Guilt and apologies

Thoughts after the Day of Atonement

I am interested in what incentivises people to do the right thing, how we remedy wrongdoing through both actions and words, and in how people respond to the norms around them. It’s no wonder that I became a Remedies specialist.

I am also interested in both guilt and apologies. In my Remedies textbook, I have a chapter on remedies, including apologies, declarations, and nominal damages.

I am naturally prone to guilt, perhaps because I am highly empathetic. It spurs me on to finish things. I must write that chapter; prepare those lecture slides; do that marking; because otherwise I will let down my colleagues or students. If I didn’t care, I could ignore the difficulty this would create for my colleagues or students, but alas, I care very much. Sometimes I think I care too much.

Photo by Ben White on Unsplash

Guilt has a downside too. First, it means I am dutiful, possibly to a fault. I’ve had pneumonia several times, because I would not take time off work when there was no other lecturer to cover me.

I also apologise randomly for things which bear no relation to me, and over which I have no control. I’m trying to stop myself—it’s a form of conceit, in a way.

Sometimes guilt overwhelms me, and I become paralysed. This is no help to anyone.

The antidote to guilt is atonement and apology: an attempt to make recompense is often involved. Then the parties move on. The victim does not forget what happened—indeed, it’s important for both parties to learn from what happened—but she does not hold onto resentment.

Colloquially, a full apology encompasses (at the least) expressions of remorse and regret, and an acknowledgement and acceptance of responsibility for a wrong, as well as an element of reparation.¹

The word ‘apology’ derives from the Ancient Greek apologia, and originally, it signified a formal legal defence, hence Plato’s Ἀπολογία Σωκράτους [Apología Sokrátous] or ‘Apology of Socrates’ (399 BC). Clearly, this defence did not save poor Socrates; he was forced to drink hemlock for corrupting the youth of Athens.

Should courts order wrongdoers to apologise? My instinctive reaction, upon reading of this, was, “No! An apology must be genuine, from the heart!” Then I realised that I’d made my then 8-year-old apologise to my then 5-year-old that morning, after she accidentally hit him when they were playing a wild game.

Now I can see circumstances where, rather than ordering an individual to apologise, we might want to order government bureaux, organisations or corporations to state what they will do better in future, to stop systemic wrongdoing.

Our tort legislation in Australia allows room for apologies to be given without an admission of legal liability.² This is important to me, on a personal level. When I was 14 years old, my 9-year-old sister was hit by a car, in front of me, on our thirteenth day of living in England (*cue Twilight Zone music*). Her leg was broken, she was concussed, and she was in hospital for two months. I wanted the driver to apologise to my sister. My parents explained that he could not, because he might be sued if he did so. Situations like this are why our tort legislation now makes room for apologies without liability.

Many years later, I received an apology letter, pursuant to s 69 of the Civil Liability Act 2002 (NSW). Even “better”, the injury I suffered was at a Tort Law conference! Could it be more ironically poetic? I’m anaphylactic to tree nuts, and I was served a sandwich with walnuts. It was almost worth having to self-inject myself with adrenaline and be hospitalised, just to get the apology letter and see that the statute was working in some small measure. The caterer said they had put in place measures to ensure that what happened to me would never happen again. I have kept the letter in a plastic pocket in my office.

I believe that making room for an acknowledgment of wrongdoing, as well as an expression of remorse and regret, is really important. It’s part of what makes us civil and humane. Ideally, it provides a feedback loop: a wrongdoer did wrong, a victim was injured, the wrongdoer feels sorry for their injury, and will try not to do it again, by changing their practices. People move on and hopefully learn.

Decent humans feel bad when they hurt another human, and try to order their affairs so that they don’t do it again. This is why I like Yom Kippur: a corralled day of guilt and atonement, then move on to the next year, with a resolution to do better. I hope I do better. 🙏🏻

Photo by Brett Jordan on Unsplash

I am bothered, however, when—particularly online—an apology is taken as a signal that the wrongdoer is utterly evil. I’ve seen this happen several times, and hence I would be very careful about apologising on social media. Rather than an online apology being accepted, and the wrongdoer being forgiven, it seems to lead to an intensification of the view that the wrongdoer was wrong, and must be destroyed. There is no forgiveness or understanding.

It reminds me of the Officer in Kafka’s In The Penal Settlement:

“…My guiding principle is this: Guilt is never to be doubted. Other courts cannot follow that principle, for they consist of several opinions and have higher courts to scrutinise them. That is not the case here, or at least, it was not the case in the former Commandant’s time. …”³

Guilt has a dark side, particularly when it is allowed to swamp everything else, and there is no opportunity for atonement or doubt.

Guilt can even be used to make good people—caring, empathetic people who feel concern for others—do bad things. The road to Hell is paved with good intentions.

Recently, I read Thought Reform and the Psychology of Totalism: A Study of “Brainwashing” in China, in which Robert Jay Lifton discusses how the Maoist regime came up with a planned program for changing peoples’ beliefs:

…thought reform consists of two basic elements: confession, the exposure and renunciation of past and present “evil”; and re-education, the remaking of a man in the Communist image. These elements are closely related and overlapping, since they both bring into play a series of pressures and appeals—intellectual, emotional, and physical—aimed at social control and individual change.⁴

Lifton goes on to describe how one Western prisoner was slowly turned (albeit not permanently), over the period of three years:

He had become an experienced prisoner, and was beginning to be looked upon as a true progressive. He even came to believe a great deal of what he was expressing—although not in a simple manner:

“You begin to believe all this, but it is a special kind of belief. You are not absolutely convinced but you begin to accept it—in order to escape trouble—because every time you don’t agree, trouble starts again.”⁵

Pivotal to this exercise is the manipulation and exacerbation of guilt and shame.

The desire to avoid trouble and keep one’s head down is natural. I am willing to bet that we have all felt it at times, and acted accordingly. This also explains why and how authoritarian tyrants of any stripe come to power: they leverage a mixture of violent coercion, threat, guilt and shame. Many instances come to my mind—fascist, communist, theocratic—involving all kinds of societies and times. Some humans are exceptionally good at playing ideological status games.

Lifton explains how the confused prisoners were made to make false confessions and actually felt genuinely guilty, in ways they could not fully shake five years later:

In making their early false confessions … [the imprisoned men] were beginning to accept the guilty role of the criminal. Gradually, a voice within them was made to say, ever more loudly: “It is my sinfulness, and not their injustice, which causes me to suffer—although I do not yet know the full measure of my guilt.”

At that point their guilt was still diffuse, a vague and yet pervasive set of feelings which we may call a free-floating sense of guilt. Another prisoner expressed this clearly:

“What they tried to impress on you is a complex of guilt. The complex I had was that I was guilty… I was a criminal—that was my feeling, day and night.”⁶

The prisoner is made to internalise the wrongdoing, and accept his or her guilt. But—and this is important—in most cases Lifton described, objectively the prisoner did nothing wrong. The forms of wrongdoing for which prisoners were required to confess included being of a particular ethnicity, or having particular parents, or coming from a particular country whose people had done wrong in the past.

It struck me that you can’t be guilty for everything, and that our private law recognises this. I’m obsessed by the concept of “remoteness” in damages.⁷ Bear with me, if you’re not a lawyer. My diversion here is relevant, but you may be wondering what I mean. Remoteness means that there’s a point where someone can’t be held liable by the courts for causing wrongdoing any more.

Whether someone should be held liable depends in part, the courts say, on whether the consequence of the breach is predictable or not. If it’s predictable, the more likely a court will find that the defendant should have had that consequence in mind, and pay for the consequences.

It’s also relevant to consider the extent to which the defendant has control over their actions. If the defendant’s action was unintentional, this can point away from extensive liability. Carelessness is somewhere in between unintentional and intentional wrongdoing.

If a defendant deliberately chooses a wrongful course of action, a court is more likely to conclude that a defendant should be held to be responsible for the consequences, even if they’re unpredictable. Indeed, sometimes, a dishonest and deliberate breach will render someone liable even for highly unpredictable consequences.

Another concern is that the defendant should not be subjected to an unreasonable and disproportionate burden by reason of a damages award. I’ve called this, in a forthcoming work, the “pebble that started an avalanche” concern: sometimes a small action can have enormous, unexpected consequences for which it is not fair to hold the defendant liable.

Our legal system has points where it says: “You do not have to make recompense. You had no control over that outcome. It was too unpredictable, too distant from you, too far out of your control.”

As I’ve discussed before, we also have statutes of limitations: after a certain amount of time, you cannot bring a claim any more. There is a point where people should not be held responsible for wrongdoing any more, even if what they did was wrong. Let bygones be bygones, let go of resentment.

I use my thoughts on remoteness to remind myself: there is a point where guilt should run out, and I should not feel responsible for all of the ills in the modern world. Where I have control over what I do, I should take responsibility for it, but—to hark back to the discussion of struggle sessions—I am not responsible for who my parents were, for example, or for their actions, either for good or for ill. I’m reminded of the Australian birthday song:⁸

“Why was she born so beautiful, why was she born at all?

Because she had no say in it, no say in it at all…”

Feeling guilty about our wrongful actions is important. To fail to feel guilty shows that one lacks empathy, and is indifferent to the suffering of others. It is appropriate that we acknowledge the wrong, and seek to atone, so that we can move on.

However, as our private law recognises, there are limits to which we should fairly hold people responsible for things over which they had no control.

Such were my thoughts, over the last two weeks.

1. D Slocum, A Allan and MM Allan, ‘An Emerging Theory of Apology’ (2011) 63 Aust J Psych 83.

2. Civil Law (Wrongs) Act 2002 (ACT), ss 12–14; Civil Liability Act 2002 (NSW), ss 67–69; Personal Injuries (Liabilities and Damages) Act 2003(NT), ss 11–13; Civil Liability Act 2003 (Qld), ss 68–72; Civil Liability Act 1936 (SA), s 75; Civil Liability Act 2002 (Tas), s 7; Wrongs Act 1958(Vic), ss 14I–14L; Civil Liability Act 2002 (WA), ss 5AF–5AH.

3. Franz Kafka, ‘In the Penal Settlement’ in Franz Kafka, Metamorphosis and Other Stories (Penguin, first published 1938, trans. Willa and Edwin Muir) p. 175.

4. Robert Jay Lifton, Thought Reform and the Psychology of Totalism: A Study of “Brainwashing” in China (University of North Carolina Press, rev’d 1989, first ed 1961) pg. 5.

5. Ibid, pg. 31.

6. Ibid, pg. 68.

7. If you need proof of the duration of my obsession, you can read Katy Barnett, ‘Equitable compensation and remoteness: not so remote from the common law after all’ (2014) 38(1) University of Western Australia Law Review 48, which was the beginning of me developing some of these ideas.

8. A quick Google search revealed OTHER PEOPLE DO NOT SING THIS SONG at birthdays. What?! What is wrong with you all?