Benjamin Bestgen: Apologies



Benjamin Bestgen

Sorry seems to be the hardest word, which is why the law has gotten involved in recent years. Benjamin Bestgen reflects on an early injustice and the value of apologies. See last week’s jurisprudential primer here.

I recall an episode in primary school in which another kid teased and pestered me and a friend during recess on the playground. I can’t recall what it was about exactly or how old we all were (seven or eight) but it involved him stealing some of our things and throwing little pebbles at us for his own amusement. It was clearly annoying enough that at some point I lost my sunny disposition. My conflict resolution abilities were unsophisticated but effective: I punched and kicked the little %$§&* until he ran, wailing, bruised and in tears, to the teacher, who was at the other end of the playground chatting with a colleague, having not seen anything. Serves him right, I thought and considered the matter closed.

Not so the teacher. She was vexed that her chat had been interrupted and insisted I apologise to the boy, who had lied that I had attacked him for no reason. My friend and I told the story as it happened but the teacher was in no mood to listen. She said she didn’t care, fighting was not allowed and if there was a problem, I should’ve complained to the teacher. She continued to demand harshly that I apologise.

For the ethics and laws of the playground (which often resemble adult life in many disturbing ways), there are problems here:

  • First, nobody likes a tattletale. Snitches get stitches. You don’t rat to teacher if you can sort things yourself. There are no whistleblower protections in school – indeed, the ones adults have work poorly enough. 
  • Second, proportionality had been preserved. I didn’t overreact and was therefore not wrong: the other kid started the trouble, stole our belongings and threw pebbles, which hurt and can inflict serious injury. My retaliation left him bruised and tearful but he was perfectly able to wail, run and lie – he (thankfully) inflicted no lasting damage on us, I didn’t do that to him. 
  • Third, the teacher didn’t listen to us or addressed that the other kid not only started the confrontation but also lied about what happened. She made it clear she didn’t care about actually dispensing justice. This was a kangaroo court with a hostile judge. 

The unfairness was impossible to stomach. I refused to apologise. The teacher threatened a letter to my parents for fighting in the playground and disobeying a teacher. I didn’t budge, though angry, upset tears ran down my face now. My point remained that I had nothing to apologise for and wasn’t sorry – the other kid had been wrong in this instance 100 per cent. No contributory guilt on my part.

The letter was written and my mom, I remember, sighed (this wasn’t my first rodeo). But after conducting her own investigation, she sided with me on this one (by no means a given – she was not one of those parents who think their precious child can do no wrong). 

Her reasoning was that:

  • while fighting is undesirable and my temperament needed work, the teacher was wrong to demand an apology from the child who had defended himself and his friend and ignore the actual offender entirely. 
  • if I had uttered an insincere apology under coercion, what was that worth? Did the teacher wish to instil moral backbone and a confident character in her charges or drive the point home that bowing to the unjustified whims of an authority figure and a disingenuous, fake apology is all that’s required to satisfy society’s demands? 
  • by failing to be objective and fair, the teacher risked giving an example that offenders get away with their deeds if they just look sufficiently pathetic, create drama and keep lying. It also damages children’s trust that adults in positions of authority could handle contentious matters appropriately. Indeed, many adults don’t trust each other in that regard… where might that come from?!

The value of an apology

An apology is one of the most direct ways to address a wrong and start the reconciliation process. Philosophers Linda Radzik and Colleen Murphy note that an effective apology:

  • addresses the wronged group or person directly (where possible);
  • acknowledges the fact that a wrong occurred and the responsibility of the wrong-doer; and
  • expresses sincere remorse, regret and maybe even indicates a positive change in attitude and future behaviour by the wrong-doer.

Insincere, forced, vague, guarded or incomplete apologies usually fail to achieve reconciliation and add further fuel to the underlying conflict. 

In many countries lawyers caution clients against apologising, particularly if the client’s position is that legally they have done nothing wrong. An apology could too easily be construed as an admission of liability: if you have done nothing wrong, why would you apologise?

This ignores that people, despite not being legally responsible, sometimes feel sincere sympathy or moral responsibility for another’s plight and wish to express how sorry they are that another person became the victim of a wrongful act, misfortune or accident. It also ignores that the injured party might find it helpful to simply have their hurt acknowledged. Receiving an apology can help them move on.

Indeed, lawyers and mediators find that in many cases, an apology is a crucial part of what the victim wants as a means of redress, often more important than purely monetary compensation.

Scotland enacted the Apologies (S) Act 2016 to address and manage the risk of incurring liability by apologising. Other countries like Canada, Australia, New Zealand or Hong Kong have similar laws, some differentiating between a partial apology (expressing regret and saying sorry) and a full apology (includes an admission of responsibility).

As lawyers we should remain mindful that, questions of liability aside, a sincere apology can be a way of calming the waters and navigating the way towards resolution. 

Likewise, don’t pressure your children into saying sorry if they have nothing to apologise for. Alternatively, help them to understand that maybe there is something they could reflect on. If the teacher had listened, judged fairly and acknowledged that I was the victim in this case, she could have calmly and separately inspired me to consider that beating up the offender still wasn’t a great way to conduct myself. Who knows… with a more judicial temperament and communication skills, she might have taught me a more positive lesson than the one she unwittingly instilled.

Benjamin Bestgen is a solicitor and notary public (qualified in Scotland). He also holds a Master of Arts degree in philosophy and tutored in practical philosophy and jurisprudence at the Goethe Universität Frankfurt am Main and the University of Edinburgh.



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