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The penitent and the penitentiary: questions regarding apologies in criminal law.

Smith, Nick
June 4, 2015

Source: (2008) Criminal Justice Ethics. 27(2):2-6.

As a philosophy professor with a law degree and some experience in the legal profession, I undertook this research with the ultimate goal of creating a framework for apologetic meaning that would illuminate the role of apologies within the legal system. If religion and its practices of repentance once provided the backdrop that framed our understandings of apologies, law increasingly plays that role in modern life. Apologies in both civil and criminal law pull in opposite directions. On the one hand, certain kinds of apologies admit guilt. Whether in criminal hearings, corporate settlement negotiations, or malpractice litigation, admitting guilt is often equivalent to accepting complete defeat. Providing what I describe as a categorical apology can amount to legal suicide within an adversarial justice system. On the other hand, some apologies provide an astoundingly successful means of mollifying disputants. A strategically timed and worded apology can prevent litigation altogether, reduce damage payments and jury awards by considerable amounts, or shave years from prison sentences. An apology can accomplish nearly all of the objectives of reconciliation, redress, and punishment, but only if it rises to the level of what I describe as a categorical apology.

To this end I am working on Apologies in Law, which extends my arguments about the meanings of apologies to civil, criminal, and international law. If so many of our moral conversations occur in the context of apologizing and if so many offenses within modern culture become legal disputes, we can appreciate the complexities of finding these highly nuanced rituals of contrition within the labyrinths of modern legal institutions. Apologies in Law attempts not only to make explicit the various kinds of hidden meaning in acts of contrition by legal actors, but also to empower legal actors with tools to evaluate the apologies given and received in law and law-like environments. In this regard, I aim to write this book with the theoretical precision expected by philosophers while offering the type of practical analysis that speaks to judges, legislators, attorneys, advocates, and litigants.

Apologies in Law will consider apologies in various legal contexts, but for the remainder of this commentary I will outline what I consider the most significant questions arising in relation to expressions of contrition within criminal justice. I find these issues immensely important for offenders, victims, and communities and I should warn from the outset that I am only beginning to appreciate the complexity of these moral questions and their ramifications for criminal justice systems. (excerpt)


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