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March 6, 2009

Understanding why it may be hard to say sorry

As detailed in some of the links below, there has been a lot of interesting recent discussion of the role of apologies in the criminal system.  Consequently, this new paper on SSRN, titled "Saving Face: The Benefits of Not Saying I'm Sorry," is an important addition to how we come to understand and operationalize apologizing in the law.  Here is the abstract:

This forthcoming article explores the question of why individuals resist apologizing, even when it is rationally in their best interest to do so -- such as when it would significantly reduce a criminal sentence or settle a civil lawsuit at little or no cost. Drawing on a significant body of research by social psychologists on apology, the article posits that individuals primarily resist apology when it poses an intolerable threat to their face -- or their claimed identity as competent, intelligent, or moral persons. In light of this research, the article then critiques the failure of recent laws designed to encourage or compel apology to take face into account.

Some related posts:

March 6, 2009 at 09:25 AM | Permalink

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Comments

This is such an important topic to explore! In many states and at the federal level, there is a de facto rule that executive clemency will not be granted to someone who does not accept responsibility and/or show remorse for their crime. While this may be a reasonable requirement (clemency is traditionally considered a grant of mercy or forgiveness, which implies wrongdoing), it is hugely problematic for people who claim to be innocent, people who feel that relevant/acquitted conduct overstates their culpability, and people who simply have a hard time admitting that they broke the law.

Posted by: M | Mar 6, 2009 2:03:24 PM

The other problematic aspect of considering remorse in granting leniency is that you have to distinguish genuine remorse from fake.

Posted by: Kent Scheidegger | Mar 6, 2009 2:21:09 PM

The real hidden question in this type of social/psychological study: is "face" a value worth saving. In some cultures, the answer to the question is an emphatic yes. Other cultures traditionally show less concern for the issue of face. Then throw in individual psychological factors and the issue gets complicated. Trying to determine whether a person "means it" when they "say sorry" is something that even a child believes it can detect but it confounds the deepest psychological analysis.

But the real question is what the law should do. Because if expressions of remorse are taken out of the picture, you also have to take out of the picture the meaning of remorse to the victim. Because the purpose of "saying sorry" is not just the cathartic impact (whatever it is) on the criminal; it's the emotional and psychological impact hearing an apology has on the victim. From this perspective, remorse is not merely an "acceptance of responsibility;" it a form of emotional restitution.

Posted by: Daniel | Mar 7, 2009 9:04:05 PM

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