COVID-19 and Law: Mutual Aid, Civic Friendship, and the Bad Man
By: Marc Spindelman
Tags: Mutual Aid, Co Vid, Law, Public Health, Friendship

Lessons from Some Law Students About Our Shared Humanity Amidst a Global Pandemic

The following is a talk that was publicly delivered on Tuesday, March 31, 2020, as part of “COVID-19: A Virtual Up-to-the-Minute Discussion of the Pandemic’s Impact So Far,” sponsored by The Ohio State University’s College of Public Health.

I’m glad we are all here today. Community matters. I’m very thankful to be in community like this with you all.

I am a law professor. I teach and write about law. Today I want to talk with you about how the moment that we — women, men, and nonbinary people — are living in has the potential to alter what we think about, need, and get from the law.

In many ways, what we’re collectively doing in this moment of crisis is remarkable. It’s going to change how we live. Nobody knows all the ways. We aren’t only now busy caring for ourselves and our loved ones — as much as we are doing that. The social distancing and isolation we are practicing is itself a great, heroic act of civic friendship. We are filling in the spaces between us with shared, fundamental values: of relationships, and of caring for the welfare of our communities.

Examples of civic friendship abound. Thinking locally, emergency personnel — nurses, doctors, and other health care providers and first responders of different sorts — are daily risking their wellbeing to care for and engage with total strangers who are or may be sick. So, too, are workers working all along newly reconfigured food supply chains and other laborers supplying essential services. These folks didn’t sign up for hazardous work at non-hazard pay, but they’re showing up, shift after shift, and doing it just the same.

Our students, including law students, are showing up, too, outside of their classes, in some new ways. I’ve recently learned about how some of our students are undertaking community work, appropriately socially distanced, involving mutual aid with strangers with needs.

Mutual aid — a type of civic friendship that can trace roots to the radical left as well as to federalist republican traditions — is neither charity nor professional nor not-for-profit work. Aid is among equals. It recognizes that needing is part of the human condition, distinctively, but not only, in crisis. Figuring out what our needs actually are and asking for help in getting them met can itself be a gift that allows another human being in, to meet a need that stands ready to be met. Exchange in this setting is mutual, equal, dignified, respectful. Done right, these exchanges aren’t transactions but practices in new ways of witnessing and being with ourselves and others. Political ideals like mutuality, equality, dignity, and respect don’t refer here to how the government should treat those it rules. These political ideals are embodied civic practices that manifest inside us and in our relations with others. The “civic friendships” that result can change us as they change the social worlds we co-create: worlds that hold us together in crisis moments and beyond.

As I’ve learned when trying to experiment with practices like these in my teaching and writing, it’s easier to describe this work than actually do it — especially well. Then along come these students working it out in real time. There they are building platforms that invite people to name and claim needs — around food, finances, shelter, among other things — that others in the community are invited to meet. Strangers helping strangers this way locally forge new friendships and communities, with ever-widening ties across the state.

It feels right to thank and honor these students for their work, including for the teaching it does. And the questions it asks us to ask ourselves through its example: What needs of our own might drive us to consider making similar offerings? How might we learn to receive by giving? Or give by receiving?

Civic friendship doesn’t work by the state’s command: be and act as friends. It works because it’s voluntary. Understanding that, civic friendship might not seem to involve law at all. What does, by contrast, when we think of the law in moments of crisis, is legal regulation that involves civic friendship’s opposite: civic animosity, or enmity. Civic enmity is an idea that may remind us of Oliver Wendell Holmes’s lessons that law is about “the bad man.” Holmes’s “bad man” proves Thomas Hobbes right: That life in nature, being nasty, brutish, and short, involves a war of all against all. The state’s job on this view is to exercise its proper monopoly on legitimate violence, controlling the bad man through sanctions that stop or deter him from doing bad things. Law should be on its toes in crisis when to the bad man the sky’s the limit, a time for acts that law does or could bar like price gouging, fraud, exploitation, discrimination, and interpersonal and social violence. Mayhem? That’s him.

If law is about the bad man, it’s easy to suppose the legal rules that regulate him are good, perhaps written, enforced, and interpreted by his sworn enemies: good men, or good people. These possibilities can be true, of course, but in our political tradition, way back to the Founding Fathers and before, recalling hard experience, structures of government are widely crafted to handle the prospect that government will fall into the hands of bad men or men who start out good but are corrupted by power.

This helps explain why we can so readily think about government as providing for the general welfare and the blessings of liberty, while also thinking about how it constantly threatens them and us. Recognizing these threats, legal traditions, some in the form of constitutional rights, promise to protect us all from a government that would steal our individual and collective freedoms.

So, we can praise government while remaining ever vigilant, alert to its dangers. In the present tense, this means being genuinely thankful for the good government from political leaders like Ohio Governor Mike DeWine, while keeping our eyes peeled for governmental abuses of power. Hence the struggles over government money, watchdogs, and where medical supplies, including tests, masks, medicines, ventilators, and, hopefully soon, safe and effective vaccines, will go. We keep faith with our legal traditions by thinking about the government providing these things and also who will get them or other governmental goods like police protections as first responders themselves get sick. We are vigilant because our rights to life, liberty, equality, and the pursuit of happiness depend on it.

What we have, then, is a complicated picture in a complicated moment. We have civic friendship and its possibilities, including thinking about law from the perspective of good persons. And we also have thoughts of needing to write law to control the bad man. As well as thoughts of good government that can go bad.

This complicated picture being basic to how we live together, we can find reflections of it in common rituals like songs our communities sing. Think here, for example, of the oldest song at The Ohio State University: Carmen Ohio. Its first verse famously speaks, “hearts rebounding thrill [w]ith joy,” about the “firm friendship” of Ohio, of which we who have lived in the state are all a part. The second verse talks of the good and joys that that friendship brings in the “jolly days of priceless worth / [b]y far the gladdest days on the earth.” But then — ominously — the next verse brings a sharp shift. Talk of “friend” turns into talk of “foe,” as words paint a picture of sailing on “seas of care” “[n]eath blackened sky” and “barren shoal.” If the first and second verses remind us of the power of friendship for good and delight, the third reminds of the perils of enmity, an enmity that is ultimately overcome by thoughts of our beloved Ohio that “bid darkness go.”

If the moral of Carmen Ohio is that enduring bonds of friendship may carry the day, this may yet prove true of civic friendship in real life. The bonds of relationship and of caring for the needs of our communities and their welfare do run very deep. We’re apart today — not in person — because of them. But these bonds are not yet so deep that we can release all concerns about the bad man and a government that can harm us as easily as it gives us a lift. Look at how civic friendship is playing out in national politics: Politicians, so often politically at odds with one another, are coming together as civic friends through relief legislation to make government work for the people, caring for our national political community’s needs as we weather the present storm, together.

What will law look like on the other side? Who can tell? Undoubtedly, it will be some variation of the picture just described: of friendship, of the enmity of the bad man, and of actions by the government that we need to help us but without violating our rights.

What I mean to say here is that one key element in all that we do now involves how well we can manage to get in touch — and stay in touch — with the importance of the idea and practice of mutual aid, which reveal the human condition as a condition in which we all need and need to take (better) care of one another, not as “others” but as ourselves.

This is a lesson that some of our students are powerfully teaching us through their actions. My day job is as a teacher of students. I am also, however, a student of my students’ teachings. I hope you will be — I am tempted to say, I need you to be — too.

Thank you.

© 2020 by Marc Spindelman, All Rights Reserved.

Marc Spindelman is the Isadore and Ida Topper Professor of Law, Michael E. Moritz College of Law, The Ohio State University.