Apology: Apologies in Civil Liability

"A stiff apology is a second insult..

The injured party does not want to be compensated because he has been wronged; he wants to be healed because he has been hurt."

G. K. Chesterton

In a recent article published in Migalhas de Proteção de Dados, I had the opportunity to address the polysemy of civil liability in common law. There is a term that classically fits the legal meaning of liability perfectly. This is “liability,” that is, the condemnatory effect of a judgment resulting from the establishment of a causal link between conduct and harm, supplemented by other elements depending on the specific basis for attribution, taking into account the particularities of each jurisdiction. Liability is the visible part of the iceberg, manifesting itself ex post—after the damage has occurred—and embodying the principle of full compensation.

However, this is only one of the meanings of “responsibility.” Alongside it are three other terms: “responsibility,” “accountability,” and “answerability.” All three can be directly translated into our language as “responsibility,” but in fact they differ from the exclusive meaning that civil law jurisdictions attribute to “liability.” What they have in common is that all three terms transcend the judicial function of remedying harm, adding new layers to responsibility that are capable of addressing the complexity and speed of social arrangements. We believe it is important to emphasize the meaning of each of the terms used in the English language in order to broaden our understanding of responsibility. Words often serve as frameworks for understanding meaning, and the polysemy of “responsibility” helps us escape the monopoly of the compensatory function of civil liability, as if it were limited to the payment of a sum of money capable of restoring the injured party to their pre-damage situation. Liability is not the epicenter of civil liability, but merely its outer layer. In truth, it is merely a last resort for what is expected of civil liability in the 21st century, particularly in the protection of personal data.

In particular, we are interested in the meaning of “responsibility”—that is, the moral sense of responsibility, voluntarily accepted and never legally imposed. It is a forward-looking concept of responsibility, in which it becomes an instrument for self-governance and the shaping of life. There are no official rules governing “responsibility,” nor is there any authority capable of deciding whether a course of conduct is responsible or not; it is a daily decision left to each individual as part of their duty not to unduly interfere in the sphere of others. Responsibility takes on a preventive character that operates ex ante to the principle of neminem laedere. While liability is rooted in the past—always tied to a compensatory function for damages—responsibility is enduring, spanning the past, present, and future. We will always be responsible, not only to a specific claimant, but to all of humanity and to future generations.¹

Although, in principle, liability and responsibility diverge, belonging to distinct normative systems, they naturally cannot be completely separated, since every legal system is founded on ethical principles, and there is a reciprocal influence between them. For example, even in the face of actual harm, rather than relying on the state’s official response regarding the obligation to compensate, the wrongdoer may seek some form of redress that more closely approximates restitution in kind, particularly in cases of non-pecuniary damages that cannot truly be remedied by money. In other words, responsibility can also operate ex post, guiding how the wrongdoer should behave after the harm has occurred.

And this brings us to our central question: Can the moral notion of an apology serve as a guideline for lawmakers on how civil liability legislation can be ethically shaped and structured? The role of apologies in the context of civil liability remains unclear. The starting point is lawmakers’ belief that apologies can reduce litigation, based on a purported common-sense notion that this is what victims truly desire, thereby reinforcing the idea of personal responsibility, because apologies are a way for the wrongdoer to take responsibility for their actions. In other words, beyond “responsibility,” the expression “taking responsibility” is used when the agent acts to restore the victim to the state they would have been in had the event not occurred.²

The relationship between the legal and moral concepts of responsibility has always been a subject of debate. A strict legal positivist would argue that there is no necessary relationship. Conversely, others argue that there is a strong correlation between them.³ In between are those who acknowledge that, although there may not be a strict correlation between the legal and moral notions of responsibility, if there is no correlation at all, the law will likely lose its legitimacy within a given community. Along these lines, we address the issue of apologies in the realm of private relations,⁴ an integral part of everyday social life which, despite its plurality of meanings across the most diverse social groups, invariably interacts with the law in some way.⁵

The best way to integrate apologies into the framework of civil liability is through Aristotelian corrective justice,⁶ since the connection between law and morality is at its core, since, in the transactional nature of the relationship between the agent and the victim, a specific obligation arises on the part of the party causing the harm to correct or remedy it in some way. In fact, this is the core of private law, grounded in the bipolar structure of its relationships and in the ideas of corrective justice, so widely promoted in common law jurisdictions by the legal philosopher Ernest Weinrib, with a clear epistemic meaning.⁷ Fault plays a significant role due to its connection to personal liability, and its acknowledgment through an apology is crucial to the aspect of relational balance—which, ideally, cannot be restored through money alone, but rather through dignity. In other words, an apology can serve as a mechanism for mitigating damages regarding the non-economic portion of the judgment; after all, non-pecuniary damages can be better remedied through apologies than through a monetary award.

Thus, corrective justice is based on the assumption that individuals possess property and existential rights that are inviolable against the acts of others, and that any disruption of this balance creates injustice by establishing an illegitimate and unjustifiable inequality. The value of corrective justice is realized to the extent that the previously existing balance and equality are reestablished, whether through a voluntary act by the parties (such as an apology) or through a judicial decision, at which point it becomes clear that the victim’s violated right corresponds to a duty violated by the offender—a duty that corresponds to the victim’s right—which is why corrective justice confronts a two-sided injustice at the heart of a bilateral and relational dynamic.⁸

To establish appropriate premises, to which “apology” are we referring as the object of civil liability? From a moral standpoint, a genuine apology necessarily includes an acknowledgment of guilt. There is no apology unless the person expresses remorse and also assumes responsibility for a wrongful act they have committed. This is responsibility. Furthermore, a person apologizes for unlawful conduct, not for the harm caused; for while the harm is a concern for the victim, the moral question addressed by the apology is whether a wrongful act occurred. Therefore, it is a “full apology” and not a mere expression of regret (partial apology)—the famous “I’m sorry.” In the context of civil liability, “partial” apologies are also called “safe apologies” because they are apologies without an admission of fault, which do not give rise to the risk of civil liability.⁹

When it comes to a full apology, a genuine process is set in motion that begins with the event; there is a “call” in which the apologies are followed by forgiveness and reconciliation.¹⁰ An insincere apology can trigger further aggression; after all, the credibility of an apology is judged in terms of the “cost” to the person apologizing, and if this cost is insufficient, the apology will be rejected. Forgiveness will not be granted in return, and there will be no reconciliation. Consequently, apologies are important moral instruments—“morally rich acts”—that serve to reinforce norms within a community and to restore balance between the two parties. Apologies can redress the victim’s humiliation, alleviate the offender’s shame, and help heal the emotional wounds associated with a wrongdoing. Offenders need to reestablish themselves as moral beings within the community and in relation to the victim; thus, the apology serves as a moral transformation for the offender.¹¹

However, assuming that the apology was followed by the victim’s forgiveness, what would be its significance in the context of civil liability? Does forgiveness mean that the victim assumes the entire burden of the wrongful act to the point of waiving the possibility of compensation by deciding not to litigate? The issue is not that simple. In fact, there is a strong argument that one of the main motivations for people to sue is the desire to ensure that the person who made the mistake knows they did wrong and is taking responsibility for it, so that they do not do it again. In principle, an apology can be a decisive factor in the decision not to sue. However, there is a range of factors that influence this decision, including costs and benefits and the likelihood of compensation, combined with a cultural attitude toward guilt. In fact, out of sheer pragmatism, the victim may choose to reach a settlement with the offender, thereby avoiding legal costs and the delays inherent in the process, or—even after accepting the apology—proceed with a claim for damages. In other words, it is possible that even a person who feels quite at peace with an offender may feel compelled to sue them out of financial necessity.¹²

Empirically, a series of experimental studies found that respondents were much more inclined to accept a settlement offer when a full apology was offered, to a lesser extent when a partial apology was offered, and much less so when no apology was offered at all. The report also noted that respondents viewed the offender as the more moral, more forgivable, and more likely to be careful in the future when trust was restored through a full apology rather than a partial one. A partial apology appeared to create uncertainty among participants regarding whether to accept the offer. There was also evidence that, when an injury was severe, a partial apology could even be prejudicial.¹³

Studies in the medical context tend to support these conclusions. The private relationship between doctor and patient remains a significant factor in how apologies are used. In this sector—shaped by medical norms rooted in the professional tradition of self-regulation and the asymmetry of the doctor-patient relationship—the culture of denial is exacerbated by traditional legal advice not to apologize, as if it were an “admission” of liability (including the fear that an insurance contract might be terminated for violating a clause prohibiting admission of liability). Another obstacle to apologizing is the disclosure of the negligent conduct and its impact on the professional’s reputation and clientele. However, evidence suggests that there may be a significant reduction in the victim’s propensity to sue and an increase in their willingness to settle the matter early when there is an open disclosure of an apology accompanied by an admission of fault. Apologies are expressed in clear terms, acknowledging that something wrong has happened and that measures will be taken to prevent future occurrences, along with an expression of sincere regret.¹⁴

Currently, there are rules regarding apologies in some common law jurisdictions, notably British Columbia’s Apology Act 2006.¹⁵ The two main functions of these special rules are to protect apologies (however defined) from being considered admissions of liability or from being admitted as evidence of an admission of liability. When the legislature decides that moral norms should assume the status of legal norms by creating a new set of rules, it effectively “confines” the moral norm. This raises the question of how regulations regarding apologies might impact the moral system from which they originate.

From a theoretical perspective, on one side are the autopoietic theories of Luhmann¹⁶ and Teubner, and on the other, Habermas, who views systems as interpenetrating and is concerned with the extent to which the law “colonizes” other parts of the “lifeworld.”¹⁷ For Luhmann, the legal system is closed because it operates on the binary of “legal” or “illegal.” However, the legal system is “cognitively open,” allowing a moral notion to become legal, sometimes while retaining its original meaning (as in the case of apologies). In his Theory of Communicative Action, Habermas emphasizes that the colonization of the lifeworld depends precisely on how juridification operates. For him, issues related to morality are “legal institutions,” making it possible to convert socially integrated contexts into the realm of law, which causes functional disturbances, since juridification disrupts the internal logic of the lifeworld—and this is where the moral community’s view of apologies comes into play.

The central issue is whether bringing the apology into the legal domain—and thereby placing it under legal protection—confers upon apologies a meaning distinct from what they had when they were merely part of a community’s moral subsystem, where they primarily serve to maintain civility. After all, the common legal advice that the wrongdoer should not apologize stems from the understanding that an apology carries a legal meaning—that of an admission of liability—which it likely never had. It is necessary to investigate whether the interaction between moral norms and legal norms is capable of fostering a cultural space in which negotiating a dispute can be better for all parties, or whether the interaction between them creates something that alters the legal world in a dangerous way.

In our view, Habermas’s view that the law juridifies the lifeworld—or can colonize it—seems entirely justified in the context of adapting an apology to meet legal requirements. If the apology is altered in its substantive effect by being normatively internalized, it will not function as it does in the lifeworld. A person who apologizes does so regardless of the legal consequences, even knowing that this may not influence the offended party’s willingness to accept full compensation for damages. In a categorical, complete, and moral apology, the individual takes responsibility, even knowing that liability may ultimately remain. However, when full apologies are protected by law and their consequences are regulated—alongside the legitimate attempt to incorporate the civilizing and moral influence of the process of apology and reconciliation into the legal process— it is possible that part of the moral impact of such an apology may be undermined, notably because many will simply attempt to corrupt the moral meaning of the apology by procedurally resorting to the so-called “strategic apology.”¹⁸

And what is the current state of Brazilian law? As Cicero Dantas Bisneto aptly noted in an article published in Migalhas de Responsabilidade Civil,¹⁹. It is evident that national case law tends to view non-monetary forms of redress for moral damages on a case-by-case basis, depending on specific legislative provisions, rather than establishing natural redress as a general rule of the civil liability system. This approach is based, therefore, on the false premise that specific forms of redress—other than monetary compensation—would be subject to the requirement of explicit statutory authorization, without which it would not be possible to employ non-pecuniary measures to restore existential legal rights.

We are betting on optimism. Regardless of whether we consider an apology to be “legal” or “moral,” we believe that legal systems that encourage virtuous behavior—such as a full apology—will be truly effective in reducing harm. As Maria Cândida do Amaral Kroetz clearly demonstrated in a collective work published by IBERC,²⁰ compared to other dispute resolution methods, mediation has proven to be an ideal forum in Brazilian law for the formulation of an apology, because the principles of confidentiality and self-determination that govern the process allow for forgiveness and reconciliation, restoring the balance of power between victim and offender.

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1. WINIGER, Bénédict. Responsibility, Restoration and fault. Cambridge, Intersentia, 2018, p. 139: "In general, on might say thar rules of responsibility are applicable to every human action: prior to acting in order to decide what someone may and should do, during the action in relation to how and in which manner something is to be done, and after the action in relation to how behave towards the victim".
2. "If restoration is not complete, it would be more appropriate to say he did not take his responsibility or did so only in part. If he attempted in vain to accomplish full indemnification, one could say, for example, that he took his responsibility 'as far as possible'". WINIGER, Bénédict. Responsibility, Restoration and fault. Cambridge, Intersentia, 2018, p. 77.
3. Peter Cane views civil liability as “a set of rules and principles of personal responsibility” that serves to stabilize acceptable behavior. The Anatomy of Tort Law, Hart Publishing, Oxford, 1997, p. 15.
4. Since civil liability, as a general rule, does not address the intentional element of the wrongdoer (Art. 944, Civil Code), in the sense that the agent need only fail to meet the standard of care expected of a reasonable person, dealing with apologies in civil law is not as straightforward as in criminal law, which presupposes that the offender acted in a legally and morally wrongful manner—a situation that falls within the realm of restorative justice, where an apology can be highly significant.
5. Emanuel Levinas considers apologies to be an essential part of ethical responsibility and “the archetypal act of human freedom, including the freedom to alter one’s own identity over time.” In Totalidade e Infinito, Edições70, São Paulo, 2016.
6. While corrective justice pertains to a specific relationship between two formally equal persons—the Greeks called this bond synallagma—distributive justice employs a different framework, applying to the relationship between an individual and society as a whole. More specifically, corrective justice requires that in a relationship between equal parties (correlative relationships), in what Aristotle calls “involuntary transactions,” the harm be compensated by the magistrate, with the gains of the wrongdoer or the losses of the victim being nullified, thereby correcting a prior injustice. ARISTÓTELES. Ética a Nicômaco, p. 105.
7. WEINRIB, Ernest J. The idea of private law. Como um purista radical Weinrib concede à justiça corretiva o monopólio da fundamentação normativa da responsabilidade civil, mediante a exclusão de elementos distributivos.
8. BONNA, Alexandre. Indenização punitiva e responsabilidade objetiva no Brasil - Teoria de Jules Coleman, p. 98.
9. VINES, Prue. The power of apology: Mercy, Forgiveness or corrective justice in the civil liability arena?
10. TAVUCHIS, Nicholas. Mea Culpa: a sociology of apology and reconciliation, Stanford University Press, Stanford, 1991, p 39.
11. SMITH, Nick, 'The Categorical Apology' (2005) 36(4) Journal of Social Philosophy 473 at 473.
12. VINES, Prue. The power of apology: Mercy, Forgiveness or corrective justice in the civil liability arena?
13. ROBBENOLT, J K, 'Apologies and Legal Settlement: an empirical examination' (2003) 102 Michigan Law Review 460.
14. WEY Marilynn 'Doctors, Apologies, and the Law: an Analysis and Critique of Apology Laws (2007) Journal of Health Law, disponibilizado em SSRN.
15. (1) an apology made by or on behalf of a person in connection with any matter (a) does not constitute an express or implied admission of fault or liability by the person in connection with that matter, (b) does not constitute a confirmation of a cause of action in relation to that matter for the purposes of section 5 of the Limitation Act, (c) does not, despite any wording to the contrary in any contract of insurance and despite any other enactment, void, impair or otherwise affect any insurance coverage that is available, or that would, but for the apology, be available to the person in connection with that matter, and (d) must not be taken into account in any determination of fault or liability in connection with that matter.
16. Luhmann views this in terms of both domains (moral and legal) maintaining their own integrity, reworking everything “irritating” that appears within them. Thus, for an apology to be a protected apology, it must fall within the legislative definition of an apology, with all other apologies becoming irrelevant. Apologies will have a legal function distinct from their moral function. It will approximate this moral function, but the legal system itself transforms it into a creature of its own, as Luhmann suggests. The fact that this seems to distort the moral regime of apologies ultimately does not matter to the legal system, which is interested only in its own universe. "All of this leads Luhmann to conclude that the legitimation of a system’s actions must be the product of the system itself and not come from outside. It cannot be consensus or conformity with moral values that legitimizes a legal or political decision, a scientific theory, etc. It is the normal functioning of the internal mechanisms of each of these systems that brings about the necessary social recognition for their actions." ANTONIO, García Amado Juan. La filosofía del derecho de Habernas y Luhmann. Universidad Externado.
17. HABERMAS, Jürgen. Direito e democracia - entre facticidade e validade. Vol. I. Rio de Janeiro, Edições tempo brasileiro, 1997, p. 145. The author demonstrates the fallacy of viewing aspects of legality as limitations on morality, opting instead for a relationship of complementarity. The establishment of legal norms is necessary to compensate for the shortcomings of traditional ethics, which is responsible only for equitable judgments. A morality dependent on personality structures would be limited in its effectiveness if it could not be institutionalized by a legal system that complements the morality of reason, thereby granting effectiveness to action.
18. TAFT, Lee. Apology Subverted: the commodification of apology' (2000) 109 Yale Law Journal 1135 at 1156. Com efeito, considerar o pedido de desculpas insincero ou estratégico pode ser esclarecedor. O que acontece quando alguém pede desculpas simplesmente porque pensa que o pedido de desculpas irá impedir que seja processado ou pelo menos mitigar a indenização? Mesmo desculpas forçadas são consideradas de algum valor moral.
19. DANTAS BISNETO, Cicero. Reparação não pecuniária de danos extrapatrimoniais e covid-19. Publicado em 9.7.2020, no Migalhas.
20. AMARAL KROETZ, Maria Cândida do. Adianta pedir desculpas? Reflexões sobre a reparação dos danos morais. In, RUZYK, Carlos Eduardo Pianovski; ROSENVALD, Nelson (coord). Novas fronteiras da responsabilidade civil/ Indaitauba, Foco, 2020, p. 104.