Session 7: Forgiveness and Law

2nd Global Conference

Friday 13th March – Monday 16th March 2009
Salzburg, Austria

Conference Programme, Abstracts and Papers

Miscommunication is often listed as one of the top three reasons for separation and divorce and “irreconcilable differences” in marriage. As an interpersonal communication scholar, I study how the skills of listening, creating empathy, and conflict management and resolution strategies can help troubled couples maintain relational satisfaction and longevity. Gottman (1994), a prolific scholar who has studied marital communication for 30 years, can watch and listen to a couple interacting for 5 minutes and determine with 91% accuracy whether the couple will stay together or divorce one another. While most marriage therapy is dedicated to teaching active listening skills and conflict resolution skills to marriage partners, Gottman reports that the national results of marital therapy indicate a relapse rate of 30 to 50 percent and do not benefit the majority of couples. It appears that even armed with good communication skills, many couples cannot resolve their differences. Ongoing United States statistics of divorce maintaining a 50% – 67% rate bear this out (Cherlin, 1981; Martin & Bumpass, 1989). In addition, couples who separate face a daunting 75% probability of divorcing (Bloom, Hodges, Caldwell, Systra, & Cedrone, 1977). Approximately only 10 percent of married couples in the US have separated and reconciled (Wineberg & McCarthy, 1993). And sadly, the divorce rate for second marriages is about 10% higher than for first marriages (Glick, 1984) and 20% higher for 3rd marriage attempts. Current statistics do not include information on couples who marry, divorce, and remarry the same spouse.

Brehm (2007), distinguishes the difference between a skill deficit and a performance deficit. For instance, a person can know how to communicate clearly but not choose to do so with a particular partner. In this case, it is a performance issue rather than a skill issue. So, even armed with good listening or conflict management skills, some couples refuse to engage in them which indicates an internal barrier. One such barrier may be the ability and/or willingness to forgive. Thus, my interest is in the relationship between forgiveness and reconciliation in troubled marriages. The present study is a pilot study of three couples who have married, divorced, and remarried the same partner. Participants will complete a demographic questionnaire, the 60-item Enright Forgiveness Inventory (EFI) and the Locke-Wallace and Locke-Williamson Marital Satisfaction Inventories and then be interviewed. Based on results and insight from the survey responses and interviews, a larger study will ultimately be conducted using self-administered questionnaires filled out by divorced, separated, and reconciled partner groups to test the following hypothesis: H1 – Couples who report higher levels of marital satisfaction also report a higher propensity for forgiveness; and H2 – Couples who reconcile following separation/divorce report higher marital satisfaction and forgiveness ratings versus those who do not reconcile. Results should indicate that forgiveness is a primary factor that differentiates couples who choose to reconcile following separation or divorce and those who do not reconcile with one another and move on to marry a different partner.

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The law is characteristically hostile to the notion of forgiveness; it does not and cannot enforce norms of forgiveness. Or so it is commonly held. While I do not deny the impossibility of coercing people into forgiving their wrongdoers, I shall argue that the conventional wisdom mentioned above is too simplistic to successfully capture the lived experience of the law. Indeed, insofar as the law (or at least familiar parts thereof) expresses a respectful way of being with others in the world, one would expect to find legal recognition of the prominence of forgiveness in our moral experience of one another. The ambition of this paper is to explain why such recognition (properly understood) is both conceptually possible and normatively warranted.

The precise elaboration of my account of the intimate connection between forgiveness and law will be developed in connection with tort law, which is the most natural place to look for the law’s stance toward forgiveness among individual persons. In particular, I shall argue that tort law’s duty of repair facilitates the extra-legal practice of forgiveness among tort victims and their respective tort-feasors, and thus helps engendering a sense of respect and social solidarity among members (typically strangers) of the complex, modern society. More concretely, I shall show that the duty of repair, once it is properly executed, re-establishes the respectful community that could have been shared by the disputing parties had the tort-feasor not wronged the victim. Accordingly, it exerts moral, rather than coercive, pressure on the part of the latter to forgive the former for her tortious conduct.

To make good on my argument, I shall argue that the dominant approaches to the morality of tort law (such as corrective justice and economic analysis of law) fail to make sense of this forgiveness-engendering property of tort law. These accounts are not just morally indifferent to tort law’s influence on the reasons victims have with respect to their attitudes toward their wrongdoers. They also render such influence (in favor of forgiveness and against ongoing resentment) impossible. This failure is no mere triviality. For, it implies that their accounts of tort law do not conform to our moral intuitions about the normative structure of our relationships with one another, a structure that can hardly sustain itself without insisting on the centrality of forgiveness. My account of the duty of repair, by contrast, offers a sympathetic reconstruction of tort law being the legal expression of the social norms by which we live together. It makes sense of the crucial role of forgiveness in reestablishing respect and solidarity between tort victims and injurers, thus casting the appeal of a socially sensitive tort law into sharp relief.

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In a remarkable paper published in 2001 and addressed specifically to the Truth and Reconciliation Commission of South Africa, Jacques Derrida argued for the radical decoupling of remorse and forgiveness arguing among other considerations that for forgiveness to be meaningful, it must be offered without conditions- and, in particular, without any expectation that the wrongdoer or transgressor demonstrate remorse for their misconduct. While this purist conception has been adopted in some religions, demonstrations of remorse occupy center stage in many legal regimes as conditions for mitigation, clemency, parole, positive characterization, as well as other determinations that overlap with theological notions of forgiveness. In this paper, I want to confront Derrida’s conception with sociological explanations for why remorse and forgiveness are coupled in law and in public discourse as part of a larger drama of transgression, acknowledgement, and reinclusion in larger community. But I also want to unsettle this coupling of remorse and forgiveness in law by showing some of the problems it has generated. Using examples from my own research into how remorse is attributed in Canadian and US law, I want to argue that the sociological reasons for decoupling remorse and forgiveness in law are as compelling as the reasons for making remorse a condition for forgiveness.

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