Linguistic barriers on trial: ‘Epistemic (in)justice’ as a tool for safeguarding access to justice and procedural rights in the courtroom

Abstract

From calls for the equal treatment of languages to making justice more accessible, linguistic barriers to the right of access to justice persist in South Africa. Not only is English the only official language of court record, but it is also the dominant language in which legal information is available in South Africa. Even with interpretation services in court proceedings, forensic linguists have highlighted the inherent shortcomings of translation and how these impact the right of access to justice. This raises the question of whether the South African legal landscape can offer insight on linguistic obstacles to the right of access to justice. This article endorses the affirmative, arguing that linguistic barriers to the right of access to justice provide fertile ground for litigants to suffer injustice of a special kind: what the philosopher Miranda Fricker calls “epistemic injustice”. In epistemic injustice, a speaker is unable to articulate experiences not recognised in a society’s dominant conceptual pool. Epistemic injustice proves to be an important concept for the field of law in that it clarifies socio-linguistic aspects of the court experience in a way that objective law cannot do on its own. The concept therefore offers a jurisprudential basis upon which to better understand and respond to linguistic barriers in the court process. In effect, this contribution aims to not just confront linguistic barriers to access to justice; it also seeks to elevate the status of ‘epistemic injustice’ in South African legal discourse.