Being and Doing: The Judicial Use of Remorse to Construct Character and Community

Abstract

This article argues first that attributions of remorse are used in legal discourse to distinguish those whose character is perceived as different from their wrongful act (the remorseful) from those whose character is perceived as consistent with their wrongful act (the remorseless). It then advances an explanation as to why courts emphasize the showing of remorse more than the offering of an apology as the true measure of the wrongdoer's character. Next, using a population of Canadian judgments rendered between 2002 and 2004, It proceeds to identify how judges constitute the category of remorse through the criteria they use to decide which claims to remorse are valid and which are not. Finally, building upon work in the sociology of affect, the article looks at how judicial speech shapes the form that expressions of remorse are expected to take.