role and they are right.”

Immigration law is another area in which the importance of friendship is categorically dismissed. Canadian citizens and permanent residents can apply to sponsor “family class” connections, a designation that includes spouses as well as parents, grandparents and dependent children. But best friends of 20 years – people whose emotional lives are intertwined in at least as meaningful a way as conjugal partners – have no way to make their bond visible. Similarly, in most Canadian jurisdictions, only family members can sue for emotional damages caused by wrongful death. A person who loses their spouse is eligible to claim compensation for the suffering they endure; a person who loses a lifelong friend will generally have no recourse.

In her book The Neutered Mother, the Sexual Family, and Other Twentieth Century Tragedies, theorist Martha Albertson Fineman called for a radical expansion of our legal and social framework for intimacy and care. This work was published in the 1990s, and while progress has been made since this time in acknowledging the depth and variety of relationships not based on marriage or sex, our institutions often persist in assuming a hierarchy that places friendship in a marginal role.

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A hospitalized child meets his best friend through a plastic screen at the San Raffaele hospital in Rome. Children in the hospital wished to see and hug friends and relatives for the Christmas holidays.Yara Nardi/Reuters

Preventing the spread of conspiracy theories among networks of anti-maskers, members of the anti-vaccination movement and QAnon devotees may not be within the scope of what greater governmental recognition of friendship could do. However, more regulation and greater transparency in friendships among the powerful could potentially prevent some actual conspiracies.

The cliqueish nature of power is hardly news. One of the reasons Hobbes favoured monarchy over democracy was that a parliament means too many friends expecting favours – one king only has so many friends. But regulations and safeguards that constrain the behaviour of bank officials, for example, tend to target family relationships rather than friendships as worthy of scrutiny. The Bank Act stipulates that special procedures must be followed before a bank can engage in transactions with the relatives of its senior officers or directors. But the informal nature of friendship means these types of preferential relationships are not subjected to the same scrutiny. Some financial institutions do attempt to include friendships among those relationships that should trigger extra precautions, but the specifics still tend to focus on family. The conflict of interest policy of the Office of the Superintendent of Financial Institutions states that employees cannot offer special treatment to family or friends, but the list employees are required to draw up of potential conflicts of interest relates only to assets or interests owned by immediate family.

In other realms, too, such as selections by hiring committees or prize juries, a greater scrutiny of friendship could be of benefit. Promoting one’s friends can seem natural – if people working in the same field become friends through mutual admiration, it is not surprising that they will tend to reward each other with jobs and other opportunities. But while friendship is not as homophilous as marriage – people tend to marry within their own class and race, among other identifiers – the conditions under which people become friends are still powerfully shaped by social inequality. Whether nepotistic promotions occur by design or through more insidious blindness to those outside the inner circle, a more formal recognition of friendship as a potentially exclusionary mechanism could help to promote equality.

Over the past decade or so, legal scholarship both in and outside of Canada has suggested various remedies for the absence of friendship in law. Michigan law professor David Chambers first suggested in 2001 that individuals be able to register at a government office as “designated friends.” These partnerships would make signatories subject to anti-nepotism laws as well as confer rights and responsibilities usually reserved for family: inheritance if one should die without a will; exemption from testifying against one another; and caregiver and bereavement leave.

In Canada, some progress has been made toward extending family benefits to “chosen family.” Changes to employment insurance made since the start of the pandemic allow select workers to access some paid leave to care for ill people in their lives, and the government specifies that “you don’t have to be related to or live with the person you care for or support, but they must consider you to be like family.” A simple attestation form is available for those wishing to declare that they consider another person to be “like family” to them.

It is certainly positive to support more types of chosen relationships than have been recognized in the past. Yet arguably, the language used to describe the value of these intimate connections continues to subtly denigrate friendship. Why should strong friendships need to be likened to another form of connection in order to become visible to lawmakers and officials?

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Children play under the branches of a bush during a Jan. 16 snowstorm in Ottawa.Justin Tang/The Canadian Press

As legal scholar Ethan Leib wrote in an article in the UCLA Law Review in 2007, the question is not whether the state ought to play a regulatory role in our friendships – in fact, the question is how the state could acknowledge the role it already plays. We like to think of ourselves as free individuals, and of the people we love as our freely chosen companions. Yet where we live, who we work with, who attends the same schools as us, the languages we speak and a host of other factors subtly or overtly controlled by state policy open to us some avenues to friendship while closing others.

I live in Ontario, where we have entered into another period of lockdown. The surreality of the past year is a feeling that comes and goes; at times it’s hard to remember the richness of our previous lives. I worry that relationships of affinity – our friendships – are the most vulnerable to lasting harm from the loss of shared experiences and the divisive vagueness of provincial guidelines. I don’t necessarily expect to share a worldview with my family, and while screaming at each other about R numbers doesn’t exactly improve our moods, it doesn’t threaten the underlying fabric of our connection. It is far more unsettling to be speaking with increased caution and delicacy with my friends, as all of us try to respect each other’s choices while also trying to puzzle through which behaviours are truly essential and which are inconsiderate or irresponsible. The social contract has never been more important, and yet, as we recede from one another into deeper isolation, it becomes ever harder to remember what it felt like to be unified with anyone.

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