A genuine apology — an acknowledgement of wrongdoing and its seriousness, repentance, and asking for forgiveness — is durable. Both the duty it imposes upon the perpetrator and its effectiveness survive the victim’s death. There is no statute of limitations on the duty to apologize of the relief it brings to the perpetrator. Because we are dealing with a matter of morality rather than a question of legality, the duty to apologize and its effectiveness remain until the requisite apology is made.

This point is critically important in understanding the duty to apology. So long as the perpetrator or its successor-in-interest is alive (a family or institution, for example), the transgression’s moral stain does not perish with the victims. The perpetrator still has something for which to apologize. It is only the tender of apology that retires the moral duty to apologize. For that reason, I would argue that Polish President Aleksandr Kwasniewski did the morally correct thing when he apologized at a ceremony honoring 1,600 Jews murdered by Polish civilians on the eve of World War II. Although all the victims were dead, he offered this apology: “For this crime, we should beg the souls of the dead and their families for forgiveness. Today, as a man, citizen, and president of the Polish republic, I ask for pardon in my own name and in the name of those Polish people whose consciences are shocked by this crime.”[1] The imposition of a statute of limitations on the Polish government’s duty to apologize would be improperly legalistic.

Other considerations also add further support to my view that the unfulfilled duty to apologize as well as the apology’s effectiveness survive the death of the victims so long as the perpetrator or its successor-in-interest is still alive. It would be a cruel irony if the perpetrator could absolve itself of the moral duty to apologize by simply wiping out all its victims. Here, the murderer would be benefitting from its dastardly act. Also, the perpetrator should not be denied the opportunity for redemption if, for example, its living victim decided, for one reason or another, not to come forward and make his or her presence known.[2] Finally, people typically do not want to carry personal guilt to the grave. To say to one who is dying that your apology means nothing because the victim died years ago seems rather cruel. Laches, a legal concept meaning you waited too long to assert the relief to which you are entitled, is misplaced here. The need to unburden oneself in the final minutes of life is fundamental and ought to be respected in a humane society.


The perpetrator’s request for forgiveness is one of the elements of a genuine apology. But if an unaccepted apology still brings redemption to the perpetrator, why should the perpetrator be required to seek forgiveness? Why is apology’s fourth element necessary? Others also believe the perpetrator must request “forgiveness from the person harmed.”[3] Elie Wiesel’s rabbinical reflection on the matter is most insightful. Weisel’s thinking on the subject was expressed in remarks given at the dedication of a Holocaust Remembrance site at the Brandenburg Gate in Berlin. The New York Times reported them as follows:

Mr. Weisel concluded by urging Parliament to pass a resolution formally requesting, in the name of Germany, the forgiveness of the Jewish people for the crimes of Hitler. “Do it publicly,” he said. “Ask the Jewish people to forgive Germany for what the Third Reich had done in Germany’s name. Do it, and the significance of this day will acquire a higher level. Do it, for we desperately want to have hope for this new century.”[4]

Seeking forgiveness enriches the moral quality of the apology. It makes the apology more believable and, hence, the prospect that the transgression will recur more unlikely.

There are times when a genuine apology is inadequate, when simply saying “I’m sorry” is not enough.[5] Where the perpetrator’s transgression causes serious injury to the victim, physical or psychological, a genuine apology by itself is insufficient to allow the perpetrator to reclaim its moral character. Justice demands that perpetrators who cause injury must be held accountable both criminally and civilly. An apology rings hollow, for example, if a murderer can avoid incarceration by merely apologizing for the killing. The apology, in fact, seems more opportunistic than genuine.[6]

Other moral precepts can, however, override retributive justice, making the apology self-sufficient. A case in point is South Africa. The South African Truth and Reconciliation Commission made the decision to grant amnesty to apartheid perpetrators who made public confessions. This presented an intense conflict between retributive justice and other moral precepts, most specifically “truth, reconciliation, peace, [and] the common good” according to Willem (or Wilhelm) Verwoerd, a South African philosophy professor involved in the proceedings. Wilhelm argued that, “in the context of a fragile transition to stable democracy,” amnesty combined with “public shaming” and institutional restructuring is the right, morally correct thing to do.[7] Without amnesty, there would have been no prospect of racial reconciliation and democratic government in South Africa. In addition, many of leaders of the victims also committed transgressions, making amnesty all-around seem like the moral path to take.[8]


Why do most white Americans in 2020 have difficulty tendering a collective public apology in the wake of Black Lives Matter? Why do so many whites not understand slavery’s importance to the nation’s development as a world power, as well as its debilitating effects on African Americans?

Ike Balbus may have the answer.

Balbus offers an interesting psychological explanation. He argues that whites have an emotional interest in denying the fact that an American institution as horrific as slavery could have lingering effects in twenty-first-century America. “Arguments about what should be are rarely a match for the needs that negate them” (emphasis added), Balbus writes. The implication of this mindset on public support behind an effective government apology for slavery (an apology concretized by reparations) is clear to Balbus: “Thus, white Americans are unlikely to be moved by principled arguments in favor of reparations if they have a deep psychological stake in resisting them.”[9] There is in most white Americans a “powerful unconscious resistance” to the government’s atonement because of “[t]he ‘depressive’ anxiety and guilt that inevitably accompany the awareness that we have harmed . . . [an innocent people].” The effort to reach whites is, therefore, “a work of mourning whose importance is matched only by its difficulty” (emphasis in original).[10] Balbus and other psychologists explain that a psychoanalytic case for depressive anxiety and guilt “does not require that any given individual white has actually harmed blacks but rather only that they have . . . harbored demonizing racial [beliefs],” or in other words, “that they have thought about doing so.”[11]

If this analysis is correct, white Americans will have to cross a significant psychological barrier to reach a point of clarification regarding slavery and its lingering effects. That effort may be helped along substantially if whites were to understand that they are not guilty of instituting, operating, or condoning the peculiar institution. They were not even alive during its existence. So how could they be responsible for slavery? But while today’s whites are innocent of the charge of instituting, operating, or condoning slavery, they have, in my judgment, a responsibility to push the government to atone for slavery as well as engage in individual acts of appreciation for the incredible bounty slavery has provided for them. And as citizens, they have a civic obligation to support the creation of a virtuous society. Such a society is one in which the government atones for its most horrific atrocity and white Americans recognize that they have been unjustly enriched that atrocity. Clarifying the historical record about slavery is, in short, an essential feature of the government’s apology for slavery and a necessary condition for moving toward a virtuous American society.

The tender of an apology is no trivial matter. It is an act fraught with deep meaning and important consequences. When the perpetrator has caused injury (physical or psychological), reparations are needed to make the apology believable. Reparations also lay the foundation for repair of a broken relationship between the perpetrator and victim when they are in an ongoing relationship. It is only after these conditions have been met that one can conclude that the apology has accomplished its main purpose — reclaim the perpetrator’s moral character.

If my thinking about what the anatomy of an apology is correct, then the myriad apologies being tendered these days by individuals and institutions, including the government’s apology for slavery, are woefully inadequate. What we are witnessing is not deep remorse but something less than that; such as perpetrators who are only sorry that they got caught, those who are only apologizing for show or who are only interested in scoring political points. A serious transgression and injury require a redemptive act to make the apology more than just rhetoric. Saying “I’m sorry” is often not enough.


Roy L. Brooks is the Warren Distinguished Professor of Law at the University of San Diego School of Law.

Excerpted from “The Anatomy of an Apology,” forthcoming in Social Research Vol. 87, No. 4 (Winter 2020).


NOTES

[1] Ian Fisher, “At Site of Massacre, Polish Leader Asks Jews for Forgiveness,” New York Times, July 11, 2001, p. A1.

[2] The Comfort Women remained hidden during the early stages of their redress movement in Japan. See, e.g., George Hicks, “The Comfort Women Redress Movement,” in When Sorry Isn’t Enough: The Controversy over Apologies and Reparations for Human Injustice, Roy L. Brooks, ed. (New York: New York University Press, 1999), p. 113.

[3] Louis E. Newman, “The Quality of Mercy: On the Duty to Forgive in the Judaic Tradition,” Journal of Religious Ethics 15 (Fall 1987): 155, 155.

[4] Roger Cohen, “Wiesel Urges Germany to Ask Forgiveness,” New York Times, January 28, 2000, p. A3.

[5] See When Sorry Isn’t Enough.

[6] See Mark Gibney and Erik Roxstrom, “The Status of State Apologies,” Human Rights Quarterly 23 (2001): 911, 931.

[7] Wihelm Verwoed, “Justice After Apartheid? Reflections on the South African TRC,” in When Sorry Isn’t Enough, pp. 479, 480-482.

[8] The success of regime change in South Africa remains in doubt, however. While political power changed, economic power has not. Blacks remain at the bottom of the economic ladder in South Africa. See, e.g., Roy L. Brooks, “What Price Reconciliation?, in When Sorry Isn’t Enough, p. 443; Linda Human, “Affirmative Action as Reparation for Past Employment Discrimination in South Africa: Imperfect and Complex,” in When Sorry Isn’t Enough, p. 506.

[9] Issacs D. Balbus, The Psycho-Dynamics of Racial Reparations” (unpublished paper delivered at Conference on “Apologies: Mourning the Past and Ameliorating the Present,” Claremont Graduate University, February 7-10, 2002), p. 2.

[10] Ibid., p. 3.

[11] Ibid., p. 41 n.4 (citing works co-authored with Melanie Klein).

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