remorse-manuscript-socialandlegalstudies-websiteedition.doc

R as remorseful and the subsequent revocation of this

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Mr. R as remorseful and the subsequent revocation of this judgement is simply an exaggerated instance of a more pervasive tendency to expand or diminish the criteria for remorse in support or in opposition to a particular outcome. But this is not to suggest that such ambiguity leads to a randomness of results or that it is without its uses. It is this variability in elaboration that allows other contingencies to enter into judicial discourse. Under the rubric of remorse as acknowledgement, the court can demand of the offender not just a guilty plea but verbatim agreement with the terms of the charge as well as proactive efforts to communicate this acknowledgement to the victim. In the context of remorse as suffering for the other, the court can expect not just the expression of grief but feelings of devastation- not just an attempt at suicide but a clear indication that such acts of self-destruction spring from empathy with the other and not from fear of consequences. As for remorse as self-transformation, the court can demand proof of a major characterological change rather than a mere willingness by offenders to allow themselves to be changed. At one level, the most obvious contingency is the gravity of the offence- those offences that are accorded longer sentences are also the same offences for which there is more contestation as well as expanded expectations. But the thrust of this analysis is to suggest that juridical speech does not merely respond to what are more serious offences by adding more conditions for claims of remorse to be validated. Judgements about remorse are not just reactive. They are constitutive- they establish the gravity of the offence by defining how much suffering, how much submission, and how drastic a self- transformation is required for the offender to reestablish themselves as a member of the 32
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moral community. For the crime for which Mr. R was convicted, the price of membership- the pain threshold by which remorse is measured- just increased. It is in these terms that one can speak of a moral economy of suffering. If the remorseful offender is the recipient of law’s mercy as well as the court’s approbation as someone who is still a member of the moral community- ‘not inherently bad’ to quote from one judgement- the obverse is the denunciation of those who do not show remorse coupled with the withdrawal of mercy. Those who do not accept responsibility, who do not suffer for their transgressions, who do not evince a willingness to alter their character are not merely disfavored- they are the objects of judicial outrage. The language directed towards such persons who are described as having shown “not one scintilla of remorse” or “flagrant contempt (by) not showing any …remorse or acknowledgment of wrongdoing( Law Society of British Columbia v. Hanson [2004]:48)” both constitutes and reflects the vast moral divide between those who are worthy of law’s mercy and those who are not.
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