remorse-manuscript-socialandlegalstudies-websiteedition.doc

Secondly this inquiry focuses not on the moral

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coupling of these demonstrations with rewards and punishments. Secondly, this inquiry focuses not on the moral performance of the wrongdoer but rather on how these demonstrations of feeling are interpreted by others. Whereas most academic and media commentaries have focused on the words and gestures of the wrongdoer or how and whether these expressions meet particular criteria to qualify as remorse or apology, this analysis takes as its object of inquiry the interventions of those who shape these criteria. Indeed, it is central to the approach taken below that not just the 4
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expressions of the wrongdoer but the perspectives of those who evaluate them be treated as problematic. In the following analysis, I approach law not as the only site for the dividing of transgressors into those who show remorse and those who do not but rather because it is the most public of the many institutions that regulate social conduct as well as the one that claims to speak with authority for the moral community as a whole. More specifically, I make use of a population of 178 Canadian cases decided between 2002- 2004 in which the remorse of the offender or wrongdoer was a matter of dispute between those who spoke for or against his or her claims to remorse or in which remorse was a central point of consideration in the judgement or decision. 2 For present purposes I have drawn from all areas of Canadian law in which designations of transgressors as remorseful or not are deployed as grounds for inclusion or expulsion from their occupation, their country of choice, from civil society, or from any other community of reference. All of these judicial glosses will be treated as part of the body of decision- making that tells us how courts and tribunals constitute through their evaluations and interpretations what it means to show remorse. Before undertaking this analysis, however, it is necessary to locate the place of remorse both in the context of previous theorizing on the subject and in the context of legal discourse. 5
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Being and Doing: Why Courts Speak of Remorse Instead of Apology What Erving Goffman pointed out in his now classic essay on remedial exchanges with reference to the offering of apology also applies to the showing of remorse(Goffman, 1972, pp.113-118.) In both forms of communication, the offender virtually splits herself or himself between the self that committed the offense and the self that joins with the aggrieved in agreeing that the offending act was morally unacceptable. The work of expressions of remorse or the offering of apology- if believed- is to represent the wrongdoer as other than the act for which she or he has been condemned. If the moral performance is successful, then it may be inferred that the self that condemns the act is more real than the self that committed the act. Contrariwise, for the unapologetic or unremorseful, the act becomes their essence. If they do not separate themselves from the act or if their apology or show of remorse is not believed, then the transgression comes to define who they are- the self that committed the offending act is the true self.
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