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The Language of Truth and Reconciliation: Was it fair to all concerned?

Vivian de Klerk

Abstract

Words count in law and legal language exerts a considerable influence because it is through

language that the intentions of the law giver are made clear, judgments are pronounced and

social behaviour is regulated. Using a corpus of over 455 000 words of the legal discourse

recorded and transcribed during selected Amnesty Hearings of the Truth and Reconciliation

Commission in South Africa, this paper reports on analyses of the overall characteristics of

selected lexical items during the hearings. In order to provide a benchmark for comparison

with so-called ‘‘natural’’ spoken discourse, the frequency of occurrence of these words is

compared with the occurrence of the same words in the Wellington Corpus of Spoken New

Zealand English (Holmes 1995; 1996). It is argued that overall the vocabulary of legal

English differs very significantly from that of everyday language patterns in ways that are

very likely to impede comprehension and give a particular advantage to those who use it

The problem:

A television advertisement for the New Zealand Public Trust (Feb 2001), offering citizens

legal assistance, showed the following list of words on screen:

bequeath ‘‘I give stuff to’’

attest ‘‘Stuff that’s true’’

chattels ‘‘My stuff’’

abrogate ‘‘Stuff off’’

While it gently pokes fun at the problems legal language causes for ordinary people, its

purpose is serious. It is well attested, and frequently the topic of criticism by linguists, that

traditional legal language is unnecessarily complicated and genuinely prevents non-lawyers

from understanding it. This linguistic complexity, it is argued, plays a very important role

in establishing and maintaining the power imbalance that exists between legal professionals

and lay people (Cutts 1995; Tiersma 1993; Walker 1987). Words count in law and legal

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language exerts a considerable influence because it is through language that the intentions

of the law giver are made clear, judgments are pronounced and social behaviour is

regulated. In this paper I report on a corpus-based analysis of the transcripts of over 455

000 words of the legal discourse recorded during selected Amnesty Hearings of the Truth

and Reconciliation Commission in South Africa. The aim is to focus on some aspects of

this specialist discourse, in order to demonstrate the high level of linguistic competence

required by participants, both professional and non-professional, in following the linguistic

conventions of courts of law.

Language and the Law

When people are confronted by any new type of discourse for the first time they are likely

to have difficulty at first in coping. This has been shown to be true of first-time entering

university students, and also of non-experts in the medical and business world (Stewart

Smith 1999). The problem is even more marked and serious in the case of lay people in our

law courts. The bulk of the population who are bound by the largely incomprehensible

restrictions of legal discourse, spoken or written, are not professional people. Commonly,

even highly educated people find contracts, documentation and the law difficult to

understand. But in a country like South Africa, where most people are not first language

speakers of English or Afrikaans (the languages in which almost all legal texts are written)

and are often not literate in those languages either (indeed, many are not functionally

literate at all). These people are being disempowered by the impenetrability of legal

language and denied their democratic right to understand the laws, contracts and other

documents that bind them (Chimombo & Roseberry 1998).

Ironically, while the legal system of any country should serve as a cultural leveller,

bringing justice to all, whether rich or poor, male or female etc, in reality, those who do

not know how to use the particular language forms common to legal language are gravely

disadvantaged (Carol 1994). Conversely, from their grasp of this discourse and the use of

words and phrases with particular specialised meanings, legal professionals derive power

(Drew 1985). Because such obfuscatory language prevents ordinary citizens (i.e not legal

professionals) from fully understanding proceedings and being able to participate freely in

them, they are likely to distrust it or feel confused and bewildered. In addition, lack of

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understanding of legal discourse can have far more serious consequences than simple

miscomprehension in ordinary conversation. However ignorance of the law is no excuse

for not complying with its requirements and so people must rely on professional

practitioners to assist them in the courts where legal discourse is used. Even when they do

happen to understand the law, if they have to appear in court, they generally must be

accompanied by a qualified practitioner and may not have the authority to argue the case.

In South Africa, the recent change from an authoritative style of government with

its attendant disempowerment of ordinary citizens and inaccessible legal texts, to a more

democratic government (with a focus on the rights of the individual) has renewed the call

for radical change in the language of legislation and private contracts to make them more

accessible. This has been evident in the proliferation of linguistic analysis of legal discourse

and the increasing number of demands for plain language (Stewart Smith 1999:2).

Nevertheless, little has changed in practice, despite the fact that such a power imbalance is

intrinsically undemocratic and against the spirit of the new constitution. In a country which

is already extremely complex linguistically, in having 11 official languages and insufficient

trained interpreters to supply the needs of people in our courts (Steytler 1993), the matter is

further complicated by the use of this obfuscatory language which prevents ordinary

citizens from fully understanding proceedings and being able to participate freely in them.

The spoken language of the courtroom

Law is a profession which specialises in discourse and words, and anyone with any

experience of the court system inevitably acknowledges the importance of language to the

legal process (Cunningham 1989; Danes 1980). Indeed, it is difficult to imagine a context

where verbal behaviour plays a more crucial role. At all levels, language penetrates the

legal system, and ‘‘the law perhaps more than any other is a profession of words,

ultimately and utterly dependent on some form of linguistic negotiation’’ (Harris 1994:

156). Spoken legal language has the utmost social significance, and in some cases it IS the

action, in cases where speech acts themselves may be criminal acts (e.g. slander, libel, or

perjury (Stubbs 1996: 103; Kurzon 1986)), and other speech acts uttered in court, such as a

submission of guilt, the verdict and the sentence actually create a state of affairs in the

world.

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Most of the specialist interest in earlier years (either from philosophers, lawyers or

linguists) in the language of the law was focussed on syntax and word meanings in written

documents. More recently, however, there has been a growing awareness of the importance

of the spoken language of the law, and an increase in research on spoken legal discourse

(Danes 1980, Drew 1985, Eades 1994, O’Barr 1982, Viljoen 1992). Before a case can be

decided it must be argued in court before a magistrate, a judge or a bench of judges. The

courtroom is the forum whose basic role is to decide on any issue brought before it

concerning the legality of social behaviour, either criminal or civil (Maley 1994:32).

Important spoken words come from a range of role-players in legal procedures: judge,

magistrate, defendant, plaintiff, lawyer, and any number of witnesses called to give

evidence. Listening carefully to these words (and often recording them), but not permitted

to speak themselves, are assessors or jurors, officials of the court, journalists, and

observers.

The courtroom is highly institutionalised and depends on special rules of language

use very different from ordinary conversation. Not only are there elaborate forms of

address and extreme politeness (e.g. ‘‘my learned friend’’), but talk is very strictly

regimented, with rules stipulating what must be said, what may be said, and by whom and

in what order (Maley 1994:33): when the judge arrives everyone is expected to be silent;

further talk is kept to a minimum and carried out in predesignated ways by the main

players: the judge and counsel and whoever is directed by them to speak. The situation is

essentially hierarchical, extending from the judge or magistrate at the top through the

counsel to the witness, who is commonly seen as being powerless and even degraded.

Power is exercised primarily by those who have the most right to speak, and to choose,

control and exchange topics. The judge has greatest power, and his/her rulings on

evidence and procedure are final. The elicitation of the relevant facts in the case is

achieved by counsel questioning the defendant or plaintiff and the witnesses, who are

constrained to answer questions only and not volunteer information or ask questions

themselves. Interventions have to conform to particular rules and are in sharp contrast to

interruptions which are regarded as serious (Walsh 1994). In addition, there are strict rules

which regulate questioning and what may be said as well (e.g. rules about hearsay

evidence).

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Common law oral trial proceedings are based on an adversarial system, and a

metaphor of battle is commonly used: a battle fought not with swords but with words. The

trial is aimed at resolving a dispute between two verbal accounts of reality and language

counts for everything (Atkinson & Drew 1979; Stubbs 1996: 103; Maley 1994:35; Walsh

1994). Thus speaking rights in this institutionalised context are highly restricted; some

participants are noticeable by their verbal activity, and others are almost entirely silent.

Advocates are typically the persuaders who know how to be convincing and to use words

skilfully, and clients generally have to trust that their use of specialised language really

reflects their own intentions. They control topic management, (subject always to the laws

of evidence and considerations of relevance) and their role is to manipulate the opinions of

others through highly developed language skills (Carol 1994:314) and to get witnesses to

say things the way they want them to. In the words of James (1971:181), ‘‘we rely heavily

on the words of witnesses --- often more heavily than on evidence like measured skid marks,

the extent of damage, position of cars after impact, and mathematical calculations’’ (cited

in Chimombo & Roseberry 1998:287).

The Truth and Reconciliation Commission (TRC)

The South African TRC was set up by the Government of National Unity to help deal with

what happened under apartheid. The conflict during this period resulted in violence and

human rights abuses from all sides, and no section of society escaped these abuses. The

TRC was based on the Promotion of National Unity and Reconciliation Act, No 34 of

1995, which charged the Commission with investigating and documenting gross human

rights violations committed within or outside South Africa in the period 1960-94. In doing

so, it was to compile as complete a picture as possible of these events and violations and to

reflect fairly and fully the motives and perspectives of both the alleged perpetrators of gross

human rights violations and of their victims (TRC 2002). One of its three committees, the

Amnesty Committee, had as its primary function to see that applications for amnesty were

dealt with in accordance with the provisions of the Act. Applicants could apply for amnesty

for any act, omission or offence associated with a political objective committed between 1

March 1960 to 6 December 1993 (later extended to 11 May 1994).

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The TRC hearings in which applications for amnesty were heard took place within

the South African legal framework and were based on normal legal procedure in South

Africa - an adversarial legal system, in which truth is expected to emerge from opposing

representations. The defence and prosecution standardly prepare their cases in secret and

resolving conflicting accounts depends largely on the linguistic skills of those involved on

the day in question. Witnesses and counsel attempt to present, in the language they use, an

unambiguous definition of past events. Listeners must contend with conflicting versions of

reality from many different mouths, and must rely on the language they hear to establish

the facts (O’ Barr 1982). All participants are only human, and when they hear a speech or a

presentation they cannot retain all the details1 and must therefore be susceptible to overall

impressions created by the language used.

A Corpus approach to describing legal language

Linguistics is essentially a social science and an applied science, which prefers to study

attested, authentic instances of language in use (preferably whole texts), rather than

invented, isolated sentences. Computer assisted analysis of texts provides the perfect way to

do this (Biber 1993; Biber & Finnegan.1991; Biber, Conrad & Reppen 1998). Already, by

1957, the use of machines in linguistic analysis had made its mark, and in the past decade a

new understanding of the nature and structure of language and the inseparable relations

between forms and meaning are becoming increasingly available as a result of the

examination by computer of large collections of texts (Sinclair 1991; Stubbs 1996).

Corpus studies show that language in use is characterised by spectacular regularities

of patterns with endless variation, revealing how there is system in language despite the

fuzziness of the variable instances (Stubbs 1996:34). In most genres the majority of texts

are grouped tightly around the average (with a small standard deviation), and such work

provides empirical comparisons of different genres, at the same time providing a powerful

background for the analysis of individual texts.

Given the obvious deep significance of the spoken word in court, analysis of a large

database of spoken legal language should offer some useful insights to complement those

which have come from analyses of written legal discourse (e.g. Stewart Smith 1999). Any

instance of intentional, individual language behaviour has meaning only against the

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background of an enormously large body of conventional, routine social action, and such a

computer analysis should reveal the specialised discourse conventions and patterns of

linguistic behaviour which legal practitioners subconsciously acquire and follow, marking

them as members of the legal culture. Such studies can reveal the relationship between

conscious individual speech acts and the unconscious characteristics of larger stretches of

discourse. They therefore provide empirical evidence about the relationship between

individual human agency and the long-term structure of social institutions. In addition, they

reveal the probabilistic nature of many textual patterns and show up frequency and

distribution. Much of this deep patterning is beyond human observational memory. It is

observable only indirectly, since probability is associated with lexical and grammatical

choices across long texts and corpora (Stubbs 1996:21).

Certain precautions do, however, need to be observed when evaluating corpus-based

research: in this instance, the corpus represents the language of the Amnesty hearings

specifically, and while they undoubtedly followed the conventions of day-to-day court

proceedings (Adv. I. Smuts, pers. comm.), a comparison with general courtroom

language would need to be carried out in order to build a fully representative and totally

accurate picture of typical spoken legal language. In addition, while it is possible to select

for analysis particular features which various studies have already shown to convey

important social meanings, it is impossible to look at everything. The current study is

largely lexical, and explores only limited aspects of grammatical complexity (i.e.

nominalisations) and of selected discourse conventions (i.e. politeness indicators).

Nevertheless, although a study such as this reflects a selective focus, it still provides direct

empirical evidence about the nature of these particular aspects of the discourse of the TRC

hearings.

Methodology:

This paper reports on a corpus-based analysis of the transcripts of 445 052 words of the

legal discourse recorded during the amnesty hearings of the Truth and Reconciliation

Commission. Full transcripts of all amnesty hearings, including details of all participants,

are available on the web at http://www.truth.org.za/amntrans/index.htm.Transcripts of

hearings selected for analysis2 were coded in terms of speakers, and further analyses, not

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reported here, compare the language choices of different groups of participants in the

proceedings: the English-speaking professionals, the Xhosa-speaking professionals, and the

non-professionals (accused and witnesses). This particular paper reports on analyses of the

overall characteristics of selected lexical usage during the hearings. In order to provide a

benchmark for comparison with so-called ‘‘natural’’ spoken discourse, the frequency of

occurrence of these words is compared with the occurrence of the same words in the New

Zealand component of the International Corpus of English: the Wellington Corpus of

Spoken New Zealand English (Holmes 1995; 1996), 3 a corpus of 600,000 words across a

range of different categories. For the purposes of a reliable comparison, this spoken corpus

was reduced in size to 440,000 by excluding from analysis 80 files representing those

text-types which could be regarded as formal (i.e. less ‘‘natural’’), namely parliamentary

debate, legal cross-examination, legal presentations, demonstrations and broadcast news

and talks. Altogether, the TRC corpus contains the words of 87 participants, all of whom

were South African, made up in the following proportions:

Number %

Eng/Afrik professionals 20 23

Xhosa professionals 30 35

Nonprofessionals (accused/witness) 37 43

Apart from 4 female (white) witnesses, all other participants were male. Using Wordsmith

Tools (concordancing software which is available commercially), a basic word list showing

frequencies of the whole corpus was derived, revealing which words had been used with a

high frequency, and showing full verbal contexts in the case of phrases etc. Thereafter,

three aspects of the vocabulary of the corpus were selected for analysis: legal vocabulary,

nominalisations, and politeness indicators.

1. Word Frequencies: Legal vocabulary

Twenty high-frequency words comprised 37.3% of the corpus (words such as ‘the’, ‘that’,

‘to’, ‘you’, ‘was’, ‘I’, etc.). By focussing on all other words which occurred at least five times

in the corpus, and ignoring those words which serve an obviously grammatical function it was

easy to extract from the remaining list those words which could be identified as ‘legal’

vocabulary, and to ascertain frequencies of occurrence. For this analysis, words which were

clearly morphologically and syntactically related were combined 4. All words were then

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grouped into four main semantic categories, all focussed on courtroom discourse, and the

immediate linguistic contexts of use were examined, to eliminate inappropriate uses of words,

many of which are inherently ambiguous (e.g. “action”, “record”, “matter”, “sentence”):

a. words relating to asking or telling;

b. words relating to clear and unambiguous cognition or understanding of meanings or

implications;

c. words of argumentation, reflecting the adversarial nature of the debate, relating to who

is right and who is wrong;

d. words which have a uniquely legal meaning or usage.

2. Nominalisations; Nominalisation is a syntactic phenomenon whereby a number of

processes and participants are turned into a nominal group (compare ‘‘The attacker

threatened that he would kill her, which made her become uneasy’’ with ‘‘The death threat

caused uneasiness’’). Nominalisations may be present participles (gerunds) or abstract

nouns (e.g. ‘‘departure’’; ‘‘submission’’; ‘‘explanation’’) and they are far more common in

written than in spoken language (Halliday 1994). Because they are more formal and

abstract, they increase the semantic density of a text, packing more content words into

single clauses, demoting the role of the human participants and encouraging the listener to

take certain events for granted. The use of nominalisations, while highly economical, has

the potential to distort meaning by changing the relationship between surface language

forms and underlying meaning (e.g. the deletion of the original agent can result in

ambiguity in a phrase like Ayour dismissal’’, leaving one uncertain as to who dismissed

whom). Nominalisations also increase the semantic density of the message, adding to the

cognitive burden of interlocutors.

3. Politeness indicators: Very formal terms of address, such as ‘your worship’, ‘your

honour’ or ‘my learned friend’ repeatedly acknowledge the status and role of the magistrate

or judge and are not frequently heard by ordinary citizens. Such words, by virtue of their

foreignness to non professionals, are therefore likely to carry significant ideological impact,

and to disadvantage those who are not accustomed to their use.

Results:

1. Legal Vocabulary

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a Asking and telling: The foundations on which adversarial court proceedings are

based are the conflicting versions of the opponents, in this case the accused and the state.

Naturally, in view of the fact that the court proceedings are verbal, there is a high number

of words relating to the act of requesting people to express facts or opinions, and give an

account of what happened. Table 1 summarises words in this category. When one

examines the distribution of the words, it is immediately obvious that there are significantly

higher occurrences in the TRC corpus (a rate of 25 per 1000 words of the TRC corpus

versus 11 per 1000 words of the NZ corpus). While many of the words in the table (e.g.

‘‘say’’, ‘‘tell’’, ‘‘ask’’) are not necessarily obscure or ‘difficult’, the sheer volume of words

relating to interrogation occurrence marks this discourse as distinctive, and very different

from natural discourse. In addition, certain words do seem more exclusively legal:

‘‘enquire’’; ‘‘respond’’; ‘‘confess’’; ‘‘attest’’; ‘‘aver’’; ‘‘interrogate’’; ‘‘convey’’;

‘‘interpose’’ and ‘‘elaborate’’. A small subset of words, not listed in Table 1, related to

metalinguistic aspects of the discourse, in which the language itself, or a record of it, was

being discussed. These also occurred disproportionately often in the TRC corpus:

‘‘(sub)paragraph’’ (TRC 109, NZ 1), document(ation) (TRC 134, NZ 39), ‘‘record’’ (TRC

201, NZ 68), ‘‘page’’ (TRC 311, NZ 59), ‘‘section (TRC 130, NZ 54).

Table 1: Asking and Telling

The words are listed in order of their frequency in the TRC corpus. The equivalent frequency in the New Zealand

(NZ) corpus is given alongside in each case, and marked with * when higher.

TRC NZ TRC NZ

Say 3210 2463 Tell 1454 460

Question 1067 273 Ask 773 276

State(ment) 648 158 Instruct(ion) 559 18

Report 407 99 submit / submission 380 13

Mention 327 64 Answer 268 83

Explain / -ation 216 51 Discuss(ion) 174 119

Repeat 157 17 Respond / response 154 22

Speak / speaker 151 150 Confess / confession 148 4

Version 93 15 Comment 82 88*

Deny / denial 77 10 Advise / advice 77 49

Request 71 11 Communicate 70 29

Enquire / enquiry 61 2 Admit 61 34

Describe /description 58 44 Convey 48 0

Express 42 24 Claim 37 67*

(Re)phrase 30 12 Translate 30 25

Reply 28 11 Quote 27 40*

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Interrupt 21 7 Interpose 19 0

Attest(ation) 19 0 Elaborate 18 3

Declare / -ation 18 5 Intervene 16 6

Aver(ment) 15 0 Insist 14 2

Verbal(ly) 14 9 Remind 13 14*

Interrogate /-ation 13 0 Plea(d) 11 3

b Cognition & understanding: While most of the words in Table 2 have

considerably higher frequencies in the TRC corpus, there are some very interesting and

strong exceptions: ‘‘know’’, ‘‘think’’, ‘‘mean’’ and ‘‘feel’’. These exceptions are all

everyday words, and while avoidance of terms like ‘‘feel’’ and ‘‘think’’ can partly be

explained by the need to avoid personal and subjective opinion, the lower use of these

words in this legal context also suggests an avoidance of common parlance, in favour of

other, lesser-known alternatives (e.g. ‘‘signify’’ or ‘‘recollect’’). Altogether 26 lexical

items in this category were used over 10 times, many revolving around remembering,

reporting and interpreting the underlying meaning of events or words. The generally high

frequencies of words in this category in the TRC corpus reflect the characteristic focus, in

legal debate, on the importance of a clear and unambiguous understanding of the facts of

the case. The irony, however, lies in the fact that the accused, in all probability, has very

limited understanding of the argument taking place.

Table 2: Cognition and understanding:

TRC NZ TRC NZ

Know 1991 3327* Think / thought 981 2985*

Hear / hearing 776 272 Decide / decision 587 197

(Mis)understand 461 146 Mean / meaning 291 1379*

(dis)believe / belief 277 203 Remember 273 307*

Intend / intent(ion) 242 40 (un)aware 205 39

Appear(ance) 187 40 Represent / -ation 153 109

Consider / -ation 114 47 Expect 107 87

Motivate / -ation 97 19 Realise / reality 94 101

Listen 85 64 Notice 83 82

Interpret /-ation 67 19 Forget 46 32

Impression 41 16 Perceive / perception 39 14

Reflect(ion) 28 24 Appreciate 26 15

Observe / -ation 25 25 Recollect(ion) 26 0

Recognise 18 26* Foresee(able) 16 1

Signify 10 0 Deem 8 4

Cognisance 7 7 Feel 6 264*

Notion 5 0 Conceive 4 0

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c The lexicon of argumentation:

A key activity in the courtroom is trying to argue, marshalling sets of facts together in

order to persuade and/or convince interlocutors of the merits of a particular interpretation

(see Table 3). The words in this category in the TRC corpus occur at a rate of 14 per 1000

words in the total corpus (compared with 4 per 1000 words in the NZ corpus), giving them

special prominence compared to their use in normal discourse. There are marked

discrepancies in the frequency of use of many of these words (e.g. ‘‘evident’’; ‘‘defend’’;

‘‘dispute’’). The metaphor of a battle of words is constantly evident in words such as

‘argue’, ‘dispute’, ‘object’, ‘challenge’, ‘reject’ and ‘confront’, and verbs like ‘warrant’,

‘substantiate’, ‘condone’, ‘satisfy’, ‘support’ and ‘(dis)agree’ are powerful tools in

persuading and convincing the listener. Those astute professionals who are accustomed to

using these words have access to a powerful ‘‘arsenal’’, and those who are less familiar

with high frequency words like ‘‘accord’’, or ‘‘concede’’ would probably be at a

disadvantage.

Table 3: Argumentation

TRC NZ TRC NZ

Evidence / evident 975 20 inform(ation) /-ant 667 126

Incident 657 13 Reason(able) 484 177

Defend /defence(less) 352 79 (Dis)agree 252 113

Accord / accordance 252 21 Indicate /-ation 247 32

Purpose 183 52 Therefore 172 44

Argue / argument 170 62 Accept(able) 144 59

Cause 142 47 Circumstance 138 9

Support 137 129 Necessity 133 79

Result 109 72 Objective 103 25

Detail 98 48 Dispute 82 10

Oppose /opposition 82 62 Conclude /-usion 78 24

Satisfy 81 14 Relying / reliable 59 17

Relevant / relevance 49 28 Comply 44 2

Justify / justification 42 11 Concede / concession 41 9

Consequence /-tly 40 17 Qualify 32 10

Provision(al) 30 12 Subsequent(ly) 28 4

Infer(ence) 27 2 Despite 22 18

Hence 18 2 Compel 15 1

Thus 15 1 Object(ion) 17 8

Grounds 12 5 Reject 13 8

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Persuade 13 5 Transpire 11 0

Entail 11 2 Applicable 9 2

Imply / implicit 9 5 Challenge 9 23*

Furthermore 8 1 Notwithstanding 8 0

Never(none)theless 11 11 Bearing 7 1

Inherent /inherently 7 1 Substantiate/-ally 7 1

Emphasise 6 21 Condone 5 1

Confront 5 8 Preclude 5 0

Contest 5 3 Duly 5 0

Adduced 4 0 Warrant 4 0

Deduce 4 1

d Legal Words: In addition to many of the words in the other categories, which could

in many ways be seen as ‘legal’, the corpus contained a large group of words (9806 in the

TRC corpus versus 1162 in the NZ corpus) which could be characterised as the jargon (or

specialised vocabulary) of the courtroom, words which typically relate to legal proceedings

(e.g. ‘‘witness’’, ‘‘application’’, ‘‘record’’, ‘‘sentence’’, ‘‘conviction’’ etc.). Table 4

contains those specialist words which occurred with relatively high frequency. There is

also a high incidence of polysyllabic and formal vocabulary (e.g. ‘‘endeavour’’ instead of

‘‘try’’), and words used with unique connotations (Stubbs 1996:101). For example,

‘‘papers’’, ‘‘sentence’’, ‘‘bundle’’, ‘‘matter’’, ‘‘action’’ and ‘‘finding’’ are all used very

differently in the TRC corpus to the way they are used in the NZ corpus. As a particular

case in point, ‘‘defence’’ was used 24 times in the TRC corpus, each time with a legal

interpretation and 38 times in the NZ corpus, each time in relation to rugby!). Many of

these words are obscure, if not opaque, to the non-expert, and have a consequential

obfuscatory effect, while at the same time no doubt reinforcing the powerful sense of

‘‘specialists’’ at work.

An important group of those words listed in Table 4 relate to the fact that much, if

not all, courtroom discourse revolves around ascertaining the reliability or truth of the

evidence which is placed before the participants. Claims and counterclaims are made, and

the primary purpose, ultimately, is to ensure that justice is done, and that guilt and

innocence are proven. The words which question, either subtly or overtly, the veracity of

words, memories, reports and proceedings are varied and extensive. Some of the less direct

insinuations of dubious reliability can be found in words such as ‘speculate’, ‘allege’,

‘presume’, ‘apparent’, ‘purportedly’, and ‘ostensibly’, which gently suggest alternatives.

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Such words are undoubtedly very powerful tools in the hands of talented and experienced

legal practitioners. While many of the words listed are not intrinsically difficult words (e.g.

‘‘identify’’, ‘‘illegal’’, ‘‘examine’’, ‘‘release’’ and ‘‘establish’’), the comparison of

frequency underlines the fact that they are formal, and probably not encountered very

often in normal discourse.

Table 4: Legal Words

TRC NZ TRC NZ

Apply / Application 1523 63 (In)correct /-ion 1196 38

Matter 557 16 Amnesty 390 0

Case 246 160 Witness 239 6

Testify /-mony 228 0 Action 216 55

Commission(er) 200 56 With Regard to /-ing 168 7

Offend / Offence 163 5 Offence 163 2

Arrest 160 2 Incriminate/ crime 151 18

Identify /-cation 149 59 Judge(ment)/-iciously 147 54

Affidavit 139 0 Investigate /-ation 126 8

Associat(ion) 123 17 (Dis)charge 114 80

Disclose /-ure 108 2 Grant 107 17

Sentence 106 19 Adjourn(ment) 105 0

(Il)legal / illegal 103 35 Prison(ers) 103 9

Client 102 21 Allege / allegation 98 7

Bundle 97 0 Examine /-ation 88 18

Deploy(ment) 87 4 Possess(ion) 85 25

Convict(ion) 78 4 Clarify /-ity /-ication 78 14

Persons 77 1 Establish 75 40

Thereafter 75 1 Authorise(-ation) 74 5

Release 64 9 Suspend / Suspension 60 3

Accused 61 12 Attorney 56 17

Conduct 54 15 Advocate 50 9

Consult(ation) 50 19 Finding 49 17

Panel 48 11 Prosecute (tion) 45 5

(Under) signed 45 9 Residing 43 0

Magistrate 42 0 Reconciliation 40 3

Furtherance /-ing 39 1 Implicate /-ation 39 13

Contrary 36 2 Subjectivity /-ively 36 0

Exhibit 36 1 Postpone 36 0

Rule /Ruling 36 7 Omission 30 0

Former 29 9 (Re)convene 28 0

Counsel 27 3 Thereof 27 0

Withdraw 26 4 Criteria 26 9

Ascertain(able) 26 2 Oath 24 0

Swear /-orn 24 1 Contradict /-ion 24 3

Brief(ing) 24 0 Acquire 23 9

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Inspect(or) 22 1 Commence(ment) 21 1

Deputy 21 7 Speculate /-ation 21 0

Approximate(ly) 20 6 Whatsoever 20 7

Credible / -ity 20 8 Pursue 19 6

Custody 19 5 Notify / notification 19 0

Permit / permission 19 8 Affiliation 18 4

Whereabouts 18 7 Opponent 16 7

Surveil(lance) 16 0 Subpoena 16 0

Pertain(ing) 16 1 Prejudice /-icial 15 3

(Il)legitimate 15 5 Administer 15 5

Constitute 14 0 Autonomy /-ous 13 6

Deed 13 0 Sole(ly) 12 3

Respective 11 4 Inasmuch 10 0

Ambit 10 0 Elsewhere 10 6

2. Nominalisations: altogether 6856 words in the TRC corpus were complex

nominalisations, compared with 1005 in the NZ corpus (see Appendix 1). Because these

lexical items are typically polysyllabic, abstract words, which disrupt the usual word order

of agent-process-affected, they do not aid comprehension, and they greatly increase the

level of authority (and power) of the speaker. While they are highly economical, they have

the potential to distort meaning by changing the relationship between surface language

forms and underlying meaning. Indeed, these marked forms occur often in legal language

because they allow precision and they can conceal certain meanings. In effect they act like a

form of the passive and exclude the agent, thereby increasing the level of authority. The

advantage of using nominalisations is that they focus on processes and emphasise behaviour

which is permitted or not, while providing scope for interpretation because qualification is

abstract. The high frequency of these items is not surprising, but is nonetheless disturbing,

in light of the intended inclusive nature of the TRC hearings. Admittedly, some of these

words are so regularly used as to be readily accessible to most speakers (e.g

‘‘imprisonment’’ or ‘‘absence’’), but others of these words are not so accessible, and many

of them (e.g. ‘‘furtherance’’, ‘‘proportionality’’, ‘‘indulgence’’, and ‘‘cognisance’’) are

very low frequency words in day-to-day discourse. Comparisons with the NZ corpus show

that these words do indeed have a typically low frequency in day-to-day discourse, so their

meanings would be obscure to most people, including mother tongue speakers. As signs of

a high register, such polysyllabic words are a product of learning and specialist knowledge

and serve to establish one=s credentials as a legal practitioner.

16

3. Politeness indicators

Words which show respectful politeness or submission (see Table 5 below) occurred with a

very much higher frequency in the TRC corpus than the NZ corpus. Part of the reason for

this is the standard formalised procedures in a courtroom, which require interlocutors to use

certain terms of address, directly linked to their role in the court, but such words of respect

tend to oil the wheels of persuasion very successfully. A brief analysis of the use of these

words by professional and non-professional revealed that 80% of all such terms were used

by the professionals. It is likely that they draw on these conventional terms with calculated

effect: few people can resist obedient deference, and ironically, in this case, words which

appear powerless at face value have a deep and subtly powerful effect on listeners. The

high frequency of ‘‘mister’’ and ‘‘chairman’’ relative to ‘‘sir’’ and other words such as

‘‘learned friend’’ also suggests a slightly different set of discourse rules from ordinary court

proceedings, but this would have to be tested against a full corpus.

Table 5: Indicators of Politeness

TRC NZ TRC NZ

Mister 4,525 67 Thank 1,022 88

Chair(man/person) 650 13 Sir 377 0

Sorry 301 128 Please(s) 277 38

Honour(able) 145 1 Colleague 109 11

Excuse 45 26 Humble / humbly 38 1

Learned friend 36 0 Apologise 36 5

your/my Lord(ship) 36 0 Forgive (Ness) 31 3

Pardon 28 12 Beg 27 5

Permission 21 2 Respect(ful) / ed 19 0

(your) Worship 12 0 Kindly 9 3

Obliged 8 0 Apology 6 3

Conclusions

The analysis of legal vocabulary presented above makes it clear that overall the vocabulary

of legal English differs very significantly from that of everyday language patterns (as

represented by the New Zealand spoken corpus) in ways that are very likely to impede

comprehension and give particular advantage to those who use it (Stubbs 1996; Stewart

Smith 1999:127). When people who are not trained in the legal profession encounter

powerful and complex language of this sort, in which words are unfamiliar and obscure,

and discourse procedures are somewhat foreign or strange, these people are at a linguistic

17

disadvantage, vulnerable to the power of skilled legal practitioners. Lawyers are trained to

use and understand this legal discourse and possibly their communication is actually made

more efficient by doing to. But they also have an obligation to communicate with ordinary

citizens, who also have the right to understand what is being said during trials in which

they are involved. Perpetuating this style of language denies them the right to understand

the law. These barriers are not restricted to children and people from other cultures who

lack English language skills (cf. Eades 1994). There are many people whose first language

is English but who still have great difficulty in understanding what goes on in legal

proceedings in which they are involved and in making themselves understood in courtrooms

‘‘The most obvious feature of legal discourse is its production within specific,

highly restricted, institutional settings’’ (Goodrich 1984:187), and it functions in a

particular way in order to create a systematically organised set of statements which give

expression to the meanings and values of the legal system, and to define and describe what

it is possible to say and not possible to say (and by extension, what is possible to do or not

to do). This paper has attempted to show that although the TRC tried to be different, the

Amnesty hearings still drew heavily on legal discourse. The analysis reveals a

preponderance of words and phrases that require specialist knowledge and have the

potential to result in unfair manipulation, persuasion and ultimately injustice. Unequal

proficiency in the art of using such legal discourse leaves certain people in the courtroom

very vulnerable to linguistic discrimination of a very subtle kind. Because only qualified

professional people are entitled to produce and interpret this discourse and only the legal

profession has authority to mediate the effect of legal texts on society, this has tended to

create a diglossic relationship with the standard dialect of everyday usage (Stewart Smith

1999:10).

The features of legal discourse amount to a genre with specific forms and meanings

derived from and encoding the intentions in meanings of social institutions and occasions.

This genre is restrictive, in the sense that those who use it must constantly observe the

dictates of the preordained formula if their discourse is to be seen as valid, and generative,

in the sense that using it has the potential to produce more of the same genre.

The discourses of law are integral to a particular kind of legal system and legal

culture and any reforming of legal discourse must take into account the contingency

18

between language change and legal and institutional change. Reform of the discoursal

procedures of the courtroom also raises questions of structural reform, since discoursal

patterns and traditions of advocacy are derived from the adversarial system and the rules of

evidence. It is therefore important to identify those aspects of legal language which are not

critical to the institutional structural practices and which are therefore open to reform.

Nevertheless, those who genuinely believe in change are likely to support changes in legal

language to make it more accessible to the people, and the time is ripe to make this happen.

Today, sets of meanings that maintain oppression are under contest and in flux

within the changing political context (Levitt et al. 1997:5). South African society is in

transition and the issue of legal language has general significance to researchers concerned

with the way in which language reproduces culture and power (Hoffman 1993; Prinsloo et

al. 1993). For the critical social scientist, attentive to issues of power and to the conflicts

and contradictions of subjectivity (e.g. Fairclough 1992; Fowler et al. ; Gee 1990; Hodge et

al. 1993), daily life is shot through with constant sharp reminders of past and continuing

unequal access to resources, and this is particularly evident in courts of law. The crucial

question with regard to courtroom language is ‘‘Is it fair to all concerned?’’

Endnotes

1. Many research studies on lectures have shown that listeners retain only a small amount

of material presented during lectures and that attention typically fluctuates during the

lecture.

2. Transcripts selected for analysis were those that took place in the Eastern Cape on

the following dates:

13-24 April 1998 (East London)

5-9 October &14 October 1998 (East London)

18-22 January (Port Elizabeth)

23-31 March 1999 (East London)

26-29 July 1999 (Port Elizabeth)

1-3 November 1999 (East London)

3-4 February 2000 (East London)

27-28 March 2000 (Umtata)

3. The reasons for the choice of the Wellington corpus are the lack of a readily available

spoken corpus of South African English, and the obvious link between two “colonial”

varieties of English.

19

4. For example, for “understand”, all forms of the verb ((mis)understand(s),

(mis)understood; (mis)understanding), related nouns ((mis)understanding(s)),

adjectives (understandable) and adverbs (understandably) were tallied together. This is

allied to Coxhead’s ‘‘word families’’ (2000:217).

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Appendix 1: Nominalisations

TRC NZ TRC NZ TRC NZ

evidence 987 19 application 565 36 operation 534 29

information 476 105 organisation 401 58 decision 315 71

submission 288 6 situation 251 138 position 231 94

commission 201 47 offence 154 2 confession 135 0

intention 127 12 argument 122 36 possession 92 21

violence 85 1 requirement 83 17 security 78 27

examination 67 8 liberation 60 0 proportionality57 0

assistance 54 23 intelligence 53 2 authority 51 13

adjournment 44 0 reconnaissance44 0 impression 41 16

explanation 41 3 motivation 40 7 retaliation 43 2

assassination 42 0 investigation 39 5 relation 38 10

presence 38 7 involvement 37 5 interpretation 37 3

allegation 37 3 consequence 33 15 possibility 33 11

indication 31 10 opposition 30 13 arrangement 30 3

reconciliation 26 3 capacity 25 13 infiltration 25 0

location 25 2 negotiation 24 5 accordance 24 0

furtherance 22 1 vicinity 22 0 consideration 22 3

clarity 20 3 identity 20 5 absence 18 5

proposition 17 1 independence 17 6 existence 16 6

probability 16 5 oppression 15 0 resistance 15 5

alliance 15 5 credibility 14 7 disturbance 13 1

gravity 12 0 culpability 11 0 destination 11 0

justification 11 0 participation 11 4 publicity 11 5

postponement 10 0 indulgence 10 0 reparation 10 0

violation 10 1 promotion 9 2 cessation 9 0

racialism 9 0 discretion 9 2 urgency 9 3

imprisonment 8 0 unity 8 3 contention 8 0

deployment 7 0 hostility 7 2 necessity 7 3

clarification 7 2 declaration 7 1 speculation 7 0

confusion 7 0 cognisance 7 0 confirmation 6 1

confrontation 6 0 detention 6 2 surveillance 6 0

identification 6 7 indictment 6 1 admissibility 6 0

estimation 5 0 quotation 5 3 contingency 5 1

commitment 5 6 supplement 5 2 proximity 5 0

veracity 5 0