Apology and Pardon

Apology and pardon are everyday social responses to all sorts of social breaches and legal wrongs. Apology expresses regret and responsibility. The aim is remedial. To apologize indicates an intention to restore or maintain a relationship. It invites a reciprocal response. Apology seeks pardon. Pardon in turn reflects an injured party's willingness to restore a preexisting relationship and to avoid hostility.

Apology and pardon are widely practiced in closely knit, stable communities. The prevalence of apology in Japan is well known. Equally well documented is the incidence of apology and community pardon in response to wrongdoing in tribal rituals. Preference for apology and pardon also has underpinnings in most religions. By ameliorating the consequences of injury and wrongdoing, they dissipate grievance. They thereby facilitate peaceful resolution of disputes and reduction of social conflict and help to maintain social cohesion and community.

In most legal systems, apology and pardon function as undercurrents. Rarely integrated or recognized as formal components of any legal system, they remain nonetheless influential. Apology and pardon are factors that can determine whether injured parties will initiate legal action and activate the law enforcement process. Scholars explain low litigation rates in Japan, for example, in part by widespread use of apology and pardon. By reducing psychological incentives for victims to sue or to file formal complaints with public law enforcement authorities, settlements that do not reflect anticipated outcomes of litigation or bargains “in the shadow of the law” become more prevalent. Conversely, where apology and pardon are less prevalent, the effective enforcement of legal rules can rely more on victim-activated mechanisms. Legal disincentives for apology and expanded private and public law enforcement opportunities and incentives also reduce the incidence and influence of apology and pardon.

The behavioral effects of apology and pardon are especially evident in criminal law enforcement. Studies on recidivism confirm that offenders who acknowledge wrongdoing and express remorse are far more likely to correct antisocial and other illegal behavior than those who deny wrongdoing or refuse corrective treatment. Pardon operates as a socially reintegrating mechanism.

As demonstrated by victim-offender mediation, drug courts, and similar programs, criminal justice approaches that encourage offenders to apologize and victims to pardon have had notable correctional success. They both satisfy victim needs and reduce recidivism. However, they inexorably implicate deeper social and political tensions between retributive and restorative emphases in criminal justice. They have remained institutionally marginal in most contemporary legal systems at least in part because of deeply embedded societal preferences for more retributive approaches and prevailing attitudes of law enforcement authorities acting as surrogates for society.