The traditional formulation of the argument for the problem of other minds proceeds like this:

Premise 1: One cannot have direct awareness of the mental states of another human.

Sub conclusion: This information must be inferential, specifically based on physical/behavioral states.

Premise 2: Because of the possibility of pretense, no such inference can ever be valid.

Conclusion: It cannot be reasonable to believe in the mental states of other human beings. (Carruthers, The Nature of Mind,2004, pg11).

If the argument for The Problem of other minds is valid, it makes the ascertaining of another’s mental state impossible. This is an issue not only in daily life but also in specific contexts. One context specifically affected is establishment of intent in the field of law. In criminal law, in order to convict someone, both what is known as mens rea and actus rea must be proven. Actus reus refers to the guilty act. The guilty act must be established in order to prove that the act that was done was illegal. Mens rea refers to the guilty mind, which is essentially proving the individual’s intent to commit the crime. The problem of other minds, if the argument above follows, makes it impossible to prove intent. This is because intent is a mental state and according to the Problem of Other Minds, mental states cannot be known.

However, the emotion known as remorse could aid with this problem. By virtue of the nature of the psychological nature of remorse, the presence of remorse expression and subsequent remorse, may be able to give us some ability to prove intent. This task will be accomplished by the examination of Wittgenstein’s writings, specifically his writings on pain and pain behavior, and psychological evidence of remorse. The examination of Wittgenstein’s writings on pain and pain behavior is helpful here for a number of reasons. The first of which is the number of similarities between pain and remorse. Both pain and remorse are expressed in behavior. Additionally, both pain and remorse are linguistically similar, in that we use the same sort of terms to describe both. This will be explained later. Additionally, both pain and remorse have bodily and cognitive elements.

The second reason that a Wittgensteinian investigation is fruitful here is because Wittgenstein, in addition to writing on pain and pain behavior, also writes about knowledge of pain based on pain behavior. From this, given the similarities between pain and remorse and Wittgenstein’s thoughts on pain, if one can identify pain based on pain behavior, one might be able to identify remorse based on remorse behavior, in a Wittgensteinian fashion. The investigation into this topic will follow by explaining what remorse is psychologically, then it will look at Wittgenstein’s thoughts on pain and pain behavior, and the application of these interpreted thoughts to this problem generated by the interplay of the problem of other minds and the requirement for the establishment of legal intent. Hopefully, the fruit of this discussion will be a better ability to ascertain whether another is remorseful based on their behavior.

The first thing to be discussed is the psychological nature of remorse. There are two distinct ways of looking at the nature of remorse, the first is the purely emotional view of remorse, which is signified by a sadness about a wrong. This criterion is necessary and sufficient for one to feel remorse, under this view. Specifically, this view allows for either regret or sadness after a wrongful act to be considered remorse (Wikidiff.com). An example will make this clearer. Let’s say that you are in the kitchen, and someone is using your milk. This person, during the use of your milk, spills your milk on the table. Evidently, all of your milk spills on the table. You view this as a wrong, as you were about to get some cereal and milk for breakfast. In light of this information about the spilled milk, you feel saddened. According to the above picture of remorse, you fulfill the conditions. You feel saddened about a wrong that has occurred. However, I feel that this view is inadequate as it does not capture how we use the word in everyday language.

The first account leaves out a crucial part of remorse in my view. The part that it misses is the cognitive component, more specifically the fault component of remorse. The second view at hand does a much better job of that. Under the second view, remorse has both an emotional component, like the first view, and a cognitive component. The emotional component is the same as in the first view, with the individual feeling sadness about a wrong that has been done. The cognitive component of remorse involves a feeling of fault about what has been done wrong, and the acknowledgement that a wrong has been committed, in at least some part, by the individual feeling the remorse. This view seems more accurate LOOK AT COMMENTS, and it applies to much more distinct cases than the first view. An example of one of these cases, looking again at spilled milk, is necessary. So, in this case, instead of someone else spilling all the milk, you spill all the milk. You wanted to eat cereal and milk, and you, being the clumsy person you are, spill all of the milk available to you. You view this spillage as a wrong, and you are sad about that wrong, as you wanted to eat cereal and milk. You also feel at fault for this wrong, as you were the one who spilled the milk. This seems more apt to describe the ways that we use the word remorse as opposed to sadness or mourning. So, remorse has both cognitive and emotional components.

This view of remorse has been expressed by a number of psychologists, including Freud (Proeve, Tudor 52). Also, in addition to the theoretical musings of Freud, and the everyday examples discussed above, empirical psychological findings that support this view also exist. The data does not indicate a direct relationship, but studies of undergraduates have demonstrated that remorse is most similar to regret, guilt and shame (Proveve,Tudor,54). Each of these emotions have a cognitive element and a bodily element. In addition, each emotion regards a past self, which is what remorse does, under this view. Remorse is cognitive in that one feels that their past self has done a wrong, so in a sense it is a combination of regret, guilt and shame.

Remorse is also not simply regret, as this view might seem to imply, because regret can be felt about things that are not wrongs. Regret can be felt about anything that one wished they hadn’t of done. It does not necessarily have a component of sadness nor does feeling regret necessarily mean that one feels that what they did was wrong. One can regret things without feeling sad about them. For instance, if I ate 12 donuts in an hour, I would regret eating them after I did so, but I wouldn’t necessarily feel sad about the act. I would simply wish that I hadn’t of done that, which is what regret is.

With the discussion of what remorse is psychologically in place, the investigation into what Wittgenstein’s thoughts on pain will now begin. As stated previously, this investigation is taking place because of the psychological similarities shared by remorse and pain. First the general discussion of whether or not we can know if someone is in pain must be discussed. One might think, at first glance, that this discussion of whether we can know whether someone is in pain rests on the assumption that the person whose pain we are questioning knows that they are in pain. Wittgenstein thinks that the knowledge that one is in pain is misplaced. In §246, Wittgenstein denies that one can know that they are in pain, however, in the same paragraph, he recognizes that others can know that I am in pain. The issue of mine own knowledge of my pain being misplaced arises when it is pointed out by Wittgenstein that I cannot doubt my own knowledge of pain. Without this crucial doubt, I cannot have certainty, as certainty of something presupposes that I can doubt that something’s truth. I cannot know that I am in pain, while others can know that I am pain, based on my behavior. Additionally, they can observe my pain behavior. Wittgenstein acknowledges this himself in the section, stating that if we are using the word know in the way that it is normally used, then we can say that people very often know that I am in pain (Wittgenstein, §246). Great, so, by virtue of being able to doubt the existence of pain, and through the examination of Wittgenstein’s own words, we know that in some instances we can know of other’s pain.

Further, in §304 we encounter a discussion of what pain is in relation to pain-behavior. In §304, Wittgenstein starts off by recognizing that there is a great difference between pain-behavior with pain and pain behavior without pain. The interlocutor accuses Wittgenstein of claiming that pain in this case is a Nothing, which essentially means that Wittgenstein is a behaviorist, and that the sensation of pain is irrelevant to linguistic discussion. Wittgenstein responds, stating that this sensation is neither a Nothing nor a Something (PI, §304). In order to adduce the meaning of Nothing and Something, this section must be analyzed in light of §293. In §293, Wittgenstein gives the famous beetle-box example. In this example, each person has something called a “beetle”. Upon examination of the contents of another’s box, people would say that they know that that particular thing is a beetle by looking at their “beetle”. In this case, it doesn’t really matter what a “beetle” is in each box, as the word “beetle” would have a use regardless. By this, the contents of the box could doesn’t even need to be a Something, as there could be nothing in the box. From this, Wittgenstein derives that if we are to construct the grammar of sensation expression on an ‘object and name’ model, the object is irrelevant (PI,293). In this sense, it is a Nothing. So, in §304, the object of the word pain is neither irrelevant to linguistic discussion nor is it relevant. Additionally, its lying in between relies on an assumption that Wittgenstein identifies in §142. He identifies that if there were not a characteristic expression of pain, our normal language games would be rendered pointless. He analogizes this to a putting a lump of cheese on a scale and fixing its price (PI, §142). This is essentially Wittgenstein acknowledging that pain can exist without pain behavior, and pain behavior without pain, but in the ordinary case, both pain and pain expression are connected in a fundamental way.

In §281, the interlocutor introduces a clarification, stating that Wittgenstein is essentially saying that there is no pain without pain behavior. Wittgenstein takes this comment and responds by saying that only of a human being, and of what behaves as a human being does, can one say that it has sensations (PI, §281). So, this gives some more credence to the statement that Wittgenstein thinks we can identify the pain of others, as pain is a sensation. So, to review, from §142, we see a fundamental relationship between pain and pain behavior, with regard to the identification of characteristic pain behavior, from §281, we get the idea that we can know sensations from human behavior, from §246 we get the idea that others can know if we are in pain, and from both §304 and §293 we get the idea that pain might be Nothing, that is, that pain behavior is the only relevant thing up for discussion. However, Wittgenstein denies this, stating that is difficult to ascertain the relevance of the object of pain behavior, as it is neither a Nothing nor a Something.

With all of this in mind, let’s transition into the discussion of remorse. In the first place, in light of §142, the discussion of remorse will be difficult without establishment of characteristic remorse expression. So, remorse is expressed in a number of ways, including crying, using words such as “sorry”, words or phrases that generally express regret, such as “Why did I do that?” and the conjunction of such phrases with others that express sadness about the action, and acknowledgement that the previous action was wrong. With all this, one has a much harder time seeing generalities in remorse expression than seeing generalities in pain expression. However, with this, I can pull a few identifying elements of remorse expression out. The first is the expression of regret, the second is the expression of guilt, and the third is expression of shame. As I explained earlier, remorse is similar to each of these emotions, and each of these emotions are expressed more plainly that remorse. With their conjunction, we can see remorse in some way.

With that, I will now move on to the playing of the language games, to further elucidate this remorse expression idea. Five games will be played here, with a focus on the first, fourth and fifth.

1: Imagine a standard criminal courtroom scene. The judge/jury has come to a decision regarding the case, and renders a verdict of guilty, this time to the crime of first degree murder. The criminal immediately upon being found guilty, expresses his deepest feelings of remorse. To do this, he exclaims to the judge, “I’m sorry!” and “They didn’t deserve to die!”, I regret what I’ve done!” The judge nods, showing his acceptance of the apology on behalf of the victim.

2: Now imagine another courtroom scene. The judge has come back from their chambers with a verdict, and they have decided that the defendant is guilty of the crime of murder. The defendant shows no form of remorse and simply allows the court to be adjourned.

3: The same courtroom scene with a different defendant. The judge renders a verdict of guilty for the crime of murder, and the defendant screams at the judge “They deserved it!” “I would do it again if I had the chance!” and “I’m proud of what I’ve done!”. The judge orders the defendant out of the courtroom by yelling “Get them out!” to the bailiff.

4: A verdict of guilty comes down, and the defendant hangs their head in shame, and expresses to the judge their feeling of regret. From this, the judge ascertains that the defendant feels remorse, and the sentencing hearing will be conducted in light of this fact. X`

5: A verdict of guilty comes down, and immediately upon hearing this verdict, the defendant hangs their head in shame, says “I’m sorry”, “They didn’t deserve it”, and “I should not have done this. The judge acknowledges this combination of expressions, and will take this information into the sentencing hearing.

In the second and third language games, it is evident that there is no remorse expressed. In the second, the individual makes no attempt to show remorse if they felt it, and they have incentive to express that remorse, and that incentive will be discussed in the next paragraph. In the third game, the individual expresses feelings that are directly counter to what one would say if they felt remorse, so that game will not be discussed. So, in the fifth game there is a clear expression of remorse. This is evident by nature of our criteria. In the first place, the defendant expresses guilt, by stating that they are sorry, and then express the wrongness of the act, and they then go on to regret the act. So, this fulfills our criteria of guilt behavior, shame behavior, and regret behavior. In no way does this definitely prove that the defendant is expressing remorse, but from the psychological studies, this seems to be the best that can be mustered.

I now turn to the discussion of different ways that varying legal systems look at remorse and from that, examine the feasibility of fake or forced remorse. The argument for a sentence reduction because of the expression of remorse is essentially that the legal system needs to see the value of respect in remorse, as it is a valuable thing to express in informal settings. This can be seen in situations such as expressing remorse to a friend that has been wronged, and by that, and by the fact that humans by nature are communicative animals, the sentence should be reduced to reflect our valuing of remorse (Proeve, Tudor, 126-129). So, from this, a defendant could conclude that it is beneficial to fake remorse. By this, the defendant could be faking remorse in order to get a sentence reduction. This is very hard to know, especially since remorse is expressed most often during sentencing, where it is beneficial to the defendant to conjure up false feelings of remorse for the purpose of sentence reduction. So, yes, the remorse could be fake.

In the fourth language game, we can ascertain that the individual in question is expressing both shame and regret. The issue here is the lack of guilt expression. However, from the shame expression, we can ascertain that the individual in question feels guilt for what has happened. This is a less clear picture of remorse, but the blurrier pictures must be discussed, as in the real world, remorse will not be as clear. The issue now, if the criteria for remorse expression are correct, is whether we can use Wittgenstein’s thoughts to see if remorse is evident or not.

From §281, we know that from human behavior we can say that a human has sensations. The question here is whether or not we can extrapolate from remorse behavior a specific cognitive element that is required for remorse. The reason that I identify the cognitive component rather than the whole of the emotion is because the cognitive component is what is expressed linguistically when discussing one’s own remorse, and also, the cognitive component is the core of the emotion of remorse. Remorse is a mainly cognitive emotion, and by identifying the cognitive portion of the emotion, we can identify the emotion, as one does not have these cognitions without this particular emotion. This identification is done through the identification of remorse behavior. This is important because we can do the same things with pain. To show this, we must see whether both pain and remorse have bodily and cognitive elements, and Wittgenstein examines this question in §286.

From §286, Wittgenstein states that it is absurd to declare that a body is feeling pain, as all pain is felt by beings. Here, he is dismantling the mind/body dualism here, by virtue of the fact that we do not draw a mind/body distinction when discussing pain. When we speak about pain, we say things like “He is in pain”, “She is in pain”, etc. We do not delineate between mind and body linguistically with regard to pain. Likewise, when discussing remorse, we say “That person is remorseful”, “He feels remorse”, etc. This shows that, as I expressed in the introduction, that pain and remorse are linguistically similar. Additionally, Wittgenstein writes that one can look into another’s eyes in order to see if they have pain (PI, §286). From these two joined to together, we can say with some confidence that we can know on some level that if an individual is expressing remorse behavior, and our criteria for remorse behavior is correct, then we can know to some extent that they are have feelings of remorse.

The question now is what we can know about intent from that. The issue specifically with identifying intent from remorse is the problem of fault. On our psychological account, the remorseful person feels for fault for their actions. However, fault does not mean intent. To illustrate this, I will create an example.

Imagine that instead of a murder case, the case is a crime of involuntary manslaughter. An example of involuntary manslaughter would be if someone (god forbid) ran over a child while backing out of their garage. They didn’t intend to do this, it was a tragic accident. They simply didn’t check their rearview mirror. In court, the defendant (The one driving the car) expresses remorse in all of the ways that we have conceived previously. They express guilt, shame and regret. This fits all out our criteria for remorse. The problem here is that the individual feels fault for what has happened, but does not feel like they intended to run the child over. The issue here lies in the breakpoint between fault and intent. The level of fault necessary for ascription of intent is ambiguous.

At some level, one might feel that if an individual feels 100% fault for an action, they intended to do that. So, let’s see how this plays out in an example. Imagine now that the court case at hand is one for a death that is resultant a drunk driving accident. The defendant in this case (The person who drove drunk) feels 100% fault for the death of the victim. It was their car that ran the person over, and they feel that if they did not drink that night, they would not have run the victim over. However, they did not intend to run this person over. So, they feel completely at fault for the events that occurred, however, they feel no intent. Alright, so the prominent difference here is that the individual in question was drunk. Now the task to find an example wherein an individual feels 100% at fault, is not under the influence, and yet they do not feel intent. Imagine another case of an individual running a child over by backing out onto them out of their garage. This time the defendant is predisposed to feeling unusually high levels of fault for things, perhaps for the reason that they were often blamed for things that were not their fault during their childhood. In light of that, the defendant feels 100% responsible for the events that transpired, and places no blame on the child. In this case, the defendant feels no intent but 100% fault.

The issue now is determining whether or not defendants are predisposed to feeling fault or not. This seems, like remorse, extremely hard to determine. It is even harder considering the various life events or experiences that can contribute to this disposition. So, honestly, in light of this complicated psychological state, and the various ways of navigating to it, it seems very hard to conclude that one has intent solely from their expression of their remorse.

References

Proeve, Michael, and Steven Tudor. Remorse: Psychological and Jurisprudential Perspectives. Ashgate, 2010.

“Sadness vs Remorse .” WikiDiff, 7 Mar. 2018, wikidiff.com/sadness/remorse.

Wittgenstein, Ludwig, et al. Philosophical Investigations. Wiley-Blackwell, 2009.