remorse-manuscript-socialandlegalstudies-websiteedition.doc

How is remorse shown such that the court or tribunal

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feelings that accompany this willingness to take responsibility for one’s misconduct. How is remorse shown such that the court or tribunal can conclude that the wrongdoer’s public expressions correspond to what is felt and can therefore be perceived as revealing his or her true character? I now turn to this component of judicial discourse about remorse. (b) Showing one’s ‘true’ feelings It is yet another paradox in the process by which trangressors are characterized that the most elusive and least articulated of all criteria should also be the most important. For it is the affect that accompanies the verbal claim- in effect, the paralinguistic cues- that is perceived as the true window to the person’s essence. The words may speak of acceptance of responsibility or sincere contrition but it is through the feelings that are demonstrated whether to the adjudicator or to another credible authority that the court believes it can take the true measure of the person before them. But even if there is no currently available means by which abstract emotions such as remorse, guilt, or shame can be reliably correlated with their empirical manifestations, it is clear that the reading and valuing of emotions is very much contingent on the discursive lens through which they are viewed. Moral philosophers posit significant distinctions among shame, guilt, and remorse in terms of how they contribute to ethical behavior- distinctions that are virtually ignored in legal discourse. 6 Similarly, the lively debate among social anthropologists, sociologists, and clinicians over whether shame or guilt is the more socially and morally useful emotion to motivate adherence to ethical 16
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norms has had little impact on a discourse in which shame, guilt, and remorse are often conflated into one category. 7 And, as we shall see, even therapeutic discourse which has far greater input into the creation and application of legal categories than other disciplinary languages, would likely view as pathological the very expressions of remorse that from a juridical standpoint establish character. This is by no means to suggest that legal discourse is without nuance and fine distinctions of its own- that it is not in its own way as elaborated a language as the more academic disciplines from which it selectively draws. What is important to recognize is that the distinctions that are emphasized as well those that are ignored arise from a particular discursive framework. I use the following case to introduce the central dimensions by which remorse as emotion is identified as real or spurious in legal discourse. 8 In this instance, a Committee from The Law Society of Upper Canada is deliberating over whether to admit to the bar a candidate who has up to this point satisfied all the academic and professional requirements for admission but whose final acceptance turns on the issue of whether he is of good character as required under a section of the Law Society Act. The committee’s inquiry is focused on his sexual misconduct with several children with whom he was in a position of trust. One of the children was an 8 year old girl – described in the judgement
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