Legal Realism and Transitional Justice from an Historical Perspective

Abstract

Accepted legal doctrine dictates that full disclosure of the crimes committed by an amnesty applicant before South Africa’s Truth and Reconciliation Commission was the only factor for the Commission to consider when deciding whether to grant that individual amnesty. In other words, full disclosure was required for the granting of amnesty, but expressions of remorse or apology were not. South African law expressly limited the granting of amnesty to such situations, and international law supported this limitation. However, legal realism provides an alternative perspective, with its notion that decision makers naturally are subject to their own opinions and biases, regardless of what the law might require. An electronically searchable dataset of all amnesty applicants’ publicly accessible amnesty hearing transcripts has allowed this project to apply methodological rigor to the analysis of Commission decisions like never before. This thesis explores specifically whether there is a correlation between the frequency of remorse per word of an amnesty applicant’s testimony and the granting of amnesty in the South African context. Linear regression analysis of this population did not reveal a statistically significant relationship between frequency of remorse and the granting of amnesty. However, an Analysis of Variance (ANOVA) test showed that amnesty applicants who expressed “more” remorse during their testimony in the amnesty hearings absolutely had a higher chance of receiving amnesty. The results from the ANOVA test are enough of a finding to reject the accepted legal doctrine and to start revising the history of the Commission to emphasize the role of remorse in that narrative. Moreover, the results set future researchers down a path that emphasizes legal realism and empiricism with this and other transitional justice mechanisms.