1.1 Historical Abuses of Church and State
Western states and Christian churches and organisations have marginalised, shamed, and harmed women, men, children, and entire peoples and nations, despite seeking to serve the least among them. These societies and Christian churches today claim to address this impact of widespread and systemic pain and suffering on victim-survivors and their descendants and on the legitimacy of societies and churches. This book argues that these states, churches, and religious organisations must repent, acknowledge, and materially address their roles in these historical abuses. If not, states and churches cannot credibly claim the authority to lead their citizens and congregations and, worse, the structure of these abuses will continue to be replicated and repeated, including in the very measures designed to address the past.
In this book, ‘historical abuses’ mean non-recent violence and human rights violations that occurred decades or generations before the time at which there were (additional) efforts to promote the national legal and political recognition of their wrongdoing. Although historical abuses are evident across all social contexts, this book argues that Western societies and churches co-created a violent Christian nationalism through their constructions of civilisation, empire, patriarchy, and the control of individual bodies and the social order. Across various states and churches, historical abuses include the genocide of Indigenous peoples; killing, violence against, and lynching of African Americans; the rape and sexual assault of women and children in institutions and beyond; the arbitrary detention, slavery, and forced, unpaid labour of African Americans; Indigenous peoples in the United States, Canada, and Australia and women in Magdalene Laundries and maternity homes; the theft and expropriation of Indigenous land; the forced medical experimentation and procedures on vulnerable adults and children; and the forcible removal of children from families, including illegal adoptions.Footnote 1
This book believes that a distinctive response is warranted to address the widespread and systemic harms understood as historical abuses. Several national investigations have confirmed that child sexual abuse and non-sexual forms of historical abuse, such as physical abuse, neglect, emotional abuse, and forced family separation, occurred against large numbers of individuals and were ‘widespread’, ‘endemic’, or ‘systematic’.Footnote 2 Investigations of the global Catholic Church at United Nations human rights treaty body mechanisms confirm the widespread and systemic nature of child sexual abuse in that institution.Footnote 3 The nature of historical institutional abuse, involving entire classes of peoples, in the case of Indigenous peoples and African Americans, and particularly the marginalisation of women, especially women who became pregnant outside marriage, of the poor, and of children, are suggestive of a widespread and systematic practice, that constitutes a ‘gross violation of human rights’.Footnote 4
From the twentieth century until present, through the tireless efforts of victim-survivors,Footnote 5 of communities, and social movements, states and churches have been forced to address their responsibility for historical abuses across a range of jurisdictions.Footnote 6 This book will examine historical abuses in the United Kingdom, Australia, Canada, the United States, Ireland, and the Holy See, the legal representation of the Roman Catholic Church. In each setting, similar responses to historical abuses have emerged, including the establishment of inquiries; litigation to hold individuals, non-state actors, and states accountable; reparation schemes and apologies on behalf of states and churches; and reconciliation discourses and processes.
This book argues that to adequately address historical abuses, the modern responses of Western states and Christian churches need to not only draw from the ideas, legal rules, and practices of transitional justice but also practise a new justice paradigm that addresses historical-structural injustice and, in particular, the dimensions of power and of emotions in responding to this longer form of injustice. A failure to expand the imagination and practices of what is necessary to respond to historical abuses may result in the very mechanisms of transitional justice being used to consolidate the power of states and churches and cause fresh and additional harm to victim-survivors.
This book is among the first to address these historical abuses from the perspective of transitional justice.Footnote 7 Transitional justice is defined by the United Nations as
the full range of processes and mechanisms associated with a society’s attempts to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation. These may include both judicial and non-judicial mechanisms, with differing levels of international involvement (or none at all) and individual prosecutions, reparations, truth-seeking, institutional reform, vetting and dismissals, or a combination thereof.Footnote 8
This book has four central claims regarding historical abuses and the potential for a transitional justice response from states and churches. First, perpetration of historical abuses forms part of a consistent and inter-generational pattern of violence in the name of Christian nations that continues to be reproduced in the present. Both church and state were interested in the construction of the ‘ideal’ human, enforced with norms of civilisation, shame, and control, with highly racialised, patriarchal, and class dimensions, and violent consequences for those who did not conform to the ideal. Over time, the use of power, law, and Christianity shifted from explicitly imperial in nature to a focus on the institutionalisation of the vulnerable. In increasingly secular or post-Christian societies, efforts to address individuals and groups that are perceived as social problems may have broadened the ideological justification for intervention in individual, family, and community lives, but the structure remains one of marginalising and ‘othering’ those perceived as non-ideal from society. This history poses the question of how transitional justice can address abusive enterprises and structures pursued and endorsed by a religious and moral belief in the goodness of churches and nations.
Second, this book demonstrates that both Christian churches and states in responding to historical abuse in modern times, despite extensive time, energy, and resources, have largely sought to retain and consolidate power and avoid the challenges to the foundational myths and narratives of nation states and Christian churches provoked by addressing historical abuses. In this way, the responses of states and churches constitute ‘unrepentant justice’, where the states and churches refuse to accept that their claims to legitimate state and religious authority, which formed the basis on which historical abuses have taken place and continue to be reproduced in the present, were wrong and are fundamentally incapable of being legitimated. Instead, states and churches frame their responses to historical abuses primarily as a matter of political benevolence. The book argues Western states and Christian churches must relinquish claims to absolute authority and instead attempt to build an alternative legitimacy in societies through new national myths, structures, and practices. These include explicit legal and political recognition of the fallibility and wrongdoing of states and churches and involve the empowerment of individuals and groups subjected to historical abuses at individual, structural, epistemic, and ontological levels.
Third, in applying the principles and frameworks of transitional justice to Western democracies and Christian churches, the book argues that its mechanisms of investigations, accountability, reparations, and apology are wholly necessary but also inherently inadequate to the task of addressing gross violations of human rights in any context. As presently designed and practised, such mechanisms may serve the needs of victim-survivors on an episodic basis. However, to adequately address inter-generational and systemic harms, states and churches must increase their acknowledgement of and directly address structural injustices that pervade modern societies and reproduce harms and attitudes that gave rise to such historical abuses. States and churches must end their attempts to maintain and reinforce their claims to power, legitimacy, and authority and instead pursue guarantees of non-repetition of harm that effectively empower victim-survivors and marginalised communities. Fundamentally, this approach must make real the slogan ‘nothing for us without us’.
Finally, there is a necessarily tragic quality to addressing historical abuses that occurred decades or generations ago. Even if every wish of victim-survivors were met, justice cannot undo the harms done to those who have died nor to those who live and endure the suffering they have experienced and witnessed. The hunger to resolve and overcome pain is inevitable, universal, and impossible to satisfy. The transformation of power relationships and structures is not easy, inevitable, or quick, and this inherent inadequacy must inform any new conception or approach to justice. An appropriate justice response incarnates inter-generational commitments to remember and transform the meaning and material impact of historical abuses and includes a haunting sense of inadequacy, rather than justice as triumphalism.
Section 1.2 of this chapter outlines the existing and related conceptions of justice that may inform a response to historical abuses and positions transitional justice as the dominant but flawed approach to addressing the violent aspects of the past. Section 1.3 considers the application of these justice approaches to the context of historical abuses of Western states and Christian churches. Section 1.4 previews the remaining chapters of the book.
1.2 Dimensions of Justice
How societies deal with the violent aspects of their past is a perennial problem.Footnote 9 At present, multiple conceptions and practices of justice inform responses to past violence, involving assessing individual, institutional, and social responsibility. This section assesses whether and how restorative justice, transitional justice, and transformative justice should operate to guide Western societies and churches in how to respond to their legacies of historical abuses. Restoration, transition, and transformation are different conceptions of social change that can accompany justice measures, each distinctive from mainstream legal justice in Western societies and churches. To offer an adequate response to the enormity of the nature and scale of historical abuses, it is necessary to draw from each conception.
1.2.1 Restorative Justice
Restorative justice can be understood as a set of diverse processes where ‘all parties with a stake in a particular offence come together to resolve collectively how to deal with the aftermath of the offence and its implications for the future’.Footnote 10 Restorative justice emphasises crime primarily as a breakdown of private relationships between the victim, the offender, and the community.Footnote 11 The use of restorative justice to address criminality and prior wrongdoing gathers continued support and academic interest as an alternative to traditional punitive and carceral approaches to justice and aligns with alternative responses to crime from secular, Christian, and Indigenous perspectives.Footnote 12
Restorative justice literature has begun to address historical abuses, such as institutional care of children, and in doing so, overlaps with transitional justice discourse.Footnote 13 However, the use of restorative justice in cases of sexual violence and other serious harms remains controversial and challenging.Footnote 14 Some argue that restorative justice may downplay violence against women or re-victimise or endanger victim-survivors.Footnote 15 In addition, restorative justice theory sometimes emphasises the Christian roots and spiritual dimensions of the practices, which may be problematic in cases where historical abuse was perpetrated by church institutions.Footnote 16 Julie Stubbs suggests the need for caution in applying restorative justice practices in Indigenous communities.Footnote 17 In addition, restorative justice, if focused on victim–perpetrator relations alone, struggles to conceptualise a response where the state perpetrates or condones this violence.Footnote 18 As a result, restorative justice principles and practices may only form a particular component of an overall justice response to widespread or systemic historical abuses.Footnote 19 While the practices of restorative justice may offer victim-survivors therapeutic value in specific contexts, in the absence of addressing the broader systemic issues arising from historical abuses, restorative justice alone seems an inadequate response.
1.2.2 Transitional Justice
Since its emergence in the late 1980s and early 1990s, transitional justice has addressed how societies reckon with a legacy of gross violations of human rights,Footnote 20 principally in the contexts of post-conflict and post-authoritarian societies. In contrast to restorative justice, its primary focus is on system-wide justice responses. As a body of scholarship and practice, transitional justice covers several discrete elements: truth seeking, accountability, reparation, institutional reform, or guarantees of non-repetition and reconciliation.Footnote 21 These elements of transitional justice have claimed to operate with two dimensions: (1) responding to the violation of human rights of victim-survivors, drawing on restorative justice principles, and (2) contributing to or facilitating a ‘transition’ from widespread violence to democratic rule.Footnote 22 As a result, transitional justice operates on claims based on principled beliefs about what is the just response to past violence and on causal beliefs about how justice measures contribute to social change.Footnote 23 The early practice of transitional justice employed a thin conception of ‘transition’, focused on legal-institutional forms of politics at an elite level, rather than broader social transformation.Footnote 24 Influential early scholarship from Guillermo O’Donnell and Phillipe Schmitter reflected a belief in the causal power of elite decisions in transforming abusive state security actors and reinstalling democratic norms,Footnote 25 and narrowed ‘perceptions of what justice entailed, or could become, during a time of transition’.Footnote 26 This preference for a narrow, legal-institutional approach to transition has proven largely inadequate for the task. In 2002, Thomas Carothers noted that the transition paradigm was not capturing reality in countries with the potential for democratic transition.Footnote 27 He concluded that it was no longer appropriate to assume that ‘a country’s chances for successfully democratizing depend primarily on the political intentions and actions of its political elites without significant influence from underlying economic, social, and institutional conditions and legacies’.Footnote 28
Nonetheless, while the practice of transitional justice expanded to address post-conflict states, such as Rwanda, the idea of how justice mechanisms contribute to ‘transition’, now from armed conflict to peaceful democracy, remained under-theorised and unresponsive to this expansion.Footnote 29 Pablo de Greiff recently noted the contextual features in post-authoritarian countries, such as a functioning set of legal institutions, economic capacity to provide large-scale reparations, and a narrow and asymmetrical set of human rights violations, are absent in post-conflict situations.Footnote 30 Despite these challenges in both post-authoritarian and post-conflict societies, transitional justice has grown significantly since the 1980s and has become a dominant paradigm of international law, policy, and practice for addressing widespread or systemic human rights violations. Transitional justice forms part of the policy of the United Nations, the European Union, and a range of states in their foreign policy goals.Footnote 31 It is the framework employed in jurisdictions across the world, as not only a top-down and elite-driven form of policy making but also through bottom-up and victim-survivor-driven initiatives. As will be examined in its specific elements in subsequent chapters, transitional justice is at once a potential vehicle for elite-driven pacts framed as justice and human rights measures, and a potential means of social change and emancipation for victim-survivors.
In this context, there has been an expansion of transitional justice scholarship and practice to address widespread human rights abuses outside of its paradigms of armed conflict or post-authoritarian rule.Footnote 32 Arthur notes that it remains unclear whether the standard transitional justice measures, designed with the specific limitations of post-authoritarian societies in mind, would add value to addressing historical injustices in mature societies.Footnote 33 In contrast, Posner and Vermeule suggest that while transitional justice operates typically in post-conflict and post-authoritarian states, these are not exceptional circumstances, but instead should be understood as operating along a continuum to include questions of legal change in settled, peaceful consolidated democracies.Footnote 34 On their account, transitional justice does not present ‘a distinct set of moral and jurisprudential dilemmas’. There is a considerable and growing practice of inquiries and truth commissions; accountability in criminal, civil, and canonical trials, and in international human rights law; redress and reparation programmes; and apologies and reconciliation addressing historical abuses in these contexts. Historical abuses have been addressed through a transitional justice literature in the context of Canada, Australia, and Ireland.Footnote 35 Scholarship addressing historical abuses in the United States is growing in employing transitional justice to address historical racial injustices.Footnote 36 While there may be potential for transitional justice to inform responses to historical abuses of states and churches, it is necessary to address below (i) the nature of transition involved in addressing historical abuses in Western democracies and Christian churches and (ii) how the mechanisms of transitional justice may contribute to this transition.
1.2.3 Transformative Justice
A third trend in justice literature and practice is growing discontent with transitional justice. For instance, transitional justice can be criticised as not engaging questions of socio-economic rights or socio-economic causes of violence meaningfully, thus replicating the privileging of civil and political rights in mainstream human rights discourse.Footnote 37 A related concern is that transitional justice is not meaningfully empirically evaluated to assess how successfully it achieves its stated goals.Footnote 38 Some critiques examine the risk that transitional justice practice typically disadvantages and de-prioritises women in the provision of testimony, accountability, and prosecution strategies, and in access to effective remedies and redress.Footnote 39 Others critique transitional justice as offering only a ‘top-down’ account of addressing the past, that minimises or ignores grassroots or ‘bottom-up’ participatory approaches that substantially privilege the views of victim-survivors.Footnote 40 As transitional justice has grown in popularity and prominence, it has been criticised as being indifferent to context, formulaic, and technocratic.Footnote 41 Further critiques challenge the value of the transitional justice paradigm and enterprise as a whole. Catherine Turner has asserted the inherently inadequate nature of transitional justice, if pursued through legal institutions alone, to overcome political conflicts and warns strongly that transitional justice may perpetuate division and create new sites of exclusionFootnote 42 and harm to victim-survivors. Balint et al highlight the conceptual constraints present in transitional justice that inhibit its ability to address structural harms, especially for historical, inter-generational injustice.Footnote 43 Transformative justice has built on these critiques to suggest fundamental reform of the goals and methods of transitional justice or alternatively a parallel practice and discourse, or most radically a replacement of transitional justice with a transformative justice framework. Simon Robins and Paul Gready define the concept of transformative justice ‘as transformative change that emphasizes local agency and resources, the prioritization of process rather than preconceived outcomes and the challenging of unequal and intersecting power relationships and structures of exclusion at both the local and the global level’.Footnote 44 Although these criticisms are warranted, transformative justice remains largely critical rather than constructive in nature and without a substantial body of practice to date.
However, the expansion of transitional justice to transformative justice has been recently challenged as improbable or unfeasible.Footnote 45 Some authors suggest that while transitional justice mechanisms may contribute to social transformation, they are unable to restructure the future or achieve transformation on their own.Footnote 46 Pádraig McAuliffe argues transformative justice advocates fail to account for any political conditions that inhibit transformation and, instead, reflect ‘great optimism that the social world within states can be changed – the main barriers to justice exist not in context, state capacity or the efficacy of transitional justice’s mechanisms, but at the cognitive or ideational level’.Footnote 47 A transformative approach to justice may have broader ambitions of social change than securing or building the legitimacy of Western societies or churches. It may also make claims regarding an appropriate process to give meaning to transitional justice’s claims to be bottom-up and victim-survivor centred. Nonetheless, it must address the political and social obstacles to transformation to offer a feasible account of justice as transformation, especially in the novel context of Western societies and churches. If the ambitious goals of transitional justice have been deemed to fail, in what context would the more ambitious goals of transformative justice succeed? Each of these dimensions of justice is deeply related and has the potential to add value to a justice response to historical abuses. Each in turn has limits and flaws and would be in new territory in its application to historical abuses by churches and Western states.
1.3 Transitional Justice in Western Democracies and Christian Churches
Restoration, transition, and transformation offer different conceptions of social change that accompany justice measures. Both restorative justice and transitional justice espouse similar values, such as truth, accountability, reparation, and reconciliation, and criticise exclusively retributive and adversarial justice approaches.Footnote 48 Both seek to pursue processes involving the acknowledgement of wrongdoing and need for reparation by the perpetrator.Footnote 49 Both can be understood as evaluative concepts, requiring consistent clarification of the meaning of the concept and judgements as to whether a given practice constitutes effective justice.Footnote 50 Similarly, restorative and transformative justice may be understood as distinctive, or entirely overlapping, with perhaps the more profitable views suggesting that they operate along a spectrum and that restorative justice practices may have a transformative dimension, where they affect broader conflicts, communities, and social structures.Footnote 51 Transitional justice and transformative justice have a variety of potential relationships. Transformative justice may seek to reform or replace transitional justice concepts and practices. However, in the absence of momentum regarding such replacement, it may be best positioned ‘at the radical end of a transitional justice continuum’ and remain in need of a constructive dimension.Footnote 52
It remains necessary to address what is the ‘restoration’, ‘transition’, or ‘transformation’ involved in addressing historical abuses of Western societies and Christian churches. ‘Restoration’ as a return to some prior state of right relationship may be inappropriate and inapplicable in the context of historical abuses. The colonisation and genocide of Indigenous peoples, the enslavement of African Americans, and the institutionalisation of women and children, all depended upon an initial view of these groups as ‘other’, which is an inadequate basis on which to restore just relationships. Christopher Cunneen suggests, ‘One of the great dangers is that restorative justice may simply dissolve into a process of maintaining neo-colonial relations’.Footnote 53 Kathleen Daly notes that when discussing responses to sexual violence, restorative justice scholars and advocates often focus on an individual context of violence, which may overlook other contexts of violence, such as when individuals abuse positions of power, or when sexual victimisation occurs in closed institutions or communities.Footnote 54 To address these concerns, any feasible approach to restoration must address the need to reject the lie of otherness as inferiority and do so in both individual and structural terms.
How is it possible to think about transitional justice within Western liberal democracies and churches? Social change from conflict or dictatorship to a peaceful liberal democracy is the primary understanding of transition within transitional justice. In Ruti Teitel’s account, state transition remains the key distinguishing feature between ‘ordinary’ and transitional justice.Footnote 55 Instead of a required feature of transitional justice, it may be profitable to consider that paradigms of armed conflict or dictatorships are not the only sites in which widespread or systemic violence or significant social change can take place and may be situated within a spectrum of social transition. A single paradigm of transitional justice ‘ignores the problem that human rights abuses may continue to take place in circumstances where, in theory at least, the norms of liberal democratic accountability prevail’.Footnote 56 Limiting transitional justice to societies emerging from conflict or authoritarian rule ‘implies a moral differentiation’ where poor countries are seen as having endemic human rights problems while rich Western countries ‘are implied to be free of such mess and only have a need to come to terms with practices that took place in a relatively distant past’.Footnote 57
In Colleen Murphy’s account, the circumstances of transitional justice, in which it makes sense to address questions of transitional justice goals and institutions, continue to operate along a spectrum between transitional and more stable democracies.Footnote 58 For Murphy, there are four existence conditions which when present warrant consideration of transitional justice – pervasive structural inequality, normalised collective and political wrongdoing, conditions of serious existential uncertainty, and contested authority.Footnote 59 In Murphy’s account, the assertion that democracies such as the United States and Canada exhibit her four existence conditions for the circumstances of transitional justice challenges the legitimacy of the democratic institutions and structures in those states and requires evidence that there is widespread systemic and profound injustice, which suggest they do not warrant the label ‘democratic’.Footnote 60 As a result, the challenge in applying transitional justice to historical abuse in Western democracies and churches concerns establishing whether there are sufficiently unjust existence conditions to warrant consideration of questions of transitional justice, reflecting a harm-centric ‘justice model’.Footnote 61 To what extent do the historical abuses and their consequences in Western states and churches challenge their legitimacy? This book argues that the nature and extent of historical abuses and their present-day reproduction present fundamental challenges to such legitimacy.
In the case of settler democracies, such as the United States, Australia, and Canada, Stephen Winter argues that while a ‘settler polity already occupies the ‘idealized endpoint’ of transitional justice’,Footnote 62 transitional politics are forms of politics in which agents seek fundamental changes to basic governing norms,Footnote 63 and, in doing so, may pose a potentially existential threat to settler societies.Footnote 64 To apply to settler democracies, both Augustine Park and Esme Murdock have argued that transitional justice must be radicalised to make a meaningful contribution to decolonisation, rather than affirm existing settler democratic orders.Footnote 65
The original violence of settler democracies in conquest and colonisation does not exhaust the contexts where sufficient structural injustice exists. Anne-Marie McAlinden suggests the ‘regime change’ that has been thrown up by Irish inquiries into institutional abuse of children is a ‘defining moment in Irish political and legal history’ because it ‘offers a unique opportunity to make a permanent break with the past’ from an ‘amorphous or undefined’ relationship to one of greater state control of church authority.Footnote 66 Similar arguments could be made regarding historical abuse in the United Kingdom or other states where the state delegated care of vulnerable individuals or groups to church control or implementation. As the United Kingdom faces attempts from survivors of atrocities during the British Empire for inquiries, accountability, and redress, transitional justice could apply to post-imperial and post-colonial contexts.
Finally, the transition involved may also concern the nature and structure of religion in Western states more generally. The conditions giving rise to historical abuse, through the limited governance and oversight in Christian institutions, have been exported by Christian organisations from one country to another, as discussed later. For instance, the challenge caused by the abuse scandals to the Catholic Church’s legitimacy and credibility across the Global North is immense.Footnote 67 The crisis may thus require the church to undergo a radical transformation of its governance and theology to the extent that they are relevant causes of historical abuse. As a result, the transition involved in historical abuse could be understood as an evaluative tool to assess the re-imagining and resetting of relationships between Christian churches and state institutions and the re-founding of the provision of state care to vulnerable individuals and groups.
These plural and related understandings of transition reflect McAuliffe’s critique that ‘the inherently imprecise term “transition” has proven susceptible to extreme conceptual stretching, encompassing any transformation in social, economic or political life’.Footnote 68 McAuliffe bemoans such an approach to transitional justice as a ‘hopelessly capacious norm’. This book does not share this hopelessness. Rather than be a cause for despair, this book recognises the distinctive potential, political symbolism, and tactics involved in addressing the past in Western democracies and Christian churches as a ‘transition’, rather than the application of ‘business as usual’ standards to existing administrative and justice processes (inquiries, trials, redress, apologies).
The task in responding to historical abuses may be profound: to restore a truth that there are no ‘others’ whom it is legitimate to control, denigrate, or destroy; to transition from a society built on national and religious myths of redemptive violence to one that incorporates acknowledgement of individual, social, and institutional responsibility for wrongdoing; and to transform processes from those that assume expertise and elite-led mechanisms are the primary ways to achieve social change and embrace a transformation where the nature and quality of change and progress are the transformation itself.
1.4 Outline of the Book
1.4.1 Part I Understanding Justice for Historical Abuses
In Part I, the problem of historical abuses and the need for a distinctive justice response are examined. Chapter 2 addresses early Christian justifications for organised violence and demonstrates the inherent risk of links between religion, politics, and violence. It then examines early justifications for colonisation, where conceptions of non-Christian inferiority justified expansion and transatlantic slavery. In that context, the chapter assesses the emergence of closed institutions run by church and state actors as a key development in how social orders responded to those individuals and groups that were deemed a problem, based on religious and secular motivations. The chapter concludes by documenting the available evidence and estimates of historical abuses available for harms that can today be recognised, if controversially, as gross violations of human rights.
Chapter 3 argues that historical abuses concern longer-term historical violence but also resulted in structural injustice: broader patterns that result in everyday injustices and wider forms of discrimination and marginalisation against historically targeted social categories, conceived of as ‘historical-structural injustice’.Footnote 69 The chapter argues to address historical-structural injustices involves responding not only to past harms experienced across generations and within lived memory but also to the ways in which these harms are reproduced in the present. The chapter hypothesises that two factors inhibit states and churches from addressing historical-structural injustices – a desire to maintain and consolidate power and the role of public emotions, particularly shame. These factors enable states and churches to maintain existing national and religious myths that avoid a fundamental challenge to state and church authority and legitimacy.
Chapter 4 considers power as essential to understanding who is legally liable and who is socially and politically responsible for addressing historical-structural injustices. The chapter outlines competing conceptions of power, preferring and applying political scientist Mark Haugaard’s four-dimensional conception of power to address the complexities of historical-structural injustices, namely power as agency, structure, epistemic, and ontological. The chapter then examines the role of national and religious myths as justification narratives that maintain existing distributions and structures of power and construct limitations in addressing the past in transitional justice. As a result, it argues that changes in the distribution of power are central to addressing historical-structural injustices, which have coalesced to form national and religious myths that support the existing distributions of power and modern national and religious identities.
Chapter 5 argues that emotions are a mechanism by which victim-survivors may exercise agency and provide the symbolic and public means by which the states and churches themselves seek to respond in kind in addressing their legacies of gross violations of human rights, through the construction and practice of symbolic public-facing emotions.Footnote 70 In doing so, the chapter argues that political and religious leaders and official practices can perform emotions as symbolic representations of their communities and can subject victim-survivors to engagements that affirm and acknowledge their emotional states and needs or engagements that deny and dismiss these positions and emotions. This chapter argues that emotions are deeply enmeshed with the four dimensions of power and in particular that shame remains a key and problematic emotion in the modern responses from states and churches to historical abuse and greatly impacts the lived experiences of victim-survivors and their descendants today.
1.4.2 Part II Assessing Transitional Justice for Historical Abuses of Church and State
Part II of the book applies this framework of historical-structural injustices comparatively. This book will examine Ireland, the United Kingdom, Australia, Canada, and the United States, while also examining the global role of the Holy See, the legal representation of the Roman Catholic Church, diocese and religious orders, and other Christian denominations, within the jurisdictions mentioned. These jurisdictions were chosen for the following reasons:
(i) Complex multi-actor histories of abuses involving states, churches, and national societies;
(ii) Shared common law heritage and British imperial background;
(iii) Shared and differentiated experience with settlement, colonisation, and postcolonial contexts;
(iv) Shared history and experience of institutionalisation;
(v) Varied experiences and approaches regarding addressing historical abuses as part of transitional justice; and
(vi) Varied engagements with international law, human rights law, and courts as a component of addressing their past.
The book does not propose a comprehensive comparison of transitional justice-like measures in these jurisdictions but instead adopts a focused and targeted comparison based on its evaluative and critical framework, looking at historical-structural injustices through the lenses of power and emotion.
Chapter 6 argues that inquiries, whether traditional public inquiries or more innovative and participatory forms of truth and reconciliation commissions, can enable episodic uses of power from victim-survivors and advocates, evidenced in the nature and extent of consultation and ownership of the process and the opportunity to engage with and influence the inquiry’s operations. Inquiries may shape the nature and function of the articulated emotions of victim-survivors but also have a significant emotional and potentially re-traumatising effect for victim-survivors. The chapter argues that these episodic uses of power and experiences of emotional disclosure in well-designed inquiries or commissions will necessarily raise the expectations of victim-survivors for other elements of justice, including structural justice, to be addressed through and beyond other mechanisms of transitional justice.
Chapter 7 argues that law’s framing of accountability results in an inevitably partial and fractured picture of wrongdoing for historical abuse. The chapter argues that despite a focus on accountability for historical child sexual abuse, non-sexual historical abuses, especially those authorised or ignored by law, struggle to achieve modern-day legal accountability against individuals, institutions, or states. Law’s claim to sovereign authority is unable to comprehensively address historical-structural abuses, which may challenge the legitimacy of the legal order created by states and churches. The chapter considers these challenges in the context of accountability mechanisms, including criminal prosecutions, civil litigation, and the use of canon law.
Chapter 8 argues that despite significant munificence to the compensation and redress schemes for historical abuses, the approach taken across a range of states misses the opportunity to transform the relationship between victim-survivors of historical abuse and the states and churches responsible for their harm. If the monetary and material dimensions of reparations are necessarily inadequate to the harms experienced, then the symbolic and communicative dimensions form a critical part of reparations as a response to historical-structural injustice. Rather than act as a form of settlement and closure of claims regarding wrongs, reparations can also serve as examples, to communicate ongoing commitments from states and churches to other aspects of transitional justice, that reflect a desire for a renewed relationship with victim-survivors.
Chapter 9 argues that apologies offer the most direct and explicit mechanism for states and churches to reframe and narrate historical-structural abuse. It argues that although apologies may address institutional or state failure to prevent historical abuses or the illegitimacy of historical practices, few apologies take the further step of problematising the claim by states and churches to have the legitimate power and authority to structure lives and society using violent, coercive, or dominating values and means. In doing so, they limit the capacity of the apology to impact underlying structures of power and authority in society or challenge their fundamental self-identity or founding myth.
Chapter 10 argues the practices and discourses of reconciliation have tended to operate as a form of inappropriate and premature settlement or closure of the grievances of victim-survivors and their descendants. To encourage victim-survivors and a society to pursue reconciliation in the absence of addressing other elements of transitional justice may operate as a reaffirmation of the power structures of states and churches. While the experience of Canada and Australia contains an explicit reconciliation discourse and practice, in the absence of significant change in, and imagination regarding, power relationships in those societies, they join the United States, Ireland, and the United Kingdom in remaining deeply unreconciled societies. In addition, the reconciliation practice of the Catholic Church regarding historical abuse demonstrates its inability to effectively self-critique in its processes of reconciliation.
Chapter 11 concludes the book by arguing that if it fails to consider structural injustice, power, and emotions, transitional justice may be used to legitimate structures of power and emotional narratives that continue to subordinate and marginalise historically abused groups and individuals. It concludes that a different conception of progress and transition is required to navigate the meaning of historical abuses for the legitimacy of Western liberal democracies and Christian churches. In this account, the book concludes, transition and transformation are matters of the character of progress itself, progress that lives in the tension between wrongs that ‘can never be repaired and must never be forgotten’.Footnote 71
The challenge of addressing historical abuses considered in this book arrives at a significant time. In light of the human rights violations during the Trump presidency and the attempted insurrection in the United States in 2021 and ongoing racial inequity and violence,Footnote 72 in light not only of the Rhodes Must Fall movement but also of Brexit in the United Kingdom, Western liberal democracies can no longer be understood as unproblematic end states for processes of democratisation or transitional justice but are themselves the sites of significant social change and conflict. We are at a time where there is deep and wide dissatisfaction with the way in which Western societies and human rights operate.Footnote 73 Institutional Christianity also faces its own crises. In addition to the decades of crisis in the Catholic Church caused by clerical abuse scandals, awareness of sexual abuse scandals, both recent and non-recent, grows in other Christian denominations.Footnote 74 The persistence and rise of Christian nationalism seeking to support the populist threat to Western liberal democratic values and institutions also deeply implicates the theology and pursuit of power from Christian leaders and institutions across denominations.
As a result, a new articulation and practice of transitional justice, human rights, and the values designed to serve the needs of victim-survivors is required. After thirty years or more of theorising and practice of transitional justice with deep imperfections, it should not come as a surprise that these commitments are often partially implemented or not at all. In offering a new approach, it is hoped this book will not make the perfect the enemy of the good but can also serve to advance discourse and practice in this especially challenging historical period for human rights and transitional justice. If this challenge is not embraced and historical deaths, discriminations, and harms that human rights aim to prevent are forgotten, they will be repeated in present and future contexts. Mindful of these concerns and seeking to be vigilant in not reproducing an elite-driven, top-down transitional justice, this book offers a new conception of transitional justice to analyse and evaluate the responses of states and institutional churches to historical abuses.
Organised violence is a central feature of the Christian tradition, the Roman Catholic Church, the British Empire, and nations such as the United States, Canada, Australia, the United Kingdom, and Ireland. Historical abuses within lived memory in these cases are the product of long-term, inter-generational attitudes and practices of empire – patriarchy, racism, classism, and violence – that were, in part, influenced by and justified through Christian theology and institutions. In turn, Christian churches, religious orders, and charitable organisations were among the perpetrators involved in historical abuses, achieved through the theological, moral, political, and legal condemnation of the ‘other’. This chapter offers a genealogy that demonstrates repeated patterns of exclusion, violence, and justification involving Christianity and Western European states and their settler colonies. A genealogical approach reflects how regimes of power and knowledge are assembled and reproduced.Footnote 1 Section 2.2 examines the relationship between Christianity and historical justifications for violence, with a particular emphasis on colonisation and slavery. Section 2.3 identifies the emergence of closed institutions as a key tool of nation-building that consolidated this early relationship of Christianity and violence but also extends to within living memory. Section 2.4 examines the nature of the violent abuses committed in these contexts, and Section 2.5 concludes.
2.2 Christianity and Historical Violence
From early in its existence, the Christian tradition reflected both a theological world view of inclusion and practices of liberation, and an opposing manifestation that aligned with contemporary power structures and systems of violence.Footnote 2 Though early Christian communities were originally subjected to persecution as an emergent religion in the Roman Empire,Footnote 3 Christianity was made legal in 313 CE, and later became the official Roman imperial religion under the Emperor Constantine.Footnote 4 This imperial form of Christianity subverted the original message of Jesus Christ and of early Christian communities and offered the means to justify empire and warfare through Christian theology.Footnote 5 A succession of popes and papal Christianity, later the Roman Catholic Church, took explicitly imperial forms,Footnote 6 as the notion of Christendom, the union between Christianity and material power, was evident from the fourth century.Footnote 7
Even in this early period, Christian communities were aware of the risk of sexual abuse within the church, prohibiting sex between adult men and boys in the Council of Elvira in the fourth century.Footnote 8 After the disintegration of the Western Roman Empire in the sixth century, conversion to Christianity continued to be used to provide a religious justification for organised political violence among the communities of Europe,Footnote 9 for example in the missionary armed conflict of King Charles the Great (Charlemagne) against neighbouring Saxon peoples.Footnote 10 In later centuries, violent Christianity found articulation in the nine Crusades into the modern Middle East by European armies.Footnote 11 In 1095, Pope Urban II launched the First Crusade and declared that war was not only just but holy and incentivised participation for Christians through the removal of penance for sin for those who joined the Crusade, earning forgiveness for all their sins and assurance of a place in paradise after death.Footnote 12
A second link between Christianity and organised violence emerged in 1231, when Pope Gregory IX’s Inquisition licensed the church to use torture and execution to discipline those who were deemed heretics.Footnote 13 Approximately 3,250 people were executed by inquisitions between 1231 and 1730,Footnote 14 with a significant anti-Semitic targeting of Jews.Footnote 15 During this medieval period, there is further evidence of clerical sexual abuse of children,Footnote 16 with church law specifically prohibiting child sexual abuse.Footnote 17 A third early form of Christian violence was against women in trials for heresy and witchcraft,Footnote 18 often targeting women independent of patriarchal authority.Footnote 19 Estimates of women killed for witchcraft vary between 35,000 and 100,000.Footnote 20
The later fragmentation of European Christianity through the Protestant Reformation contributed to protracted religious and sectarian violence among European communities and kingdoms. The competition between successive popes, kings, and Holy Roman Emperors led to frequent conflict and violence and to the Thirty Years’ War.Footnote 21 Stephane Beaulac notes that while originally based on religious antagonism, these conflicts were eventually dominated by the power politics of belligerents.Footnote 22 The Peace of Westphalia in 1648 marks the beginning of Eurocentric conceptions of sovereign statehood in international affairs and the demise of supreme transnational and transcendental Christian institutions as the dominant force in Europe.Footnote 23 Despite the beginnings of the early Christian churches as sites of equality and care for the poor and needy, the relationship of Christianity with empire, monarchy, and power led to significant violence justified in the name of Christianity against those deemed ‘other’.Footnote 24 This pattern would repeat itself in imperial colonisation and transatlantic slavery, justified in part by the salvation of the soul of the ‘other’ and possession of their lands and culture for Christ. These processes, in turn, provide the context and structure for historical abuses within lived memory.
2.2.1 Empire and Colonialism
Empire and colonialism were justified on several political, economic, and moral grounds, including Christian theologies linked to a view of the end of time, eschatology.Footnote 25 Brooke and Parker suggest that ‘Columbus’ expedition of 1492 sought … to plunder the riches of the environs of paradise, to bring about the conversion of the “Indians,” and to precipitate a Crusade to Jerusalem, where history would culminate’.Footnote 26 In 1493, the papal bull Inter Caetera authorised and sanctified Columbus’ expedition, with this ‘doctrine of discovery’ functioning as both a theological affirmation of conquest and a political and military mediation between colonial settler powers.Footnote 27
The logic of inquisitions and Crusades framing the non-Christian as ‘other’ continued in colonisation. Across diverse processes of colonisation,Footnote 28 ‘non-Europeans were conceptualised by Europeans in ways that dehumanised them and represented their cultures or civilisations as inferior’.Footnote 29 Several concepts of inferiority were used to justify this subjugation of the other, often designating the non-Christian as unequal or subhuman.Footnote 30 These justifications for inferiority combined with existing patriarchal structures in European colonisers, suggesting particular inferiorities for non-Christian women.Footnote 31
In designating non-Europeans and their societies as ‘other’, several religious justifications were used for colonisation, alongside commercial and political justifications.Footnote 32 The Roman Catholic papacy granted Catholic kingdoms the right to colonise lands they ‘discovered’.Footnote 33 While English expansion took place by private actors such as the Virginia Company, it also included Christian motivations.Footnote 34 English claims to ‘discovered lands’ of now Australia, Canada, and the United States relied on whether the ‘discoverer’ was able to take possession of them.Footnote 35 This was despite the existence of systems of agriculture, housing, and ‘productive’ life among First Nations peoples.Footnote 36 Europeans claimed they were bringing salvation and civilisation to non-Christian peoples.Footnote 37 Martti Koskenniemi notes that while the majority of early Spanish theologians ‘agreed that the conquest had originally taken place in an unlawful manner, this did not lead them to advocate a speedy end to the presence of Spain in the New World’ but instead required them to ‘remain as trustees to protect the innocent and to preach the gospel’, with violence justified if the Indians persisted in human sacrifice or the harassment of priests.Footnote 38
The colonisation of the United States, Australia, and Canada can be understood as settler colonialism, with an ‘intention to permanently displace the Indigenous populations within their acquired territories’.Footnote 39 Patrick Wolfe notes that ‘settler colonialism has both negative and positive dimensions. Negatively, it strives for the dissolution of native societies. Positively, it erects a new colonial society on the expropriated land base … invasion is a structure not an event’.Footnote 40 The goals of settler colonialism to acquire land and gain control of resources were accomplished through direct acts of violence, the forced removal of Indigenous peoples from their lands, and biological and cultural forms of assimilation, such as inter-marriage and replacement of Indigenous culture with settler culture.Footnote 41 Settler colonialism also had deeply gendered consequences, seeing gender differentiation, and female domesticity and dependency, as marks of civilisation.Footnote 42 Across the national contexts affected by colonisation, a wide variety of harms are discussed below. Christianity was also used to justify the ‘second wave’ of nineteenth-century colonisation throughout sub-Saharan Africa and Asia through the use of ‘the standard of civilisation’.Footnote 43 Marimba Ani notes that for such colonisers ‘Christianity and civilization were inseparable’.Footnote 44 Regrettably, in-depth analysis of these forms of empire and colonisation is beyond the scope of this book. In considering the impact of colonialism, the Canadian Truth and Reconciliation Commission report concludes in terms that apply broadly:
The justification offered for colonialism – the need to bring Christianity and civilization to the Indigenous peoples of the world – may have been a sincerely held belief, but as a justification for intervening in the lives of other peoples, it does not stand up to legal, moral, or even logical scrutiny. The papacy had no authority to give away lands that belonged to Indigenous people. The Doctrine of Discovery cannot serve as the basis for a legitimate claim to the lands that were colonised, if for no other reason than that the so-called discovered lands were already well known to the Indigenous peoples who had inhabited them for thousands of years. The wars of conquest that took place to strip Indigenous peoples of their lands around the globe were not morally just wars; Indigenous peoples were not, as colonists often claimed, subhuman, and neither were they living in violation of any universally agreed-upon set of values. There was no moral imperative to impose Christianity on the Indigenous peoples of the world. They did not need to be ‘civilized’; indeed, there is no hierarchy of societies.Footnote 45
The justifications offered for colonisation and empire merged theology, commerce, law, and politics to create and impose dominant and oppressive narratives and practices, based on the false ‘othering’ of non-Christian peoples. In addition, Christianity also merged with commercial and imperial interests to legitimate the practice of slavery.
Slavery is one of the longest-standing forms of human violence, predating Christianity and found across a range of cultures and traditions.Footnote 46 The justification of the trade in slavery from Africa draws on the same logic and processes as the Crusades and colonisation processes,Footnote 47 through the perceived inferiority of enslaved peoples and through the perceived commission of sin by non-Christians.Footnote 48 Popes in the 1400s saw enslavement as an instrument for Christian conversion and endorsed the Portuguese shipment of African slaves back to Europe.Footnote 49 On 18 June 1452, Pope Nicholas V issued the papal bull Dum Diversas, which identified Saracens (Muslims) and pagans as targetable for ‘perpetual slavery’.Footnote 50 The logic of settler colonialism, seeking to exploit land and resources and replace a native population, gave rise to the use of slavery as a means of achieving this.Footnote 51 Subsequently, the transatlantic slave trade populated colonies in the Americas. It is estimated that at least 12 million Africans were shipped across the Atlantic,Footnote 52 with more killed in transit. The majority of slaves went to Brazil or the Caribbean, with approximately 300,000 captives coming to the now United States.Footnote 53 In addition, slavery also affected Native Americans. Allan Gallay estimates that between 1670 and 1715, 24,000 to 51,000 Native Americans were exported to then Spanish Florida and to the West Indies to work in sugar cane plantations.Footnote 54
Michelle Alexander notes that the concepts of race and white supremacy emerged in the American colonies ‘as a means of reconciling chattel slavery – as well as the extermination of American Indians – with the ideals of freedom preached by whites in the new colonies’.Footnote 55 She suggests that the planter class granted poor whites access to lands and roles policing slaves, which ‘effectively eliminated the risk of future alliances between black slaves and poor whites. Poor whites suddenly had a direct, personal stake in the existence of a race-based system of slavery’.Footnote 56 In addition, Alexander argues that Southern slaveholding colonies agreed to form a union, on the condition that the federal government would not interfere with their right to own slaves as property. As a result, the US Constitution constructed a federal government weak in its relationship to both private property and states’ rights and deliberately colour-blind.Footnote 57
While Christianity had been one of the bases for legitimating chattel slavery, the abolitionist role of non-institutional Christian churches and faith movements, such as Methodists and emergent evangelicalism, is notable, in contrast to more established state churches with greater links to the slave trade or slave ownership in the United Kingdom or the United States.Footnote 58 In ending the slave trade in England, reparations were provided to slave owners as compensation for loss of their property, to the cost of £20 million (the equivalent of £16,782 million in 2008).Footnote 59 In addition, Mark Noll views debates about slavery in the United States leading to the American Civil War as profoundly theological in nature,Footnote 60 with proponents on both sides of the war ‘reassuring combatants on either side that each enjoyed a unique standing before God and each exercised a unique role as the true bearer of the nation’s Christian civilization’.Footnote 61 In the absence of theological resolution to the question of slavery in the United States, violent civil war sought to resolve the issue of slavery by force and by law.
federal civil rights legislation was passed, including the Thirteenth Amendment, abolishing slavery; the Civil Rights Act of 1866, bestowing full citizenship upon African Americans; the Fourteenth Amendment, prohibiting states from denying citizens due process and ‘equal protection of the law’; the Fifteenth Amendment, providing that the right to vote should not be denied on account of race; and the Ku Klux Klan Acts, which declared interference with voting a federal offence and the violent infringement of civil rights a crime.Footnote 62
However, a lack of meaningful enforcement of federal rights rendered some of these protections ‘largely illusory – existing on paper but rarely to be found in real life’.Footnote 63 Instead, racism and discrimination were reproduced in forms beyond slavery. Southern states began a campaign to ‘redeem’ the South, weakening new legal protections in a context of renewed racial violence and a resurgent Ku Klux Klan,Footnote 64 resulting in the withdrawal of federal troops from the South and effective abandonment of African Americans. In this new system of racial social control, known as ‘Jim Crow’, Southern legislatures adopted ‘black codes’ designed to minimise the post-Civil War effect of emancipation by creating legal forms of racial segregation in transport and education.Footnote 65 These states adopted vagrancy laws, criminalising unemployment and targeted at blacks,Footnote 66 and eight of those states enacted convict laws, forcing prisoners to work for little or no pay for plantation owners and private companies.Footnote 67 Ira Katznelson notes that the Jim Crow South was indulged in early twentieth-century federal law making, such as the New Deal, which excluded farm workers and domestic servants from old age insurance, rendering 65 per cent of African Americans nationally and between 70 and 80 per cent in the South ineligible.Footnote 68 Alexander concludes that by the twentieth century, Southern states had a broad range of laws enabling discrimination against African Americans in every sphere of life.Footnote 69
Throughout these contexts of colonialism and slavery, we can find the use of Christianity in the name of violence, oppression, and domination and as a basis for resistance, emancipation, and liberation. As the secularisation of the Western world increased throughout the Enlightenment, scientific thinking and liberal politics grew in influence across the English-speaking world.Footnote 70 Nonetheless, closed and coercive institutions, involving a combination of states and churches, played a role in the construction and constitution of society and were key sites of more recent historical abuses within lived memory.
2.3 Institutions and Abuses
Closed state- and church-run institutions emerged to address people and groups perceived as ‘other’ and as social problems,Footnote 71 beginning with the poor, then extending to specific cross-sections of society. To understand this period, David Nash suggests we concentrate on how religion is used to justify world views and the role of specific actors within that context.Footnote 72 Shurlee Swain notes that both Anglican and Catholic denominations, ‘sanctioned a view that saw the poor as being responsible for their own fate’.Footnote 73
In Britain and Ireland, the Poor Laws started the process of institutionalisation.Footnote 74 The first Poor Law in 1531 enabled local authorities to round up child vagrants and beggars and put them to work in apprenticeships.Footnote 75 A 1647 Poor Act began the process of workhouses for the poor, which later involved the training of children for industry and trades while compulsorily detained.Footnote 76 The Poor Relief (Ireland) Act 1838 established a system of workhouses throughout the country.Footnote 77 Workhouses existed in the United Kingdom until 1948 when the National Assistance Act and the National Insurance Act 1946 ended the Poor Laws.
Ryan notes that at the end of the eighteenth century, the UK poor houses were criticised as too expensive, ineffective, and sites of disease and immorality.Footnote 78 Subsequent specialist institutions emerged for women and children.Footnote 79 Regarding children, the function of institutions such as industrial schools was to prevent the negative traits of the ‘other’ from passing into the next generation.Footnote 80 Regarding the institutionalisation of women, Carol Smart notes that while law had long sought to regulate women’s sexuality and reproduction, the nineteenth century marks ‘a specific moment of struggle over the use of law to regulate the feminine body’.Footnote 81 In addition to continuing religious justifications for problematising the ‘other’, De Groot suggests that in this period ‘theories and practices related to “race” and “sex” drew on biological, anthropological, and medical scholarship’.Footnote 82 Rather than exclusively pursuing strategies of elimination, as had been dominant with colonial conquest, the rise of institutions reflects a change in state and religious thinking in the potential for incarceration, coercion, and punishment as a form of personal transformation of those deemed ‘other’.Footnote 83
2.3.1 Residential Schools
Industrial schools were proposed as a solution to poverty in Britain and Ireland, based on a model adopted in Germany, Switzerland, and Scandinavia. Reformatory schools were established in 1858 for children found guilty of criminal offences under the British Poor Law. Jane Barnes states that industrial schools had two objectives: to train children ‘to be capable of supporting themselves by honest labour’ and to reform the child’s character away from a family’s bad influence.Footnote 84 The Children Act 1908 provided that each school was to be independently managed, though subject to state inspection and funding.Footnote 85 Brian Corby et al suggest that in the United Kingdom provision was made for 100,000 children in the nineteenth and twentieth centuries under this and related systems.Footnote 86 By 1911, there were 112 industrial schools operating in England and Wales, with a majority run by charitable and religious groups.Footnote 87 Industrial schools were abolished in the UK by 1933.Footnote 88 In the UK, inquiries in the 1940s emphasised the lack of coordination and monitoring between the numerous bodies which shared responsibility for the welfare of children in the care of the state,Footnote 89 but also a failure to respond to allegations of abuse and cruelty. Scotland was distinctive for its use of day industrial schools or ‘ragged schools’, which aimed at reforming children who had not already committed crimes.Footnote 90 By the early twentieth century, the forty-eight reformatories and industrial schools in Scotland were dealing with nearly 7,000 girls and boys.Footnote 91 After the creation of Northern Ireland in 1922 with the partition of Ireland, there were only five industrial or reformatory schools still operational.Footnote 92
Industrial schools were established in Ireland under the Industrial Schools Act 1868.Footnote 93 Over the recorded period from 1936 to 1970, a total of 37,000 children and young persons entered Irish industrial schools.Footnote 94 The majority were operated by religious orders of the Catholic Church, with the state paying a stipend to the orders per child housed. A 1970 report recommended the closure of the residential school system, concluding that its rules and regulations did not conform to modern standards of childcare.Footnote 95 In Ireland, industrial and reformatory schools ensured ‘the Irish Catholic’s ability to morally herd the Irish people, while the state sought to protect itself from social unrest at poverty and the derision of foreigners, especially the formerly colonial power Britain’.Footnote 96 Buckley and McGregor note that the industrial and reformatory schools reflect the high degree of trust between the Irish state and Catholic Church. In 1939, the state removed the policy of inspecting children in industrial schools placed from statutory care ‘on the basis that the job the religious were doing on behalf of the State was such that it did not require such supervision and inspection’.Footnote 97
During the 1860s–1870s, Australia introduced industrial and reformatory schoolsFootnote 98 but met resistance, due to the perceived stigma of poverty.Footnote 99 Instead, local legislatures had to make alternative provision for the poor and especially for children.Footnote 100 The early shift from boarding schools to a ‘boarding out’ model of housing children with foster families differentiates Australia from other jurisdictionsFootnote 101 but also resulted in significant abuse for Australian children in care. It is estimated that at least 500,000 children experienced life in this out-of-home ‘care’ system.Footnote 102
In Canada, residential schools were first established by religious organisations as part of their missionary work to both ‘civilize’ and ‘Christianize’ Indigenous children.Footnote 103 From 1874 until 1969, residential schools were operated in Canada jointly by Christian organisations and government.Footnote 104 Roughly 150,000 children were taken from their families and placed in residential schools.Footnote 105 The residential school system operated with few regulations under the Indian Act from 1894, which were weakly enforced.Footnote 106 Canadian residential schools represented a colonial attempt to assimilate self-governing peoples and their national identity, by transforming their bodies, ways, and knowledge with those of the settler majority.Footnote 107 The Canadian government took direct control over all the schools in 1970 and began their closure.Footnote 108
In the United States, residential schools emerged in the seventeenth century, separating Native children from their communities to receive ‘Christian civilising instruction’.Footnote 109 Residential schools became formal federal policy in 1869, forcing more than 100,000 Native children to attend schools operated by Christian denominations and religious orders. The stated rationale of this policy, as in Canada, was to ‘kill the Indian, save the man’.Footnote 110 The schools were intended to train Native boys for manual labour and girls for domestic work, reinforcing white patriarchal structures and resulting in a loss of female leadership in Native communities.Footnote 111 Across these jurisdictions, the desire to transform the character of children in residential schools was predicated on a belief in their inferior nature, as Ferguson describes their status as ‘moral dirt’.Footnote 112 This form of othering is also evident in institutions designed to condemn and reform women.
2.3.2 Magdalene Laundries
A second closed institution operated by religious orders were Magdalene Laundries, the first was established in 1758 in England.Footnote 113 The claimed purposes of the Laundries were to house ‘fallen women’ and oblige them to engage in unpaid labour as penance and in repayment for sanctuary.Footnote 114 According to contemporary accounts, in England by 1898 ‘there were more than 300 Magdalene institutions, collectively housing 6,000 inmates and employing at least 1,200 full time Rescue staff’.Footnote 115 Comprehensive historical figures are not yet gathered for Laundries in England. In Northern Ireland, Laundries operated from 1867 until 1984, housing approximately 3,000 inmates.Footnote 116 For Linda Mahood, in Scotland, the ‘carceral regimes deployed by these Magdalene asylums were based on both class and gender ideology’, targeting young working-class women.Footnote 117
The Magdalen Laundries operated in Ireland between 1795 and 1996. Ten thousand and twelve women are known to have been detained in a Magdalen Laundries from 1922 until 1996, though victim-survivor groups contest these figures.Footnote 118 James Smith asserts, ‘In a society where even the faintest whiff of scandal threatened the respectability of the normative Irish family, the Magdalen asylum existed as a place to contain and punish the threatening embodiment of instability’.Footnote 119 In Australia, James Franklin notes the operation of eight Magdalene Laundries between 1890 and the 1960s for ‘fallen women’ who were placed in the convent, ‘voluntarily or involuntarily, for reasons such as being destitute, uncontrollable, picked up by the police, and similar’.Footnote 120 In the United States, Magdalene Laundries were established in the 1840s, with approximately thirty-five institutions established by 1900.Footnote 121 Magdalene Laundries also operated in Canada from 1820, where women were obliged to engage in unpaid labour,Footnote 122 but have not been significantly investigated.
2.3.3 Maternity Homes
From the beginning of the Poor Laws, unmarried mothers and their children were considered to be a serious problem for both the management and finances of workhouses and similar institutions.Footnote 123 In response, specialist institutions for unmarried mothers developed in the nineteenth and early twentieth centuries from voluntary, mainly religious, organisations.Footnote 124 In 1871, Female Mission to the Fallen opened the first mother and baby home in the United Kingdom.Footnote 125 Contemporary accounts of these homes and adoption societies were critical in that they were profit making, while claiming to be philanthropic.Footnote 126 It is not until 1939 and high rates of births outside marriage during World War II that national lists of mother and baby homes were compiled. A 1949 directory contained 159 homes in England and Wales.Footnote 127 In Northern Ireland, it is estimated that between 1922 and 1990 over 10,500 women entered mother and baby homes, with an undocumented number of single mothers entering workhouses.Footnote 128
In the United States, maternity homes stigmatised pregnant young women by removing them from their families, friends, and neighbours but predominantly affected middle-class white American women and girls, who were framed as psychologically neurotic for becoming pregnant outside marriage.Footnote 129 By 1972 there were 201 maternity homes in the United States, responding to a 177 per cent increase in recorded pregnancy outside marriage from 1940.Footnote 130 Rickie Solinger suggests there was greater acceptance of an unmarried mother in African American communities but also that maternity homes often had a white-only entrance policy.Footnote 131
In Canada, from the 1880s maternity homes ‘accepted money for the upkeep of an unwed mother’s infant and promised to find adoptive homes for such children.’Footnote 132 Advocacy organisations have documented that at least sixty-six maternity homes operated.Footnote 133 Murray notes the operators of such homes perceived themselves as building the Canadian nation by ensuring that future male leaders ‘would not be “ruined” by fallen sisters “dragging” them “down to the damnable abyss”’.Footnote 134 In addition, religious orders also sought to maintain the homogeneity of their own faiths.Footnote 135 Approximately 300,000 unmarried mothers in Canada were systematically separated from their babies at birth for adoption.Footnote 136 In the 1960s, the ‘sixties scoop’ meant that Aboriginal children were ‘apprehended in disproportionate numbers throughout Canada and adopted primarily into non-Aboriginal homes in Canada, the United States, and overseas’.Footnote 137 This process of disproportionate adoption reflects the closing of the residential schools in Canada but the continuance of attempts to shape Aboriginal child welfare.Footnote 138
In Ireland, in the early 1920s, the state and religious orders established several mother and baby homes to address a perceived moral crisis involving unmarried mothers, who were framed as both sinners and damaging to the reputation of the newly independent state.Footnote 139 According to the 2021 Commission of Investigation into Mother and Baby Homes report, there were about 56,000 unmarried mothers and about 57,000 children in the mother and baby homes and county homes investigated by the Commission.Footnote 140 A total of about 9,000 (15 per cent of all) children died in the institutions under investigation. In Australia, diverse institutions for child welfare operated, including orphanages, asylums, and maternity homes, which have been documented as abusive by women formerly resident there.Footnote 141 A significant practice of ‘boarding out’ children to foster homes also persisted in Australia.Footnote 142 Swain and Howe argue: ‘The objective of protecting the child while punishing the mother became the central concern of public policy in relation to single mothers’,Footnote 143 which led to a significant practice of forced adoptions, discussed below.
2.4 Histories of Abuses
In addition to entire classes and nations of peoples, women and children were particularly marginalised by social attitudes and institutionalisation through intersectional forms of harm and discrimination, affecting especially poor, black, mixed race, or Indigenous women and children. In a context of prior inter-generational harms, such as colonisation and slavery, institutionalisation not only occurred with the support of governments, churches, and families, socialised by contemporary religious attitudes and teaching, but also formed part of criminal justice, health, and welfare systems. When combined with persistent criminal behaviour by religious actors outside of institutional contexts, especially clerical child sexual abuse, a picture of widespread and systemic harms against members of these societies from state and church officials emerges. Harm, especially sexual violence, is always under-reported and difficult to estimate. This is doubly true regarding historical abuses, where the passage of time and degradation of evidence make it difficult now to reach accurate estimates about the number of victims-survivors and perpetrators involved.Footnote 144 The harms listed below should be understood as provisional and likely under-reported.
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group; and
(e) Forcibly transferring children of the group to another group.Footnote 145
The label genocide remains highly controversial in its application to the United States, Canada, and Australia,Footnote 146 due in part to the retroactive application of this legal concept and the effect of alleging genocide in challenging national myths and identities.Footnote 147 Russell Thornton estimates the total Indigenous American population to be 5 million before 1492, falling to 250,000 towards the end of the nineteenth century,Footnote 148 though the nature and extent of genocidal killings, with the intention and not merely the consequence of destroying specific groups, remain highly contentious.Footnote 149 David Stannard suggests ‘disease and genocide were interdependent forces, acting dynamically’.Footnote 150 Some examples exist of clear genocidal intent. In the nineteenth century, the discovery of gold in California led to a significant inward migration of settlers that devastated the Indigenous population, which at that time was estimated to have numbered approximately 150,000. Fewer than thirty years later, that population was reduced to fewer than 30,000.Footnote 151 A California state fund was created to pay per head or scalp of each Native American person exterminated.Footnote 152
In addition to the military conquest of land, settler colonialism across the United States, Canada, and Australia demonstrates several practices that could be deemed genocidal in nature, or, at a minimum, have genocidal consequences, such as sexual violence. In addition, several forms of assimilation and the construction of citizenship and equality legislation can be seen to have destructive effects on the sovereign nature and identity of First Nations and Native peoples. In the United States, the Indian Citizenship Act 1924 declared all Indian peoples ‘born within the territorial limits of the United States’ to be US citizens and not primarily members of their tribal nation.
In Australia, two practices against Aboriginal peoples have been suggested as genocidal: killings in the process of land seizure and dispossession, and the twentieth-century policies of institutionalisation and child removal that ‘developed as settler governments attempted to control surviving Indigenous populations’.Footnote 153 Colin Tatz maintains that the violent extermination of First Peoples in Australia reduced a population of at least 250,000 at first contact in 1788 to 30,000 by 1911.Footnote 154 The Australian Bringing Them Home report concluded that child removal from Indigenous families constituted genocide; that mixed motives did not abrogate the required intention for genocide; and that removal policies continued well after 1946 when genocide became a crime under international law. One in ten, possibly as many as one in three, Indigenous children were removed from their families and communities between 1910 and the 1970s.Footnote 155
In Canada, over 150,000 First Nations, Métis, and Inuit children were placed in residential schools, which the Canadian Truth and Reconciliation Commission (TRC) termed ‘cultural genocide’.Footnote 156 Bonita Lawrence describes assimilationist strategies which limited the status of Indigenous peoples to those who married within their own people, ‘statistical genocide’, with over 25,000 women having lost status between 1876 and 1985; anywhere from 1 to 2 million of their descendants are now incapable of asserting any legally recognised Indigenous identity in Canada.Footnote 157 A 2019 report concluded that contemporary violence being perpetrated against First Nations, Inuit, and Métis women and girls ‘amounts to a race-based genocide of Indigenous peoples’.Footnote 158 Accusations of genocide have been resisted in the United States, Canada, and Australia and offer a challenging alternative to positive national histories, identities, and myths.Footnote 159 In the face of such resistance, Larissa Behrendt insists: ‘the political posturing and semantic debates do nothing to dispel the feeling Indigenous people have that this is the word that adequately describes our experience as colonized people’.Footnote 160
2.4.2 Physical, Sexual, and Psychological Violence
Physical and sexual violence are a central element of historical abuses considered in this book. Evidence of sexual abuse, including child sexual abuse, in Christian churches has a long history,Footnote 161 in both institutional and non-institutional settings. Doyle, Sipe and Wall conclude: ‘sexual abuse of minors and adults by Catholic clergy has continued without interruption from the post-Apostolic period to present’.Footnote 162 Child sexual abuse perpetrated by priests has occurred in Ireland, Canada, the United States, the United Kingdom, and Australia in significant numbers, both in institutional settings and in the dioceses and parishes of the Catholic Church. When perpetrated against Indigenous peoples in the context of broader assimilationist strategies, such violence can assume a genocidal character.Footnote 163
In the United States, within the Roman Catholic Church, initial reports disclosed a total of 17,259 reported cases with 4,392 priests accused of abuse between 1950 and 2002.Footnote 164 One estimate suggests that there may be 100,000 total victims of child sexual abuse arising in the Roman Catholic Church in the United States alone.Footnote 165 Andrea Smith also alleges rampant sexual abuse in Indian boarding schools,Footnote 166 though in the absence of nationwide inquiries it is difficult to ascertain the appropriate figure.
Sexual violence also forms part of the legacy of violence inherent in slavery and racism in the United States,Footnote 167 especially in a context where black women’s bodies, and any children resulting from rape and sexual assault, were deemed property.Footnote 168 Patricia Hill Collins notes that perversely after emancipation when enslaved women were no longer property, they were vulnerable to even more rapes: ‘No longer the property of a few White men, African American women [and girls] became sexually available to all White men’.Footnote 169
Sexual violence intersects with other forms of racist violence, especially lynching. Racist perceptions of the threat of sexual violence posed by black men to white women were often the basis for lynching of black men,Footnote 170 who were frequently sodomised or castrated as part of the lynching violence.Footnote 171 Lynching, being premeditated extrajudicial killing, emerged as a particular form of political and racial violence in the post-Reconstruction United States.Footnote 172 Lynchings were often public and mass events in which dozens or hundreds would participate,Footnote 173 often on the supposed basis of an allegation of murder or rape by the victim.Footnote 174 Estimates indicate at least 4,000 racially motivated lynchings between 1877 and 1950.Footnote 175 Sherrilyn Ifill notes the economic dimensions of lynching amid agriculture on large plantations ‘lynching helped ensure the maintenance of a compliant and available workforce, without which the traditional agrarian southern economy could not function for the benefit of whites’.Footnote 176 James Cone sees the legacy of lynching as a key element of understanding the structural violence of racism in Christian terms: ‘every time a white mob lynched a black person, they lynched Jesus. The lynching tree is the cross in America’.Footnote 177
In Canada, at least 37,951 claims have been received for injuries resulting from physical and sexual abuse at residential schools,Footnote 178 likely only a portion of the full harms experienced. Although the Canadian Truth and Reconciliation noted the widespread nature of sexual abuse in residential schools against Aboriginal children,Footnote 179 in the absence of a nationwide inquiry into clerical abuse it is impossible to estimate the scale of sexual violence both in and out of institutions. Physical abuse and sexual abuse often were intertwined.Footnote 180 In 2019, the Canadian Conference of Catholic Bishops (CCCB) was unable to provide comprehensive figures of the number of priests credibly accused of child sex abuse since 1950, noting that its conference did not gather nationwide statistics.Footnote 181
In Australia, sexual violence has long been a pervasive form of harm, both in and beyond institutional contexts.Footnote 182 However, as in other jurisdictions, prosecutions for child abuse in the context of institutions remained challenging. A 2017 report heard from almost 8,000 survivors of abuse alleging abuse in over 3,400 institutions,Footnote 183 with over 1,800 alleged perpetrators in religious settings in claims of child sexual abuse,Footnote 184 and 7,382 survivors alleging abuse in religious settings.Footnote 185
In Ireland, commissions of inquiry revealed that sexual abuse was ‘endemic’ in religious institutions throughout the country, with more than 1,000 former pupils testifying with allegations of physical and sexual abuse.Footnote 186 Between 1975 and 2014, there were 4,406 allegations of child sexual abuse by priests reported to church authorities and Gardai.Footnote 187 In the United Kingdom, at the time of writing, the nature and extent of historical child abuse in England and Wales, and in Scotland, remain subject to ongoing inquiries. In Northern Ireland, the Historical Institutional Abuse Inquiry (HIAI) found systemic failings in the majority of residential institutions for children it investigated, with evidence of sexual, physical, and emotional abuse; neglect; and unacceptable practices across the institutions and homes examined.Footnote 188 Across these jurisdictions, it has also been shown that religious superiors knew about allegations of sexual abuse and made efforts to cover up the abuse or transfer abusers to avoid scandal.Footnote 189 While child sexual abuse crises have gathered significant national and international attention, it is important to position such abuse in the context of broader systems of violence and oppression of those deemed ‘other’, both in and beyond institutional contexts.
2.4.3 Theft of Land and Property
The conquest and occupation of Indigenous land is key to the structure of settler colonialism as an ongoing event, affecting the territories known as the United States, Canada, and Australia today. Settling forces removed Native peoples from lands they sought to occupy, through treaties, violence, and economic coercion. Western attitudes to sovereignty and early international law ignored the sovereignty and laws of Indigenous peoples and First Nations,Footnote 190 to expropriate and take land without effective consent. Walter Hixson notes that ‘Euro-Americans employed the law as a means of disavowing the colonizing act. In some cases Indians legitimately sold land. Other times speculators and officials cheated them out of land, sometimes in collusion with their own “chiefs” or other tribes’.Footnote 191
From the 1600s on, the territories of Indigenous tribes in North America were invaded by the English, Spanish, and French and, later, by the Americans. Kent McNeil notes that the loss of the lands of First Nations peoples was gradual and that it was not until 1870 to 1890 that ‘the asserted territorial sovereignty of these states became a reality on the ground’.Footnote 192 In the United States, the Indigenous Reservation system began in 1763 with the Royal Proclamation set by Great Britain.Footnote 193 Between 1778 and 1871, the US Senate ratified 370 Indian treaties.Footnote 194 The 1830 Indian Removal Act systematised a federal policy forcibly moving Native peoples away from settler-populated areas.Footnote 195 Glenn notes: ‘Through treaty, these tribes were prevailed upon to cede their traditional lands in Mississippi, Alabama, Georgia, and Florida in exchange for land west of the Mississippi’.Footnote 196 This led to the forced migration of five tribes from traditional lands in the Southern United States to Oklahoma, in what is known as ‘the Trail of Tears’,Footnote 197 leading to a forced march of the Cherokee peoples to the West and the death of at least 4,000 Cherokees from hunger, cold, and disease.Footnote 198
In 1851, Congress passed the Indian Appropriations Act creating Indian reservations in Oklahoma.Footnote 199 The 1871 Indian Appropriation Act removed constitutional recognition of tribes as sovereign nations. In the 1880s, federal Indian policy adopted the goal of assimilation or ‘Americanisation’ to be achieved through education of Indian children in residential schools, as discussed above, and through land allotment, intended to break up tribal governments, abolish the reservations, and assimilate Indians into non-Indian society as farmers.Footnote 200 Charles Geisler suggests that ‘Indians in America lost their land through coercion muted by market-like negotiations on some occasions and coercion without pretense on others’.Footnote 201 Glenn notes that ‘before the start of allotment, Indians owned 138 million acres; that amount was reduced to 54 million acres by 1934 when the allotment program was terminated’.Footnote 202 The theft of land also affected African Americans, who were excluded from the Homestead acts.Footnote 203 A 2001 investigation into the theft of black-owned land stretching back to the pre-Civil War period documented some 406 victims and 24,000 acres of land valued at tens of millions of dollars. The land was taken through various means from legal pressure to violence.Footnote 204 Richard Rothstein has recently argued that racial segregation of land and housing has persisted throughout America through active policies of government at local, state, and federal levels.Footnote 205
In Canada, jurisdiction over ‘Indians and Lands reserved for the Indians’ was assigned to the Parliament of Canada through the Constitution Act 1867. Canada promised Britain to honour the provisions of the 1763 Proclamation to ‘negotiate with its Amerindians for the extinguishment of their title and the setting aside of reserves for their exclusive use’. This promise led to several numbered treaties.Footnote 206 Subsequent government practice under the 1876 Indian Act asserted further control over Indigenous people and their sovereignty. The Canadian TRC concluded that the Government of Canada’s failure to honour the original intent of treaty relationships, as well as the ‘destructive impacts of residential schools, [and] the 1876 Indian Act’, have resulted in the broken trust among Indigenous people and Canadians.Footnote 207
In Australia, in 1788, the First Nations possessed the entire continent. Then during a prolonged period of land grab from 1788 to the late 1960s Indigenous peoples were dispossessed.Footnote 208 Aileen Moreton-Robinson argues that settler states viewed dispossession as inherently legal based on the idea of terra nullius: ‘Indigenous people did not have a concept of ownership, which means that we had no sovereignty to defend. Thus there was no theft, no war, and no need to have a treaty’.Footnote 209 The dispossession of land is central to the harms experienced and reproduced against Indigenous peoples in settler colonies. As we will see in subsequent chapters, although states are willing to acknowledge and seek to remedy other more discrete harms, the return of lands to Indigenous peoples remains deeply challenging.
2.4.4 Slavery and Unpaid Labour
Slavery and subsequent practices of discrimination and mass incarceration of African Americans in the United States are discussed above. In Australia, unpaid labour was central to the establishment of Indigenous camps on land occupied by European conquest.Footnote 210 Domestic labour was promoted as a means by which to civilise and assimilate Indigenous girls into lower social classes.Footnote 211 State and church officials framed the exploitation of the labour of children to build religious buildings as training and education.Footnote 212 Unpaid labour was also a feature of life in workhouses in Ireland and the United Kingdom,Footnote 213 and latterly in industrial schools.Footnote 214 Unpaid labour was framed as penance for moral wrongdoing in Magdalene Laundries and maternity homes.Footnote 215 In Canada, in residential schools, parents and inspectors raised concerns about just how much work Indigenous students were being required to do.Footnote 216 The exploitation of labour across diverse national contexts demonstrates the links between historical abuses and the modern-day distribution of wealth and economic structures.
2.4.5 Forced Child Removal
Adoption and child migration were used to create a new family by seeking the destruction of another, an exchange that increased the number of ‘respectable’ citizens while cleansing the country of others. In the nineteenth century, child migration began to be seen in the United Kingdom as a means of reducing the financial demands of the poor, meeting ‘labour needs of underpopulated colonies’, and benefitting child migrants themselves.Footnote 217 Gordon Lynch suggests that churches and charities cultivated a sense that child migration was a moral necessity to keep children within their own religious tradition.Footnote 218
Several policies were enacted in the United States, Canada, and Australia to remove children of the poor and Indigenous children from their families and communities, to ensure they became ‘“civilized” and Christianised’.Footnote 219 In the United States, urban growth and immigration placed children in poor families at significant risk of hunger, disease, and poor housing in a context of a need to populate the American West and further assimilate migrants.Footnote 220 ‘Orphan trains’ organised placement of upwards of 200,000 urban poor children from the east of the United States within religious communities in the Western United States.Footnote 221 Starting in the 1880s, Indian child removal combined with placement in boarding schools to limit the influence of Indian mothers and to assimilate the child,Footnote 222 with as many as 25–35 per cent of all Indian children forcibly removed, mostly from extended family networks, and placed in predominately non-Indian homes, which had no relation to American Indian cultures.Footnote 223 Between 1900 and the 1970s, one-third of all Indigenous children born had been adopted into non-Indigenous families.Footnote 224 Rickie Solinger notes that it is especially post-World War II that US policymakers began to enact specific policies to separate mother and child where a mother was deemed morally problematic for being poor, pregnant, and unmarried.Footnote 225 Across the United States, it is estimated that a million and a half babies were adopted between 1945 and 1973.Footnote 226
In Australia, the first child removal legislation introduced in the 1840s related to Indigenous children.Footnote 227 Missionaries believed that by direct instruction of Aboriginal children, the children would ‘appreciate not only the benefits of civilisation, but the higher advantages of Christianity’.Footnote 228 Swain notes the progressive strengthening of the child removal powers can be understood within the context of growing concern about the racial composition of the nation.Footnote 229 The Aborigines Protection Act 1909 enabled the removal of children without their parents’ consent if they were found by a magistrate to be ‘neglected’, which included children having ‘no visible means of support or fixed place of abode’.Footnote 230 Adoption was a radical process enabling the erasure of a child’s identity.Footnote 231 In this context, children were placed in church-affiliated institutions, where they were removed from and often had no further contact with their identity, families, and culture.Footnote 232 As noted above, the forced removal from Indigenous families, the Stolen Generations, affected between one in ten and one in three Indigenous children. Child migration of foreign white children became an explicit policy of the Australian government as part of its White Australia policy.Footnote 233 The 1922 Empire Settlement Act in the United Kingdom funded this child migration scheme. However, after their arrival in Australia, no authority monitored the children.Footnote 234 UK child migration schemes continued until 1970.Footnote 235 6,500–7,000 unaccompanied child migrants were sent from the UK to Australia alone between 1912 and 1970.Footnote 236
In Canada, approximately 90,000 unaccompanied children were transported from the United Kingdom from 1869 until the early twentieth century.Footnote 237 Lynch notes that throughout the nineteenth century ‘the organisational structures through which child migration from Britain to Canada operated were diffuse, made up of competing and complementary relationships between state welfare providers, philanthropists, civic leaders, donors and churches’.Footnote 238 In addition, domestic adoptions in Canada were significant in the twentieth century. Some 600,000 Canadian babies were labelled ‘illegitimate’ between 1945 and 1971, and it is estimated that between 300,000 and 450,000 babies were given up for forced adoption during this period.Footnote 239
In the United Kingdom, it is estimated that at least 500,000 women were affected by forced adoption practices in the twentieth centuryFootnote 240 but only recently did this become subject to official investigation.Footnote 241 Adoption was unregulated in Ireland, until the Adoption Act 1952. Natural mothers have strongly disputed the voluntary nature of the consent given to these arrangements even after 1952.Footnote 242 Mike Milotte argues that successive Irish governments were aware of a substantial, lucrative but entirely illegal trade in Irish children through illegal adoption and that both church and state supported the process in part as a mechanism to avoid the adoption of children into Protestant homes and to retain the Catholic faith of adopted children,Footnote 243 with allegations of up to 15,000 illegal adoptions nationally.Footnote 244 For many children, migration or adoption constituted a painful loss of relationships with family friends and community, compounded by neglect in new homes and institutions.Footnote 245 For some children, these forms of harm were compounded by experiences of physical and sexual violence and exploitation of their labour, as discussed above.
Amid other social, political, and economic forces, Christianity and churches were intimately involved in the social cultural and political development of Western Europe and the Global North but also in the justification of violence, conflict, and marginalisation of those deemed ‘other’, inferior, or morally problematic: non-Christians, non-whites, the poor, with a particular emphasis on women and children. Christianity framed and amplified historical abuses and their justifications to existential, eternal dimensions. It is in this context of inter-generational and widespread forms of violence that we can place closed institutions that operated until within living memory. The continuation of ideas that gave rise to historical abuses and the material aftermath of these harms continue to shape and inform the countries and churches examined in this book. If these cycles are not broken, justice for historical abuses will not be attained, and these countries and churches may reproduce fresh instances of exclusion, othering and violence, even as they attempt to do justice to the past.
Chapter 2 outlined patterns of historical abuses involving states and churches from antiquity to lived memory. These wrongs not only are historically distant violence or non-recent violence within living memory but also contribute to producing present-day structural injustices. In addition to addressing the concerns of living victim-survivors, what should these states and churches do with the inheritance and burden of their prior wrongdoing that persists in present day? This chapter argues that addressing historical-structural injustice should be understood as a necessary part of dealing with the past through transitional justice. This chapter first examines the documented and ongoing lived experiences and impact of abuses on victim-survivors. It then explores competing conceptions of structural injustice and argues that an integrated approach linking both liability and social connection should form the basis of responsibility for historical-structural injustice. It then examines the reproduction of historical-structural injustices in modern societies, before articulating the potential contribution of transitional justice to addressing these harms. The final two sections preview the hypothesis of Chapters 4 and 5: that structures of power, emotions, and national and religious myths inhibit society and churches from fully addressing historical-structural injustice.
3.2 Lived Experiences of Victim-Survivors of Historical Abuse
It is impossible to offer a comprehensive picture of the damage caused by the historical abuses detailed in Chapter 2. The first-hand accounts of many are lost to time. Of those accounts recorded or documented, individuals, communities, and peoples often experienced the same form of abuse in different ways.Footnote 1 A minority of accounts and narratives demonstrate either positive accounts of institutionalisation,Footnote 2 or positive elements to an overall experience.Footnote 3 The vast majority of testimony provided and recorded in official investigations, personal autobiographies, oral histories, and other recorded accounts of historical abuse are overwhelmingly negative and recount, in harrowing detail and remarkable similarity across diverse contexts, the profound suffering and impact of these wrongs. The impact of genocide on Indigenous peoples and transatlantic slavery has altered the face of continents irrevocably, with widespread inter-generational loss of life to Indigenous communities, as well as loss of ownership of land, identity, and statehood, leading to inter-generational traumas.Footnote 4 The legacy of slavery, Jim Crow, and successive generations of racial discrimination and violence have had a profound effect leading to inter-generational traumas on African Americans.Footnote 5
In addition, trauma and related harms to life and health are a pervasive feature of those directly affected by historical abuse. Victims-survivors of child sexual abuse can suffer profound psychological damage, including post-traumatic stress disorder, substance abuse, or depression.Footnote 6 Similar psychological harms can be evidenced among those subjected to institutional, non-sexual forms of historical abuseFootnote 7 and those affected by forced adoption and other forced child transfer practices.Footnote 8 A common experience of institutionalisation is isolation and separation from one’s family and community, and the destruction or damage of experiences of Indigenous languages, culture, and practices.Footnote 9 Finally, the religious nature of the staff of the institutions had the capacity to create distinctive forms of spiritual abuse,Footnote 10 creating significant anxiety and distress in areas such as theological belief, crisis of faith, and fears surrounding the participant’s own mortality.Footnote 11
A victim-survivor-centred approach to addressing these harms may seek to respond to these lived experiences.Footnote 12 Such an approach may extend to address the socio-economic dimensions of human rights abuses. However, transitional justice practices, focusing primarily on individual lived experiences of harm, neglect the ways in which historical abuses may create and relate to systemic and widespread structures of harm, inequality, and discrimination that persist and are reproduced today. The broader legacies of colonisation, slavery, and inter-generational harms would likely form the context or backdrop to an approach that centres survivors of abuse within living memory. To examine the broader and enduring impact of historical abuses requires addressing the concept of structural injustice.
3.3 Structural Injustice
Diverse definitions of structural injustice persist.Footnote 13 Johan Galtung contrasted direct violence, such as human rights violations against individuals and peoples, with structural violence that is not ‘personal’, ‘direct’, and ‘intentional’.Footnote 14 On this account, structural injustice and violence may become normalised, legitimated, and appear invisible in a particular social context. Galtung describes this as ‘cultural violence’.Footnote 15
Similarly, Iris Young suggests that ‘structural injustice occurs when social processes put large groups of persons under systematic threat of domination or deprivation of the means to develop and exercise their capacities, at the same time that these processes enable others to dominate or to have a wide range of opportunities for developing and exercising their capacities available to them’.Footnote 16 Young distinguishes between instances of intentional oppression and structural injustices that are the cumulative effect of multiple, uncoordinated decisions of diverse agents, where individuals may claim their individual interactions are morally just but still contribute to producing and reproducing structural injustice.Footnote 17 Similarly for Catherine Lu, structural injustice refers ‘to the institutions, norms, practices, and material conditions that played a causal or conditioning role in producing or reproducing objectionable social positions, conduct, or outcomes’.Footnote 18
In contrast, Madison Powers and Ruth Faden suggest the need for an approach that integrates both direct and structural violence: ‘human rights violations and structural unfairness are inseparably connected in ordinary contexts and belong in one theory of structural injustice’.Footnote 19 They argue that it may not be easy to analytically separate the categories of intentional harms and structural injustice, and to do so may also minimise the role of those who knowingly benefit from structural injustices or fail in their duty to protect others.Footnote 20
These different conceptions of structural injustice pursue different approaches to a variety of features. The first feature is a typology of unjust social structures. For Young, structures can be analytically divided into two types: (1) environmental and (2) rules based.Footnote 21 ‘Environmental’ structures include all those physical objects in society, such as the planning and construction of cities and housing that may be unjust on grounds of race, class, or claims to ownership.Footnote 22 In contrast, ‘rule-based’ structures consist of not only formal and informal rules that shape social interaction, such as legal rules, institutions, and hierarchies, but also non-legal norms, social expectations, and practices.Footnote 23 Young emphasises that structures create different but interdependent social positions, typically of hierarchy and inferiority, for instance the distinction between civilised and uncivilised peoples.Footnote 24 Such relationships can reproduce unjust structures in an unreflective or subconscious manner. Powers and Faden define structures: ‘to include both domestic and international institutions and social practices that are, in their totality, a systematic social framework within which regular, ongoing, highly consequential interactions among individuals, social groups, and various institutional (governmental and non-governmental) agents take place’.Footnote 25 The authors also limit the relevant institutions and social practices applicable to structural injustice as those that share the characteristics of being asymmetric, near-inescapable, profound, and pervasive.Footnote 26
In the context of the historical abuses of this book, settler colonialism is a paradigmatic structure. Patrick Wolfe states ‘the colonizers had come to stay – invasion is a structure not an event’.Footnote 27 Settler colonialism operates with an ‘intention to permanently displace the Indigenous populations within their acquired territories’.Footnote 28 Similarly, other forms of white supremacy and racism can operate as a form of structural injustice that ‘produces and reproduces segregation of members of racialised groups, and renders deviant the comportments and habits of these segregated persons in relation to dominant norms of respectability’.Footnote 29 In addition, Nuti emphasises how women have been subjected to structural injustice through both past overt discrimination and contemporary, seemingly egalitarian categorisations that inform a current ‘unjust set of constraints that those who are recognised as women are likely to encounter’.Footnote 30 Mantouvalou has recently argued that state structures of welfare may unintentionally reproduce structural forms of poverty, including ‘in work’ poverty.Footnote 31 Joe Feagin and Kimberley Ducey argue that elite, white-male dominance represents a ‘complex and oppressive system central to most western societies that now affects much of the planet’. As a result, they argue that systemic sexism, classism, and racism all appear together in society and ‘are regularly interlocking, codetermining and co-producing in a helix-like fashion’.Footnote 32 Specific empirical evidence of current injustices in some of these structures is outlined below.
Third, these theories differ in the nature of responsibility for structural injustice. For Young, conventional forms of legal justice represent a liability model, where responsibility is conceived of as a wrongful deviation from a normal and acceptable set of background conditions. In contrast, if responsibility for structural injustice is framed in terms of social connection,Footnote 33 the background conditions themselves are put into question from a moral point of view.Footnote 34 On Young’s account of social connection, we can be held responsible for contributing to structural injustice even if we cannot be blamed for our individual conduct,Footnote 35 because of our participation in and contribution to the systems that reproduce patterns of injustice.Footnote 36 For Young, blameworthy conduct is not a central feature of structural injustice. Her contention is that a focus on fault ‘obscures the structural and institutional framework of oppression’. Young emphasises that this social connection model of responsibility should not fully replace other concepts of responsibility but rather complement them.Footnote 37 Maeve McKeown reads Young’s social connection model as ‘the most appropriate and consistent way to understand connection to structural injustice is that individuals reproduce the background conditions in which they act’.Footnote 38 As Sarah Maddison notes, ‘in as much as later generations continue to benefit from the resources and gains produced by historical injustices, and in as much as we continue to deny that the current circumstances … have causal links to these past injustices, then our response makes us guilty as a new collective’.Footnote 39
In assessing Young’s approach to responsibility for structural injustices, Neuhäuser notes: ‘what remains rather underdetermined in her approach is how exactly she envisions the collective elimination of structural injustice. It remains unclear, in other words, who has to do what’.Footnote 40 Organisation of collective action needs to be both effective and just in the context of existing liabilities for individual, institutional, and structural injustices, which is neglected in Young’s account.Footnote 41 Young’s account: ‘gives no advice as to how responsibility can be distributed along the criteria of power, privilege, interest, and collective capacity’.Footnote 42 To provide this type of guidance in addressing structural injustice, Neuhäuser suggests the need for public discourse and institutions that can structure and organise the distribution of responsibility.Footnote 43 As a result, individual and institutional actors may share responsibility for addressing both their liabilities and structural injustice, which can be ascertained through the use of existing and new institutional mechanisms.Footnote 44 This suggests the mechanisms of transitional justice could potentially contribute to identify and foster accountability and responsibility for structural injustices.
Similarly, responsibility for structural injustice differs from what Catherine Lu calls interactional justice, that is, ‘the settling of accounts between agents for wrongful conduct or unjust interactions and for undeserved harms and losses or injuries’.Footnote 45 Interactional justice seems to capture the majority of transitional justice practices, such as accountability and redress. In contrast, for Lu, pursuing justice that responds to structural injustice seeks to correct ‘the conditions in which agents interact and relate to themselves, each other and the world’.Footnote 46 On her approach, agents responsible for structural injustice must repudiate and transform the structural factors that enabled the wrongdoing to occur and seek to establish conditions in which those who were victimised can regain effective moral and political agency in the relevant social/political orders.Footnote 47 In agreement, Robin Zheng suggests that responsibility for structural injustice is differentiated and that ‘individuals bear responsibility for collectively transforming social structures because of the social roles we occupy’.Footnote 48
Finally, theories of structural injustice take different accounts of the role of historical injustice specifically. For Young, in cases where the perpetrators and victims are still alive, a liability model of responsibility remains appropriate but may need to be supplemented with the social connection model. In contrast, ‘cases of historic injustice whose original perpetrators and victims lived generations ago present particular ontological and conceptual problems when we try to apply the liability model to them’.Footnote 49 This will be explored further in the context of transitional justice institutions in Part II of the book.
Young notes the potential for the liability model to operate for historical injustice where there may be evidence to demonstrate the responsibility of an agent, such as a business or church, that is the same institution as in the period of historical abuse.Footnote 50 While she gives examples of US cities or corporations that profit from slavery, she refuses to extend this to the state of the United States itself, as ‘the U.S. government has both aided slavery and the subsequent oppression of African Americans and made explicit reforms aimed at providing some remedy’.Footnote 51 For Young, the responsibility for historical injustices falls on the people of the United States, or at least to some of them.Footnote 52 For Young, the purpose of engaging in an assessment of historical injustice is to understand the production and reproduction of structural injustices, not to praise or blame but to see the relationship between actions, practices, and structural outcomes and to add moral weight and priority to reforms in that area.Footnote 53
In contrast, for Alasia Nuti, historical abuses play a specific role in structuring present-day forms and patterns of structural injustice: ‘the unjust past cannot be superseded by present-based considerations of injustice because the former structures the latter’.Footnote 54 For Nuti, it is important to emphasise ‘how many (although not all) environmental and rules-based structural processes do not simply stem from the sedimentation of past deeds and decisions but are also significantly connected with past unjust actions – that is, with historical injustices’.Footnote 55 Rather than being conceived as merely enduring, historical injustices should be regarded as historical-structural injustices that are reproduced over time, even if the original injustice, for instance slavery, has ended.Footnote 56
For Nuti, historical-structural injustices should be understood in terms of ‘unjust long-term structures that endure over time and through institutional transformations by means of changes in how they operate. Changes over time in the workings of an injustice are necessary for that injustice to be reproduced, especially in contexts where a past has been repudiated as unjust formally and by many societal members’.Footnote 57 For instance, Michelle Alexander similarly argues that those invested in racial hierarchies adapt new systems of control as each one seems to fail: ‘Following the collapse of each system of control, there has been a period of confusion – transition – in which those who are most committed to racial hierarchy search for new means to achieve their goals within the rules of the game as currently defined. It is during this period of uncertainty that the backlash intensifies and a new form of racialised social control begins to take hold. The adoption of the new system of control is never inevitable, but to date it has never been avoided’.Footnote 58
Historical abuses detailed in Chapter 2 involve the state, individuals, and institutions as they are directly liable and socially responsible for abuses within lived memory and those that are repeated and reproduced across generations in related but different contexts. Although the accounts above disagree on several issues, the integrated approaches adopted by Powers and Faden and Neuhäuser suggest the potential to consider both liability-based responsibility for historical abuses, based on existing and continuous legal obligations, and broader forms of responsibility for structural injustice, based on social connection. Nuti’s account clarifies that the latter form of responsibility can and should be informed by the former. Those individuals, institutions, and actors bearing legal and political responsibility for historical abuse directly should play a particular role regarding responsibility for structural injustice. In particular, the role of the state and Christian churches as a continuous legal and political actors and Christian churches suggests the potential for responsibility in terms of both liability and social connection.
If an integrated approach involving both liability and social responsibility for historical-structural injustice is possible, law is likely to play a significant role in determining whether liability or social responsibility is the primary way to understand responsibility for past harms. Law can play a mediating function in determining whether and when a particular set of harms constitute a form of liability or a form of structural injustice. In doing so, the legal system itself may constitute a site where structural injustice is reproduced, by unduly narrowing or restricting the basis for liability or by denying the systemic or widespread nature of harms that are/should be subject to legal liability. However, the capacity of a legal system to be employed for its mediating role may also be limited by political and social scepticism or rejection of the burden of historical-structural injustices, for reasons explored below and in subsequent chapters.
3.4 Addressing and Resisting the Impact of Historical-Structural Injustices on Contemporary Societies
The claim that historical abuses are the basis of disadvantage or harm to individuals and groups today remains politically divisive across the jurisdictions studied. Emily Beausoleil notes that ‘it remains difficult to discern the indirect and elaborate networks and systems that connect the rich to the poor’.Footnote 59 For Jeremy Waldron, the effects of historical injustices may be superseded by circumstances, and social conditions may change to render just what was previously an injustice.Footnote 60 Such scepticism is also expressed among contemporary national religious and political leadership. In response to renewed claims for the need for reparations for slavery, Jim Crow, and the patterns of violence against African Americans, US Senator Mitch McConnell declared: ‘I don’t think reparations for something that happened 150 years ago, when none of us currently living are responsible, is a good idea’.Footnote 61 In its recommendations, the Irish Commission of Investigation into Mother and Baby Homes stated: ‘Financial redress for past wrongs involves the present generation paying for the wrongs of earlier generations and it could be argued that this is unfair’.Footnote 62 Zinaida Miller notes such positions are not ‘solely or even primarily about the preservation or memory of the past. Rather, they are assertions about how that past should inform the ways in which resources, power, and rights are distributed today’.Footnote 63 On her account, ‘The fulcrum of debate is not whether to discuss the past or not but rather how to define it and what it means in and for the present’.Footnote 64
In rejecting such concerns, Alasia Nuti draws on the work of Reinhart Koselleck to suggest that historical time is always embedded within social and political institutions, and thus the framing of history, the past and their importance to the present, is deeply political.Footnote 65 During modernity, according to Koselleck, the past starts being conceived as exceptional and separated from the present and the future.Footnote 66 As a result, critics of addressing historical injustice are able to separate the unjust past from the present injustices and relegate the current relevance and impact of historical abuses. In contrast, Koselleck argues that there are two different yet interdependent levels of temporality: ‘events’ and ‘long-term structures’.Footnote 67 Events are specific, occur in a determinate moment, and are capable of being narrated as having a beginning and end. Long-term structures endure over time and may extend over inter-generational groups of persons. For Koselleck, long-term structures offer a necessary but insufficient basis to explain the occurrence of particular events, which remain the product of individual agency, under conditions created by the long-term structure.Footnote 68
To illustrate the relevance of this approach to historical-structural injustice, Nuti gives the example of slavery in the United States both as a historical phenomenon (an event) and ‘also characterised by long-term structures that constituted its possibility of existence and that may have outlived the end of the ‘event’ of slavery’. In particular, Nuti suggests the structural dimension of slavery is reflected in
‘(1) the long-term structures (e.g. economic, political, and ideological) that were in place before the beginning of slavery and under which the establishment of the institution of slavery was possible;
(2) those long-term structures, such as the creation of racial hierarchies, that sustained the institution of slavery over time during its different phases; and
(3) those long-term structures (e.g. of economic dependency, political disenfranchisement, institutional violence, cultural disempowerment, and psychological oppression) established in the United States by slavery that not only may have outlasted the abolishment of the ‘peculiar institution’ but may also keep being reproduced nowadays and be the structural conditions under which other events can occur.’Footnote 69
This account of history as both events and structure offers a valuable mechanism to recognise the political character of debates regarding the history of historical abuses including and beyond slavery, comprising those patterns of violence outlined in Chapter 2, and beyond. For Pablo de Greiff, the future of dealing with the past in transitional justice involves an examination of how ‘a problematic and unredressed past, continues to manifest itself both in the present and in the future’.Footnote 70 Emphasising and examining the relationships between historical abuses and contemporary structural injustices offer a means for contemporary living victim-survivors, advocates, and activists to argue and illustrate how the structure of particular historical injustices is reproduced in the present.Footnote 71 This approach suggests that historical abuses are not merely or primarily a ‘legacy’ passively received by subsequent generations and in need of being addressed as an impediment to social progress.Footnote 72 Instead, it enables a substantive account of structural injustice to address historical abuses within lived experience and memory, while not precluding individual, institutional, and state responsibility for specific events that occur in the context of long-term structures of historical abuses.Footnote 73
Though historical abuses cannot completely determine the shape and material outcomes of our present societies, the descendants of historically marginalised and harmed groups experience present-day forms of harm and discrimination. These outcomes suggest historical abuses have had an inter-generational impact on the nature, structure, and quality of life in the societies studied in this book. Abusive and discriminatory structures are being reproduced in the present. Life expectancy, health, and other quality of life indicators are routinely lower for Indigenous peoples in Canada, Australia, and the United States than for white settler populations.Footnote 74 Violence against Indigenous peoples remains disproportionate in the United States, Canada, and Australia, especially against women.Footnote 75 The number of missing and murdered American Indian and Alaskan Native women is over ten times the amount than the national average.Footnote 76 A Canadian police study states that Indigenous women constituted 16 per cent of all female homicides between 1980 and 2012, despite making up only 4 per cent of the female population.Footnote 77 At present, Indigenous women and girls make up 24 per cent of female homicide victims.Footnote 78
Life expectancy is also lower for African Americans compared to white Americans.Footnote 79 Edwards et al conclude that 1 in 1,000 black men and boys will be killed by police over their lifetime and between thirty-six and eighty-one American Indian/Alaska Native men and boys per 100,000 will be killed by police over the life course. Footnote 80 One in three black men will likely enter the criminal justice system at some point during their lifetime.Footnote 81 Additionally, nearly one in five black Americans have experienced some form of voter suppression in their lifetimes.Footnote 82 The sexual and reproductive rights of African American women have been infringed due to racist and discriminatory healthcare practices from slavery through the post-Civil Rights era, despite some recent improvements to ensure equitable healthcare.Footnote 83 Black women die in childbirth at three to four times the rate of white women.Footnote 84 In the twenty-three years prior to 2007, the wealth gap between African American and white households increased by $75,000, from $20,000 to $95,000.Footnote 85 Bhashkar Mazumder finds that ‘more than 50 per cent of blacks who start in the bottom quintile in the parent generation remain there in the child generation, but only 26 per cent of whites remain in the bottom quintile in both generations’.Footnote 86 White Americans have ten times the wealth of black Americans.Footnote 87 The Pew Research Center estimates that white households are worth roughly twenty times as much as black households and that whereas only 15 per cent of whites have zero or negative wealth, more than a third of blacks do. Patrick Sharkey shows that black families making $100,000 typically live in the kinds of neighbourhoods inhabited by white families making $30,000. ‘Blacks and whites inhabit such different neighborhoods,’ Sharkey writes, ‘that it is not possible to compare the economic outcomes of black and white children’.Footnote 88 Similar forms of racism persist in the United Kingdom, where police are six times more likely to stop and search black people compared to whites.Footnote 89 In 2018, about 13.8 per cent of the UK population was from a minority ethnic background, but 27 per cent of the prison population were from the same background.Footnote 90 Social and economic inequalities experienced by ethnic minorities make a substantial contribution to ethnic inequalities in health.Footnote 91
In the face of such empirical realities, how the past is understood to relate to the present is a key point of political contention across each of the contexts in this book. Some may deny the link between these contemporary realities and historical abuses, emphasising a lack of direct causation between the two phenomena.Footnote 92 Such issues may be relevant for imposing responsibility for legal liability but are merely one of many factors when the ongoing relevance of historical abuses is considered in moral or political terms. Miller notes: ‘The narration of the past justifies different and often competing positions on economic, political, and legal arrangements in the present. In the United States, the debate hinges on whether the wrongs of slavery were resolved by constitutional and political processes or if they are a continuing factor in racial inequality today’.Footnote 93 In Canada, by contrast, the past has been simultaneously embraced and obscured. Miller notes: ‘The federal government has admitted responsibility not only for the past but for the present, legally and politically conceptualising historical continuity in a way that is largely absent elsewhere. Yet among Indigenous activists and allies, there is ongoing frustration with the failure to link that admission to meaningful redistribution of resources in the present – particularly when the distribution to Indigenous peoples might involve a different distribution of resources for non-Indigenous Canadians.’Footnote 94 Similarly, Máiréad Enright argues that the Irish state is engaged in effort ‘to establish and police the boundaries of “homogenous national time”. The politics of national time underpin and sustain discourses of responsibility for historical abuse. They enable the state to corral certain historicised abuses within a distinct regulatory space and accordingly to achieve “closure”; limiting the state’s responsibility to investigate those abuses or compensate those who suffered them’.Footnote 95 Balint et al note that in Australia: ‘Initiatives designed to address the past have been undertaken as discrete initiatives unconnected to a broader and substantive justice agenda through which Indigenous and non-Indigenous peoples in settler colonial states collectively seek to acknowledge and grapple with the devastating effects of colonialism and its ongoing impact and manifestations’.Footnote 96
Across these contexts, an approach to justice that addresses the present-day consequences of historical abuses challenges the idea of a liberal democratic society as the paradigmatic end goal of transitional justice.Footnote 97 With this goal of (re)establishing liberal democracy, transitional justice is a set of practices aimed at a particular conception of society, which fails to address broader questions of historical-structural injustice.Footnote 98 A liberal conception of justice can be criticised as being inattentive to questions of structural injustice: ‘an approach that is blind to the circumstances of people is more likely to perpetuate rather than correct injustice’.Footnote 99 This failure is one of the key criticisms of transitional justice within transformative justice literature.Footnote 100 The social contract tradition aims at non-discrimination but is undermined by the cultural and historical abuses of societies and their institution, laws and practices.Footnote 101 To address the present effects of historical abuses on victim-survivors and society as a whole requires a significant reimagining of how states, churches, and societies respond to the past. To do so may require more than the formulation of legal responses to perceived social problems, particularly where the legal system may itself be a site where structural injustices are reproduced.Footnote 102
3.5 Assessing Historical-Structural Injustice and Transitional Justice
The above discussion of conceptions of structural injustice indicated that rather than focus on liabilities for past historical injustices alone, to adequately address the lived consequences of structural injustices today, accounts of structural injustice instead also emphasise that society is today burdened by historic abuses and as a result has a responsibility to address such harms and their consequences in continued patterns of alienation, domination, and harm.Footnote 103 On such an account, ‘The main way to understand the connection between historic injustice and present injustice lies in uncovering how patterns of historic injustice are reproduced in, or inform the subsequent development of, contemporary social structures’.Footnote 104 As members of the societies burdened by these inheritances of historical abuses and structural injustices, ‘we are responsible in the present for how we narrate the past’.Footnote 105 It is open for states, societies, and churches to encompass a pluralistic, contrapuntal history, examining the perspective of both domination and resistance to it.Footnote 106 Young writes: ‘A society aiming to transform present structures of injustice requires a reconstitution of its historical imaginary, and the process of such reconstitution involves political contest, debate, and the acknowledgment of diverse perspectives on the stories and the stakes’.Footnote 107 This approach aligns with Nuti’s emphasis on counter-historical justifications: ‘Counter-historical institutional justifications, which are developed in activist politics, critically examine whether and how our societies (and the transnational order) have been constructed to make an unjust history reproduce through changes’.Footnote 108
Responding to wrongdoing and assigning responsibility require re-imagining our baseline set of expectations and practices in society. Our national and religious myths must incorporate knowledge of and current and inter-generational responsibilities for past collective wrongdoing. For Young, taking our collective past of our political communities as given generates a present responsibility:
How individuals and groups in the society decide to tell the story of past injustice and its connection to or break with the present says much about how members of the society relate to one another now and whether and how they can fashion a more just future … A society aiming to transform present structures of injustice requires a reconstitution of its historical imaginary, and the process of such reconstitution involves political contest, debate, and the acknowledgment of diverse perspectives on the stories and the stakes.Footnote 109
Addressing historical-structural injustice is a necessary part of addressing transitional justice – a liberal democracy that does not address its own legacy of historical-structural injustice is an illegitimate and undesirable endpoint for any form of transitional justice. We are responsible today for reproducing systems of social control that are patriarchal, racist, and so on. We are not responsible evenly. These systems operate on (at least) ideational and material levels – those in power/privilege (who benefit from our collective burden) bear a greater responsibility to address these systems of social control. We live in societies that continue to operate with structures of power and emotion that seek to control and shape the lives of historically discriminated and harmed groups. We live in societies that continue to see it legitimate to designate the ‘other’ as a scapegoat and a social problem. Law provides some of the tools to do this and facilitates amnesia about the continuity of these processes over time and limited tools of challenge.
Responsible institutions and actors, such as states and churches, have the opportunity to explicitly narrate and practice a new national social or religious identity that embraces their responsibility for past violence and embraces a non-dual self-identity (being capable of achieving the common good, contributing to decolonisation but also being capable of organised violence).
To attempt to expand responsibility for historical abuses in this manner is ambitious, particularly if it is to be part of transitional justice. Suggestions for transitional justice to attempt more than its existing institutional menu often run aground as unfeasible in the absence of political will and pre-existing power dynamics.Footnote 110 Though existing critiques of transitional justice in transformative justice literature offer valid critical perspectives on the field, to date they do little to address how an already flawed enterprise, or its alternatives in transformative practice itself, would overcome existing structural limitations. Sharp suggests: ‘Given the exquisite complexity involved, it is just too simple to attribute the inevitable persistence of some forms of violence, domination and inequality to a penchant for apolitical and technocratic engagement, insufficient participation, top-down approaches, and other critical studies boogeymen – even as these remain serious issues to grapple with.’Footnote 111
State and church officials could use the mechanisms of transitional justice (inquiries, accountability, redress, apologies, reconciliation) to be seen to serve victim-survivors but could equally use the same mechanisms to strengthen their authority, sovereignty, and control. There is no reason to suggest this could not equally be true of a transformative justice discourse or practice. In this context, discussions of structural injustice could form part of this pattern of serving the needs of victim-survivors, including those subjected to structural injustice, but could equally be captured. Transitional or transformative justice could thus be compatible with such institutions maintaining control over the extent to which a nation or church uses the violent aspects of its past as a means to address its present and future reforms. Transitional or transformative justice could instead reproduce historical-structural injustices – and be a new site of frustration, discrimination, and re-traumatisation for victim-survivors and those affected by older patterns of structural injustice.
Transitional justice is thus a mechanism that can be used to protect the systems of power that undergird Western states and institutional churches. As a result, the paradigmatic mechanisms of transitional justice could be assessed to see whether they make a meaningful contribution to addressing questions of structural injustice. Sharp concurs: ‘even a loose exploration of how mechanisms such as tribunals, truth commissions, vetting and reparations programs, and so on might go about attempting to address a form of violence that is impersonal, indirect and unintentional would go a long way in helping to assess whether this form of transitional justice should be rejected as an improbable or infeasible alternative in a particular context’.Footnote 112
Addressing such significant harms even across diverse contexts and periods of history presents the opportunity for significant political and social rupture and change that may challenge dominant social systems and ideologies.Footnote 113 In considering the potential contribution of transitional justice to these broader processes, Clara Sandoval distinguishes between three different types of social change: ordinary change, structural change, and fundamental change. Ordinary social change refers to ‘everyday changes that align with dominant ideologies and structures in society’, even where they are the result of significant political struggle or face resistance.Footnote 114 For Sandoval, structural change may be necessary but insufficient to transform dominant ideologies and structures, giving the example of legal constitutional change.Footnote 115 Finally,
Fundamental social change occurs when various structural changes provide foundations for new dominant ideologies inspired by radically different values to those evident during the repression or conflict to flourish. Furthermore, these values must be respected, endorsed, adopted, and articulated by different political sectors and ideologies of society and be given life through different norms, institutions, education, and culture, so that they are ultimately able to affect the economic, social, political, and other conditions that permitted the conflict or repression.Footnote 116
Winter agrees that ‘transitional politics are forms of politics in which agents seek to implement fundamental changes to political norms’.Footnote 117
Balint et al note the potential contribution of transitional justice to addressing structural injustice: ‘A transitional justice framework enhanced by the notion of structural justice may also provide the theoretical resources to rethink the relation between justice, injustice, and transition and to reconsider what it means to pursue just outcomes as a society. It may prompt consideration of how justice measures could themselves facilitate a process of transition rather than simply respond to it’.Footnote 118 In evaluating the potential contribution of transitional justice, the authors ask: ‘Do such injustices simply endure manifesting as they did when inflicted; do such injustices become compounded over time, their effects exacerbated and inflamed; or, indeed, does the character of such injustices change with the passage of time, and are they altered by either their longevity or the societal failure to effectively acknowledge and address them?’.Footnote 119 On their approach, paradigmatic institutional approaches may combine with longer-term approaches to address structural injustices and be informed by non-Western, Indigenous legal frameworks.
In addressing structural injustice through changing fundamental norms, states, churches, societies, and victim-survivors have the opportunity to contribute to the material consequences of any such new national or religious identity by, for instance, re-imaging the role of sovereign authority in light of its historical misuse. This approach challenges the idealised end state of transitional justice as the pre-existing liberal market democracy. There are some emergent examples of this, for instance, in the calls to action of the Canadian Truth and Reconciliation Commission, which calls on the government of Canada to ‘[r]enew or establish Treaty relationships based on principles of mutual recognition, mutual respect, and shared responsibility for maintaining those relationships into the future’. In the same recommendation, Canada is asked specifically to ‘[r]epudiate concepts used to justify European sovereignty over Indigenous lands and peoples such as the Doctrine of Discovery and terra nullius’.Footnote 120
The pursuit of structural justice ‘requires more than acknowledgment of alienating past injustices, since the persistence of structural alienation in contemporary contexts produces a need for measures that address contemporary forms of structural alienation’.Footnote 121 Lu argues that this pursuit ‘must open possibilities for (and engage the capacities of) the oppressed to participate in the overturning of structural injustices and the work of creating a mutually affirmed social/political order, rather than assign to them the passive role of waiting for beneficiaries of historic injustice to produce just distributions by disgorging their benefits’.Footnote 122 However, Sharp is right to suggest that ‘many critical theory ideals – such as participation and local ownership – have become ritualized mantras devoid of substance after adoption by large international institutions’.Footnote 123
The emphasis of transitional justice on state-building has been matched with an ‘excessive individualism and false universalism, which may at times mask or obscure power relations within that discourse and which dominates the imaginative space of emancipation’.Footnote 124 Instead Catherine Turner suggests ‘what we can and must do is find a way to live with that past in a way that keeps us moving forward. This is only possible through ongoing critique and recognition of the inherently political nature of the choices being made with respect to the contested past’.Footnote 125
The framework put forward in Chapters 4 and 5 is that two factors may impede states and churches in engaging in transitional justice that extends to questions of structural injustice. First, states and churches wish to retain power and authority over their constituent populations and, it is argued, engage in transitional justice largely as an episodic or performative contestation of power, which ultimately returns to state or church. This is particularly evidenced across four dimensions of power experienced by survivors engaging in transitional justice responses to historical abuses. Second, the public use of emotions by state and church leaders, particularly shame, discourages society from full examining and embracing the nature of the challenge to national or religious identity prompted by examination of and reckoning with historical abuses. Rather than embrace a reality that we are both good and abusive people simultaneously, the rhetoric of shame enables society to re-cover and settle historical abuses as an exception or aberration. As a result, the transitional justice practices examined in this book reflect unrepentant justice.
3.6 Power and Structural Injustice
Existing structures and practices of power are a key impediment to address historical-structural injustice. To meaningfully address such injustice may involve addressing how power is distributed, practised, and reproduced in states, societies, and churches. For Young, social change occurs through pressure on powerful agents. Efforts to address structural injustice are embedded in contemporary economic and ideological processes, which ‘carry the effects of past assumptions, decisions and interests with them’ inevitably supporting or constraining the actions and aspirations of individuals and groups ‘even as we try to transform them.’Footnote 126 Young argues that ‘[s]ocial change requires first taking special efforts to make a break in [structural] processes, by engaging in public discussions that reflect on their workings, publicizing the harms that come to persons who are disadvantaged by them, and criticizing powerful agents who encourage the injustices or at least allow them to happen’.Footnote 127 Young notes four typical techniques used to deny the need to address structural injustice: the first is reification, or the pretence that the processes that create injustice are inevitable and unchangeable, like natural forces that cannot be otherwise. A second strategy denies connection between the individual/corporation/church/state and the broader structural injustice. A third strategy denies capacity to respond to all global or structural problems and that immediate problems deserve primacy. A final strategy suggests rather than having no connection, the actor has no responsibility to address structural injustice.Footnote 128 For Zheng, by reflecting on the ‘the specific forms of power, capital, or demands to which one is entitled in the relationship through that role, one can carve out a range of potential boundary-pushing actions’.Footnote 129 Balint et al concur: ‘The nature and power of structural injustices is traceable to the way in which they become significantly naturalised over time so that populations commonly perceive their manifestations in entrenched inequalities persistently suffered by particular groups as taken for granted’.Footnote 130 Similarly, Powers and Faden highlight the role of power in maintaining and resisting change to structural injustice:
These injustices take the form of unfair patterns of advantage and unfair relations of power, including subordination, exploitation, and social exclusion, as well as human rights violations and deprivations in well-being that contribute to and grow out of unjust social structural conditions. In our theory, human rights violations, disadvantage, and unfair power relations interact and are mutually reinforcing. They are both cause and effect of each other. Together, they are the hallmark of serious structural injustices that typically implicate multiple institutions and agents having differing degrees of culpability for the wrong that results.Footnote 131
In addressing structural injustice, transitional or transformative justice must go beyond legalistic or technocratic claims to ‘solve’ the problem but rather seek to contribute to changing national, religious, or social identity and consciousness, to incorporate awareness and acceptance of responsibility for historical abuses through reckoning with and engaging in the redistribution of power. Vasuki Nesiah argues that there is a ‘crisis of legitimacy and effectiveness’ in transitional justice due to ‘the failure to open up the hierarchies of power to accountability’ and because transitional justice processes have too often ‘left the structures of impunity intact’.Footnote 132 However, others are sceptical about transitional justice’s ability to address power structures or structural injustice: ‘in all likelihood there will always be hierarchies of power and structures of domination left intact even following a robust, progressive and longer-term approach to transitional justice. This is especially true if one takes into account more subtle forms of violence such as structural violence, whose minimisation – one cannot speak of elimination even in comparatively peaceful consolidated democracies – is the work of generations. While unintentional, there is therefore a risk that the more critical voices emphasise a matrix of power and domination left untouched by transitional justice, the less legitimate the enterprise may appear. In finding transitional justice wanting, some may come to see it as worthless. This points to the need for humility and expectations management on the part of critical theorists’.Footnote 133 Addressing power structures may therefore call for not only strategies aimed directly at power distribution and practices but also setting longer-term expectations for such fundamental social change.
3.7 Emotions and Structural Injustice
A second neglected feature of addressing structural injustice is the role of emotions. Current approaches to addressing historical abuses, as will be discussed in Part II of the book, rely on a set of institutional practices familiar to transitional justice: investigations, accountability, reparation, apology, reconciliation, and guarantees of non-repetition. Within these institutional contexts, victim-survivor testimony and participation form a key part of legitimating and constructing the processes of dealing with the past. In doing so, these institutional processes often engage the emotions of victim-survivors, perpetrators, and contemporary society, as well as engaging in legal fact-finding or political decision-making. To date, the role of emotions in transitional justice has been largely neglected, and not integrated with thinking on emotions, power, and injustice elsewhere. For instance, Judith Shklar insists that victimhood ‘has an irreducibly subjective component that the normal model of justice cannot easily absorb’.Footnote 134 David Welch similarly notes an experience of injustice provokes a significant emotional response that amplifies and radicalises the demands for a response to a perceived injustice.Footnote 135 This focus on the lived, emotional experience of victim-survivors is critical. If not, Lu notes: ‘the ideological instrumentalisation of victimhood may have little to do with acknowledging or meeting the needs and concerns of actual individuals who have suffered direct pain, injury, loss, or destruction from the violence’.Footnote 136
There is some limited consideration of emotion in structural injustice literature. Structural justice must have an emotional and affective dimension. Beausoleil notes: ‘Listening to the issue of inequality is not simply a question of comprehension but one of connecting with and being moved by what one comes to see’.Footnote 137 For Young, examining structural injustice in a manner that addresses only material conditions of inequality in context is inadequate.Footnote 138 In contrast, Nicholas Smyth critiques existing accounts of structural injustice, particularly Iris Young’s, because the ‘social connection model is far less realistic and socially effective than it aims to be. This is because the model systematically neglects the key role played by the emotions in human moral life’.Footnote 139 Smyth notes: ‘moral life in all known human cultures is pervasively regulated by backwards-looking emotional appraisals of behavior; for example, shame, guilt, pride and admiration’. Smyth notes Young’s account of reasons given as to why individuals may resist responsibility for structural injustice and asks: ‘why do agents typically perform these defensive maneuvers? The answer is clear enough: for the same reason that anyone performs any such maneuver, namely, to suppress negative emotional responses. To banish them, if not from the mind entirely, then at least from immediate consciousness. In other words, such responses are defense mechanisms against negative self-directed moral emotions such as shame or guilt’.Footnote 140 Smyth concludes: ‘it is unrealistic to expect that the deployment of the social connection model will not provoke the very emotions it seeks to avoid or move past’. He notes: ‘Our task, going forward, is to develop a theory of structural injustice that respects the critical role played by the moral emotions in human social life’.Footnote 141 Chapter 5 will examine the role of emotions in addressing historical-structural injustices.
A state or church that does not address its own legacy of historical-structural injustice is an illegitimate and undesirable endpoint for any form of transitional justice. Young states: ‘If we do not face the facts of historic injustice, we may be haunted by victims’ ghosts and destined to repeat the perpetrators’ wrongs’.Footnote 142 To address historical-structural injustice requires both specific initiatives and an inter-generational commitment to address inter-generational legacies of harm that address both the ideas and material consequences that constitute historical-structural injustices. As Miller describes: ‘Inescapably, pasts of settler-colonialism, slavery, apartheid, and genocide inform the present. What remains unsettled is whether those pasts constitute completed events, ongoing legacies, or continuous presents’.Footnote 143
This chapter has demonstrated how existing accounts of structural injustice, particularly historical-structural injustice, can be combined with existing, interactional conceptions of justice familiar to transitional justice institutions, such as investigations, accountability, reparations, and apology. This combined conception of justice provides the basis for assessing how societies and churches address their responsibility for harms and wrongs done centuries ago, and reproduced in discrimination, wrongs, and harms in subsequent generations, to present day.
This chapter has highlighted the current material needs of victim-survivors alive today and those who are the descendants of groups that have been subjected to historical abuses. Across each of the contexts studied, historical-structural injustice produces material consequences and fresh injustices in contemporary societies. The emergence of the Black Lives Matter movement in the United States, and Rhodes Must Fall in the United Kingdom, illustrates how victim-survivors, advocates, and activists seek to demonstrate the connection between violent and unequal pasts and the present. Different explanations of history are used to justify or criticise present distributions of power, resources and political, moral, and religious legitimacy.
Part II of the book will explore the potential for transitional justice mechanisms to address structural injustice. In doing so, it will explore the extent to which these mechanisms engage with questions of power and emotion as key neglected elements of structural injustice and as key sites used for resisting the profound social change required to achieve fundamental change required for transformative and structural justice. Addressing structural injustice as part of a response to historical abuses risks over burdening already imperfect institutions and practices. Instead it should encourage humbler expectations of what can be achieved through short- or medium-term legal and bureaucratic processes. Responding to widespread or systemic violence of historical abuses should be understood as an inter-generational process, especially where the violence itself is of an inter-generational character. The profound nature of the historical abuses discussed in this book warrants an expectation that it will take an equally profound change to respond meaningfully to them.
Chapter 3 argued that inter-generational historical abuses are reproduced over time in present day, for victim-survivors, for historically marginalised groups, and for the descendants of those who suffered historical abuses. Chapter 3 suggested that more powerful actors, especially those whose power was developed through historical abuses, bear the greatest responsibility for addressing historical-structural injustices today and are most likely to resist addressing such injustices. This chapter considers power as essential to understanding who is legally liable and who is socially and politically responsibleFootnote 1 for addressing historical-structural injustices and for evaluating whether and how unfair structures are reproduced in the practices of transitional justice designed to address these wrongs.
Section 4.2 will outline competing conceptions of power, preferring political scientist Mark Haugaard’s four-dimensional conception of power. Section 4.3 applies these four dimensions of power to historical-structural injustices. Section 4.4 examines the role of national and religious myths as justification narratives that maintain existing distributions and structures of power. Section 4.5 examines power as a limitation in addressing the past in transitional justice. Section 4.6 concludes by identifying that assessing the role of power in addressing historical-structural injustices is necessary but insufficient in light of the challenges facing victim-survivors, states, and churches.
4.2 Conceptions of Power
Power has been subjected to a range of conceptualisations and evaluations in the last fifty years, across several disciplines.Footnote 2 Different explanations of power have proliferated,Footnote 3 with several notable traditions forming around different dimensions of power.Footnote 4 The first view is one of power over, which is capable of reflecting an oppressive use of power as domination. The second view of power is as power to, capable of reflecting empowerment of self and others, and is a view of power emphasised and contested within feminist scholarship.Footnote 5 A third approach adds power with,Footnote 6 which ‘denotes wider collaboration between actors that facilitates joint power-to’.Footnote 7 Although some scholarship saw these as opposing approaches to power, a number of authors have combined these approaches in multi-dimensional conceptions of power.Footnote 8 Valeri Ledyaev notes that these approaches are ‘searching for different forms (faces) of power and trying to incorporate them into their conceptual frameworks’.Footnote 9
Since then, Mark Haugaard has argued there are four dimensions of power,Footnote 10 adding a re-conceptualised account of Foucault’s work on power as a fourth dimension. Haugaard’s four dimensions overlap but differ from power over, to and with, as explained below. For Haugaard, ‘the four dimensions correspond to four aspects of social interaction. The first dimension refers to the agency-energy aspect of an interaction. The second concerns the structural components. The third concerns the epistemic element of the interaction. The fourth relates to the social ontological elements of social subjects’.Footnote 11 In most social interactions, all four dimensions are present, but analytically it may be useful to separate them out. Each is discussed in depth below.
The use of power can often be exploitative, and references to power in the context of historical-structural injustices are often in this pejorative sense.Footnote 12 However, Haugaard and others maintain that uses of power have the potential to empirically be sites of either domination or emancipation.Footnote 13 Such a distinction operates where power is understood as a scalar concept, reflecting instances that are more or less dominating or emancipating.
The experience of power as either domination or emancipation across each dimension of power can be assessed through an intersectional lens, reflecting the potential for multiple forms of domination, such as patriarchy and racism, to overlap and intersect, causing distinct forms of harm to women of colour, for instance.Footnote 14 While Crenshaw’s account of intersectionality can be taken to primarily analyse multiple forms of oppression in individual interactions and exercises of power, Patricia Hill Collins notes the need for an additional account of the structural features of interlocking systems of oppression.Footnote 15 Such accounts may also benefit from emphasis on the link of privilege and domination in relationships of power.Footnote 16 Chandra Talpade Mohanty argues that an intersectional account of power should refuse to homogenise the lived experiences of women under a variety of forms of oppression.Footnote 17 This concern reflects the need for epistemic injustice to be addressed, discussed in the third dimension below. Finally, the ontological dimensions of power, associated with the work of Michel Foucault, have also been adapted and critiqued to consider overlapping forms of oppression.Footnote 18 These dimensions of power and their intersectional application offer a complex but thorough way of conceptualising power and evaluating its role in historical-structural injustices, and in modern-day responses through transitional justice.
4.3 Dimensions of Power and Historical-Structural Injustice
4.3.1 First Dimension of Power: Agency
The first dimension of power is its exercise by individuals. In this dimension of power, compliance with a legitimate exercise of ‘power over’ by one agent, may enable the other agent to exercise their ‘power to’, for instance, compliance with a road traffic police officer enables road users to exercise their power to use an ordered traffic system.Footnote 19 In contrast, where the individual exercise of power is not mutually empowering, it may constitute domination, where A gains at the expense of B.Footnote 20 In considering the individual’s exercise of power, Haugaard notes that ‘the three most significant power resources are violence-cum-coercion, authority and material-cum-economic resources’.Footnote 21 He distinguishes between acts of violence, from coercion, where the threat of violence is used to ensure compliance.Footnote 22
As discussed in Chapter 2, historical-structural injustices constitute significant acts of violence. Feminist scholars have emphasised the role of power and domination in rape.Footnote 23 Several inquiry reports note that child sexual abuse constitutes an inherent and abhorrent abuse of power and act of violence, given the power imbalance between child victim and adult perpetrator.Footnote 24 The racist violence of slavery, Jim Crow, and modern-day racial violence in the United States have been analysed as ongoing forms of domination.Footnote 25 Lynching as a communal and group form of violence depends on the power of numbers and public endorsement.Footnote 26 Settler colonial violence can be understood as not only biopower and an ontological form of power, discussed in the fourth dimension below, but also in power expressed in direct violence and coercion.Footnote 27
A second form of agency relates to the role of authority. Law and religion play a particular role in creating and maintaining authority. Law purports to render conduct non-optional, which enables it to perform a function in guiding individual conduct.Footnote 28 Law’s claim to authoritatively render conduct obligatory is one of a state’s primary means of changing perceptions, behaviours, and attitudes.Footnote 29 Similarly, religion seeks to use charismatic authority, related to individual roles of priests, clerics, and other religious leaders, and the authority of scripture, such as the Bible.Footnote 30 Steve Ogden argues that in institutional Christianity, church leadership see themselves as divinely authorised through their own theological and epistemological interpretations of scripture and tradition.Footnote 31 Richard Sipe et al emphasise that Roman Catholic clerical culture operated out of blind obedience to the authority of superiors and led to a culture of malignant narcissism that facilitated and covered up abuse.Footnote 32 The role of religious authority is noted in existing inquiries into historical abuse, as leading to ‘exaggerated levels of unregulated power and trust, which perpetrators of child sexual abuse were able to exploit’.Footnote 33
Finally, agents exercise power through economic resources,Footnote 34 which can both be used coercively as a form of domination and also have a communicative component, reflecting a message regarding the legitimacy of the distribution of economic resources. Existing studies demonstrate significant political, economic, and social gain to empires, settler colonial states, and churches and religious orders involved in the expansion of empires, the process of transatlantic slavery, racial discrimination, and the institutionalisation of social groups in the eighteenth and nineteenth centuries.Footnote 35
Power as a form of individual agency is important to establish individual liability and responsibility but may be challenging in the context of historical-structural injustices. Lukes notes that distributing responsibility between individual agents and social structures impacts how a society conceptualises ‘the link between power and responsibility of both past and present actors’ for prior wrongdoing.Footnote 36 Placing responsibility primarily or exclusively on either long-dead individuals or defunct authority, particularly historical authorities, also has the effect of relieving contemporary individuals and societies from more thoroughly examining their own responsibility to address injustice.
4.3.2 Second Dimension of Power: Structure
A second dimension of power is its role in the creation and maintenance of social, political, legal, and religious structures. Bachrach and Baratz define structural power as where: ‘A devotes his energies to creating or reinforcing social and political values and institutional practices that limit the scope of the political process to public consideration only of those issues that are comparatively innocuous to A’.Footnote 37 Iris Young defines a structural dimension of power as where actors may suffer ‘systematic threat of domination or deprivation of the means to develop and exercise their capacities’ as result of multiple widespread social processes that are not controlled or directed by single agent.Footnote 38 For Clarissa Hayward, ‘structural power’ is ‘institutionalized, objectified, internalized as motivational systems’, and embodied in relatively enduring dispositions.Footnote 39 Hayward notes that structural power is particularly difficult to change due to its institutionalisation and reproduction over centuries.Footnote 40
Haugaard distinguishes between ‘structural conflict’, which concerns conflict of the nature of this reproduction, and ‘structural bias’, which concerns the unfair possibilities created by a particular form of structure.Footnote 41 Structures have the function of organising issues into law, politics, or the private sphere, or excluding them from consideration completely. As a result, a conflict regarding historical-structural injustices is a fundamental conflict about the social order and concerns whether its structures and their reproduction are normatively legitimate and appropriate.Footnote 42 In a conflict about structure, ‘the rules of interaction are contested because the social structures that underpin ordered interaction are in dispute’.Footnote 43 As a result, the interaction of agency and structures represents one of the key sites where power affects the potential for structural injustice to be addressed.
Resolving conflicts about the exercise of power as agency alone are conflicts within a structure, whereas conflicts regarding historical-structural injustice also involve conflict about a structure. In this regard, Stewart Clegg distinguishes between the ‘episodic aspect of power, which focuses upon specific outcomes, and dispositional power, which constitutes the structured rules of the game, defining the dispositions of actors over time.Footnote 44 This distinction makes it possible to recognise that, for instance, within a male-dominated power structure, ‘episodic power may, under certain conditions, be exerted by specific women whether through occasional access to power over or through power to’, without affecting underlying patriarchal structures.’Footnote 45 In the contexts of historical abuses, individual acts of violence, coercion, and claims to authority existed and operated alongside structural constraints in legal political and religious systems over time. Foucault suggests that structures continue patterns of violence and domination by other means.Footnote 46 For instance, as discussed in Chapter 2, after the US Civil War, attempts to reintroduce new forms of discrimination and marginalisation of black Americans reflected attempts to exclude blacks from the structures of power.Footnote 47 Wolfe’s account of the structure of settler colonialism is worth repeating: ‘Negatively, it strives for the dissolution of native societies. Positively, it erects a new colonial society on the expropriated land base … invasion is a structure not an event’.Footnote 48 In addition, structural dimensions of power will impact on how historical-structural injustices are addressed today. Specific elements of legal systems relevant to transitional justice, such as law’s relationship to time, will be explored in Part II of this book for their capacity to confirm structure or offer the potential to de-structure existing power biases and structures.
4.3.3 Third Dimension of Power: Epistemic Elements
Steven Lukes is credited with the development of a third dimension of power, at an epistemic level.Footnote 49 Haugaard argues that there are five aspects of this third dimension of power: practical knowledge, natural attitude, reasonable versus unreasonable, reification, and truth versus Truth.Footnote 50 Conflicts regarding epistemology concern the idea that ‘social reality is made, therefore it can be unmade’.Footnote 51
Epistemic power is particularly relevant to historical-structural injustices in at least three ways. First, the process of reification, whereby the social constructedness of structures is denied,Footnote 52 is of particular relevance to historical-structural injustices, where there is often the combined denial of its occurrence and legitimation of a resultant legal, political, or religious order. Balint et al note: ‘The nature and power of structural injustices is traceable to the way in which they become significantly naturalised over time so that populations commonly perceive their manifestations in entrenched inequalities persistently suffered by particular groups as taken for granted.’Footnote 53 Walter Benjamin observes that ‘positive law demands of all violence a proof of its historical origin, which under certain conditions is declared legal and sanctioned’.Footnote 54 Costas Douzinas observes similarly that the sanctioning of historical violence through legal instruments allows past violence to be forgotten.Footnote 55 This role of law in structuring and portraying historical violence as legitimate, or failing to portray it and rendering it invisible in national legal or political consciousness, contributes to explaining why the abuses considered in this book are only being addressed in earnest in recent years, several decades after their commission. In particular, settler colonialism can also be understood to centrally involve a denial and disavowal of historical wrongdoing.Footnote 56 Lorenzo Veracini argues that ‘settler colonialism obscures the conditions of its own production’Footnote 57 and instead constructs a mythical role for original violence: ‘even when settler colonial narratives celebrate anti-indigenous violence, they do so by representing a defensive battle ensuring the continued survival of the settler community and never as a founding violence per se’.Footnote 58 In this context, law plays a key function. Peter Goodrich writes that a mythical legal history provokes ‘an escape from memory’.Footnote 59
Second, within Judeo-Christian traditions, religion often functioned as a form of reification, deriving from a foundational distinction between the sacred and profane.Footnote 60 Jeffrey Alexander argues that even modern secular social systems remain significantly structured along a sacred versus profane distinction.Footnote 61 Historical-structural injustice evidences persistent ‘othering’ across diverse time periods and contexts. Ogden defines ‘othering’ as a ‘heuristic term used to describe the process of marginalization on the basis of difference’.Footnote 62 Powers and Faden note othering is a key dimension of structural injustice: ‘structural injustice all too often arises out of and persists because of an explicit or implicit judgment that some lives matter less than others’.Footnote 63 Schwartz concurs that othering is an inherent violent act that also constitutes identity: ‘Violence is not only what we do to the Other. It is prior to that. Violence is the very construction of the Other.’Footnote 64 The non-white, non-male, non-adult, non-Christian person is described variously as other: as savage, as moral dirt, as in need of salvation, and so on.
A third form of power in this epistemic dimension is the capacity for testimonial and hermeneutical injustice, understood as the lack of concepts necessary for the articulation of experiences of the oppressed.Footnote 65 Gayatri Chakravorty Spivak described epistemic violence as when subaltern peoples are prevented from speaking about themselves or their own interests because others claim to know what those interests are.Footnote 66 Miranda Fricker situates such injustices within a conception of social power that may be exercised by individual agents or which may operate structurally.Footnote 67 She distinguishes between testimonial and hermeneutical injustice: ‘testimonial injustice is caused by prejudice in the economy of credibility; and that hermeneutical injustice is caused by structural prejudice in the economy of collective hermeneutical resources’.Footnote 68 For Fricker, testimonial injustice occurs ‘if prejudice on the hearer’s part causes him to give the speaker less credibility than he would otherwise have given. Since prejudice can take different forms, there is more than one phenomenon that comes under the concept of testimonial injustice’.Footnote 69 In contrast, hermeneutical injustice arises where ‘the social experiences of members of hermeneutically marginalized groups are left inadequately conceptualized and so ill-understood, perhaps even by the subjects themselves; and/or attempts at communication made by such groups, where they do have an adequate grip on the content of what they aim to convey, are not heard as rational owing to their expressive style being inadequately understood’.Footnote 70 Fricker notes: ‘testimonial injustice, in which someone is wronged in their capacity as a giver of knowledge; and hermeneutical injustice, in which someone is wronged in their capacity as a subject of social understanding’.Footnote 71 Jugov and Ypi note that the distinctive nature of structural injustice, and how it is replicated over time, ‘renders agents operating within such structure vulnerable to epistemic opacity when it comes to observing the persistence of injustice’, affecting both those who benefit from structural injustices and those harmed by them.Footnote 72 Epistemic injustice is deeply gendered in nature, with the distinct knowledge and experience of women ignored, marginalised, or mis-understood across diverse contexts.Footnote 73 Berenstain et al note:
Colonization and land dispossession would not be possible without the violent disruption of Indigenous knowledge systems and ongoing organized attempts to disrupt their survival. Embodied ways of knowing, spiritual ways of knowing, and land-based ways of knowing – these are all forms of knowledge that are violently foreclosed in the name of settler futurity.Footnote 74
For Charles Mills, epistemic injustice arises in the United States in a racial contract which regards white men as ‘generic’ knowers collectively and deems those it categorises as non-white as incapable of intellectual achievement and progress.Footnote 75 Mills describes an ‘inverted epistemology’ in which those who have created injustices remain largely ignorant of how they benefit from them.Footnote 76 Similarly, children have been historically subjected to a lack of testimonial credibility,Footnote 77 resulting in some instances in a lack of response when they disclosed abuse to adults. Epistemological power is a key site where knowledge, truth claims, and lived experiences can be heard and validated or ignored, denied, or suppressed. In this regard, it can form a key component of historical-structural injustices or be a site of opposition to such domination and harms. To address epistemic injustice at these structural and interpersonal levels will require not merely the practice of epistemic virtues aimed at counteracting these injusticesFootnote 78 but also the practice of political, media, and educational institutions that can affect broader structures.Footnote 79
4.3.4 Fourth Dimension of Power: Social Ontology
The fourth dimension concerns the construction of individuals into social subjects.Footnote 80 Foucault argues that modernity involves a shift in the use of power from coercive domination alone to one where such power coexists with a constitutive or disciplinary power.Footnote 81 From an original Christianised form of public execution to the use of closed institutions as a form of punishment and discipline, Foucault argues that power controls and shapes individual bodies, and illustrates this through an examination of disciplinary institutions, such as prisons, and later through a society-wide concept of biopower.Footnote 82 For Foucault, the terms ‘bio-politics’ and ‘governmentality’ describe new forms of governing that arose in the mid-eighteenth century that were closely allied with the creation and growth of modern bureaucracies and institutions. In his later writings, Foucault employs the term ‘bio-power’ to describe how standards of normality are fostered in society as a means of social control, rather than through overt control through institutions.Footnote 83 Biopower is about normalisation,Footnote 84 the construction of what is ‘normal’ and the threat of punishment for what is deemed abnormal.
Similarly, in his account of nationalism, Ernest Gellner argues that key to the emergence of the modern state was not simply a monopoly upon violence and taxation, equally paradigmatic was the attempted monopoly upon socialisation, through control of education, particularly disciplinary education.Footnote 85 The modern state attempted to monopolise education and impose a common culture on all society.
Finally, Norbert Elias argues that modernity involves a change from obedience based upon coercion alone to compliance based upon self-restraint, understood as the ‘civilizing process’,Footnote 86 a term used to create authority and structures of power. For Elias, the civilising process emphasises the construction of social prestige and hierarchy through a focus on the appearance and compliance of bodies, and thus includes but extends beyond institutional contexts.Footnote 87 The account given by Elias can be understood as an individual-focused, bottom-up approach to the internalisation of a socially constructed world, in addition to top-down and explicit processes of modernisation by nation states.
Historical abuses sit at the intersection of the use of power as domination in historical contexts and the normalisation of such power relations as a structure in the present. On these accounts, closed and coercive institutions seem to play a particular role in the construction of liberal freedom and modern society.Footnote 88 Haugaard notes: ‘For those who do not internalize 4-D power willingly, coercive disciplinary institutions remain.’Footnote 89 Una Crowley and Rob Kitchin suggest that in post-independence Ireland power was used to ‘mould and police the sexual practices of its citizens and create a sanitised moral landscape’.Footnote 90 Diarmuid Ferriter notes: ‘Control of sex and sexual relations was central to the creation and maintenance of power and the social order, as recognised by both Freud and Foucault, and, in the Irish context, the attitudes adopted by the new class of farmers and the desire to control marriage, supported by the Catholic Church, was a reflection of such power.’Footnote 91 Scott Morgensen similarly notes that settler colonialism as a form of historical-structural injustice ‘can be denaturalised by theorising its constitution as biopower, as well as how it in turn conditions all modern modes of colonialism and biopower’.Footnote 92 Ladelle McWhorter similarly asserts that both race and gender arise within the same ‘normalizing disciplinary power/knowledge networks that arose in the early nineteenth century as means of managing individuals in large groups, and the biopower networks that arose from the nineteenth through the mid-twentieth centuries as large governmental systems augmented and intensified their control over populations’.Footnote 93
Historical-structural injustices occurred in widespread and systemic fashions and are reproduced in present day in a manner that affects large sectors of society, including the descendants of historically abused groups. The four dimensions of power provide a basis for analysing who benefits and who is harmed from these injustices, in a manner that enables a shared and integrated assessment of responsibility. Both individual uses of power by agents and the confirmation of power by existing structures of states and churches can be seen as sites of responsibility. In addition, the third and fourth dimensions of power demonstrate that historical-structural abuses can be evaluated not merely in interactive or structural terms but also in terms of individual and structural knowledge and the construction of social subjects in society.
Though helpful to separate analytically, a single interaction within the context of historical abuses can reflect multiple dimensions of power simultaneously. For instance, an individual instance of child abuse within a closed institution represents (i) the abuse of power at an individual level of the perpetrator; (ii) a structural abuse of power where the nature and environment of the closed institution placed the child in a position of risk and particular vulnerability to abuse; (iii) a situation where the child may be subject to epistemic injustice in the abuse being denied, justified, or rationalised; and (iv) in being conceptualised as ‘moral dirt’ or inferior based on their status and potentially contributing to the eradication of the child as a First Nations or Indigenous person and assimilating them into a settler society. These four dimensions thus thoroughly reflect the material and ideational dimensions of power and its capacity to cause harm in the context of historical-structural abuses. However, the four dimensions of power may also be involved in maintaining and legitimating existing distributions and structures of power that have their origin in historical violence. In particular, the role of power can be assessed in its contribution to fostering and maintaining national and religious myths as a source of justification and legitimating for the contemporary legal, national, and religious state of affairs.
4.4 Power and National and Religious Myths
Part of the resistance of existing power structures and actors to addressing historical abuses may arise from the challenge that doing so poses to myths or self-images of states and church institutions and identities. Clarissa Hayward identifies the role of justification narratives as a force that maintains existing distributions and structures of power. For Hayward, when such justification narratives ‘are institutionalized, they constrain and enable action by shaping incentive structures. When they are objectified in material form, they constrain and enable action through practical/corporeal experience’.Footnote 94 National and religious myths seem to function as these narratives to justify (ignoring) the historical-structural abuses of the nation and churches and sustain and structure society in such a way that inhibits critique of the myth. Milan Kundera wrote, ‘The struggle of man against power is the struggle of memory against forgetting.’Footnote 95
Gérard Bouchard defines a myth as ‘a collective representation that is hybrid, beneficial, or harmful, imbued with the sacred, governed by emotion more than by reason, and a vehicle of meanings, values, and ideals shaped in a given social and historical environment’.Footnote 96 He notes that myths are typically reified, taken for granted, and avoid being questioned.Footnote 97 For Roland Barthes, myths reify and present the particularities of history as natural, ‘making contingency appear eternal’.Footnote 98 In doing so, myths complicate and distort our understandings by adding a further layer of meaning to the form where they are presented.Footnote 99 Walter Hixson notes that myths are central to the functioning of settler colonies in particular: ‘for the settler colony to establish a collective usable past, legitimating stories must be created and persistently affirmed as a means of naturalizing a new historical narrative. A national mythology displaces the indigenous past … Becoming the indigene required not only cleansing of the land, either through killing or removing, but sanitizing the historical record as well’.Footnote 100 In these ways, myths function both as a form of epistemic injustice, silencing alternative narratives regarding the past, and as a form of social ontology, by constituting national identity and sentiment wrapped in myth and seeking to displace other identities.
National and religious myths have been used to justify violence on the basis of perceived differences between Europeans and Indigenous peoples, between races, and between men and women. Religion, Christianity, and the Bible are central to the national myths of Western societies, even after secularisation.Footnote 101 In particular, the myth of a chosen people or nation can be traced to the Hebrew Bible or Old Testament, originally for the people of Israel. Rosemary Ruether Radford notes: ‘Early Christianity denationalized, universalized, spiritualized and eschatologized these ideas of an elect nation and its future hopes. God’s chosen people were no longer the Jews but the Church’,Footnote 102 giving rise to the pursuit of Christendom discussed in Chapter 2. Competing imperial and colonising powers later employed this myth, each claiming to be God’s chosen people, converting the newly discovered ‘pagans’ to Christianity as mandated by the Bible, seeking to bring about the ultimate redemption of the earth.Footnote 103 Such national, imperial, and religious myths form part of the structure of settler colonialism: the settler leaves their land of origin, arrives in and ‘settles’ a new land, and transforms it from savagery to ‘civilisation’ in a process of irreversible ‘progress’.Footnote 104 There are distinctive variations of national myths across the jurisdictions studied.
The English defined themselves ‘for colonial purposes as an elect people over the Irish, considered as a “non-people”’ and later extended this logic to enable the colonisation of territories worldwide, on the basis of control of non-white and non-Christian bodies’.Footnote 105 Krishan Kumar argues that across a wide variety of English cultural myths, the experience of the rise and fall of empire over a thousand years indelibly shapes English and British myths and national identity.Footnote 106 He notes: ‘The imperial experience gave England a sense of itself as something more than a mere nation. It developed a “missionary” outlook, geared to purposes and causes – “Commerce, Christianity, and Civilization,” … that took it into the wider world beyond its borders’.Footnote 107 Kumar notes that the ‘Whig myth of English history’ in the seventeenth century advanced the ‘stadial theory of progress, whereby societies advanced successively through stages of development, from “savagery” to “civilization”, reflecting “England’s rise to freedom and greatness” and its entitlement to impose these standards of civilization across the world’.Footnote 108 As the British Empire ended, myths emerged about the orderly ‘transfer of power’ from the imperial capital to national elites.Footnote 109 Robert Gildea suggests that ‘the pain of the loss of empire has resulted in attempts to conjure up new fantasies of empire which in turn reinforce colonial divisions in contemporary society’.Footnote 110 Similarly, Paul Gilroy suggests that Britain struggles to reconcile its self-identity as victors over Nazi Germany, as being morally upright when facing murderous racism and fascism, with its own legacy of imperial violence.Footnote 111
American myths have their origin in European myths of chosenness and colonisation, including English myths. Avihu Zakai has argued that there were two distinct models of the elect nation, one predicated on expansion from a base of divine election to a larger empire;Footnote 112 another, developed by the Puritans, where European nations had sinned and lost their election, and the true people of God were called to exodus in new territories.Footnote 113 For the Puritans and other settler colonialists, the notion of being a chosen nation carried the ‘assumption of entitlement’ to expand, to colonise, to bring Christianity to non-Christians, and to drive away competitors of other faiths and denominations.Footnote 114
American myths continued in the US revolution and foundation of the federated state. The revolutionary United States is founded on a contradictory myth. It is first founded on a critique of Europe and England as corrupt, religiously intolerant, and unequal. In reaction, the new American nation would be egalitarian, democratic, a ‘new Jerusalem’, and reflective of a new stage of divine election in the eyes of Protestant clergy.Footnote 115 Bouchard notes: ‘The consciousness of being founders, the feeling of creating a superior nation without historical precedent, gave substance to a veritable paradigm of new beginnings. Here, there was no cultural cringe but, rather, a providential mission, a “manifest destiny” (as John O’Sullivan of New York declared in 1845)’.Footnote 116 Ian Tyrell suggests the myth of American exceptionalism is built on a set of more specific myths and has adapted over time to add new features: ‘In addition to a successful “revolution,” there is the assumption of small government or laissez-faire as an American tradition; equality of opportunity; the “melting pot” for immigrants, a theme linked to material progress and abundance; the availability of “free” land in the “West” as the basis of abundance and opportunity; political and religious freedom; and anti-imperialism and anti-colonialism’.Footnote 117 However, the myth remains contradictory: despite claiming to be based on a universal ‘rights of man’, this meant only white Anglo-Saxon Protestant males and was never intended to include women, Native Americans, or African slaves,Footnote 118 and is blind to the violence and harms done in establishing the state and expanding the frontier. The failure to name and reconcile this contradiction continues to shape US national identity.Footnote 119
Paulette Regan articulates the Canadian myth of the ‘benevolent peacemaker’, in which settlers used British law to peacefully transform the land and its inhabitants into a civilised society.Footnote 120 The peacemaker element of the myth distinguishes it from American myths of settlement by violent conquest of the frontierFootnote 121 and reenforces Canadian identity as compassionate, caring, and committed to diversity and multiculturalism.Footnote 122 Thobani argues that Canadians use the process of racial othering to construct an identity of ‘exalted subjects’ who are superior to First Nations peoples and non-white immigrants but do so through peaceful, legal, and multiculturalist means.Footnote 123 Eva Mackey describes the ‘benevolent Mountie myth’, which frames the expansion of Canada as peaceful, law-abiding, and well intentioned and reinforces a myth of ‘national tolerance’ as central to Canadian national identity.Footnote 124 Similarly, Gina Starblanket argues that Canadian treaties with First Nations peoples have been treated in mythic terms as transferring land to Crown control and by which First Nations peoples surrendered not merely land but their powers of governance.Footnote 125
In Australia, a fictional myth of terra nullius viewed Australia as unowned, with First Nations peoples as unproductive and without possession of the land. This combined with a religiously motivated desire to pursue the ‘civilisation’ of the continent. Joanne Faulkner notes: ‘Rather than admit the violence by which the British ‘settled’ the continent, Australians throughout their history have repeated “terra nullius” as if it were a serenity mantra.’Footnote 126 These myths established and legitimated the settler colonial structure of Australia and the subsequent violence and abuses documented in Chapter 2. In addition, subsequent Australian myths emphasise the distinctive nature of Australia from Britain, such as myths of ‘mateship’.Footnote 127 Russel Ward argued that the origins of Australia’s national identity were to be found in the anti-authoritarian and egalitarian ethos of convict society, giving rise to a collectivist concept of mateship in a classless society.Footnote 128 In the twentieth century, Australian myths of national character emphasised and developed as a result of the ANZAC involvement in World War I.Footnote 129 The combination of myths of terra nullius and rugged individualism contribute to debates regarding modern national identity.
Independent Ireland presents a post-settler colonial context with a heightened role for the Roman Catholic Church and its religious orders. In this context, a nation and church once themselves subject to conquest and discrimination, on the establishment of the Irish Free State, chose to consolidate and expand the process of institutionalisation that had begun under British rule, continuing to condemn the poor, women, and children, owing to an increasingly assertive Catholic quasi-theocratic rule and the poverty and inexperience facing the new state. In Ireland, after the establishment of the Irish Free State in 1922, church and state authorities engaged in a process of nation-building in pursuit of an imagined nation: ‘a nation of Irish Catholic virtues without the unnatural sexual vices that were seen by Free State ideologues, lay and clerical, as corrupting the rest of the world’.Footnote 130 This process enabled the continued use of institutions that predated the Free State and accelerated the identification of the Catholic Church and Catholic morality as synonymous with Irishness.Footnote 131 Enright writes: ‘The new Irish state was built on an ideal of reconciliation of governmental power to religious precept, which promised to create a well-regulated, virtuous, prosperous and presumptively masculine nation. Its terrible failure was apparent throughout the twentieth century in a quotidian experience of physical violence, shame and sacrificial destruction of lives … Belief in the good faith of law and religion was duly undone’.Footnote 132
Across these national contexts, the national and religious myths share a common feature: a belief in the value of redemptive violence,Footnote 133 where violence and social control are permissible because of the broader social value that the violence achieves. Walter Wink notes that this myth is pervasive in Western culture and is central to cultural depictions of the solutions to conflict.Footnote 134 Wink notes that Christianity plays a central role in maintaining this myth of redemptive violence, functioning as a shell that empties Christianity of its prophetic legitimacy to criticise the societies in which it operates and instead is ‘manipulated to legitimate a power system intent on the preservation of privilege at all costs’.Footnote 135 The histories and origins of the states and churches in this book are deeply violent in nature. Failure to address the past and its impact on the present only serves to legitimate and sanctify this violence and continue the present deployment of the myth of redemptive violence.
4.5 Power as a Limit to Addressing the Past
Power plays a key role in the creation and reproduction of historical-structural injustice across the four dimensions examined above. Transitional justice necessarily engages with power and as a result creates risks that its practices can be used to create new forms of harm for victim-survivorsFootnote 136 or reproduce historical-structural harms itself. Nagy writes: ‘In the determination of who is accountable for what and when, transitional justice is a discourse and practice imbued with power.’Footnote 137 McAuliffe argues that ‘the extent to which theories of transitional justice do not grapple with these profound complexities of elite power and wealth retention suggests the limits of the field’s utility for catalysing emancipatory change’.Footnote 138
A number of key features of transitional justice structure its relationship to power. First, the role of victim-survivors in transitional justice institutions can represent mere instances of episodic power through agency or, in more radical approaches, could lead to significant changes in the structural relationship between victim-survivors and the state. David Taylor constructs a typology of victim-survivor participation, reflecting both direct and indirect forms of participation.Footnote 139 The most direct, active form of participation in a transitional justice mechanism can be understood as full empowerment, where ‘victims would participate at each stage of a transitional justice mechanism – from conception to design to implementation – as decision-makers, with real decision-making power. Powers are thus conferred on victims, with corresponding obligations on state and/or international implementing authorities to give form to these powers’.Footnote 140 According to Arnstein, anything other than full empowerment can result in token participation or empty ritual.Footnote 141 Lundy and McGovern argue that participation in transitional justice can be most successful when it involves ‘co-generative dialogue’ as a result of the ‘transfer of power’ in decision-making processes.Footnote 142 They recognise that participation has other challenges – ‘who the locals are, who speaks for whom, and what exactly participation means’, as well as the ‘wholesale valorization of “insiders” to the exclusion of “outsiders”’.Footnote 143 Such an approach may not only involve survivors as agents experiencing empowerment in the context of particular institutions or practices but may also extend beyond that to affect broader structural features and lead to a more sustained engagement and empowerment of survivors or historically marginalised communities.
In contrast, survivor engagement may take the form of collaboration: ‘Victims and affected communities must be consulted by the implementing authorities, but are under no obligations themselves to participate. The process is in part extractive, with victims providing input, but the process preserves the decision-making power in the hands of the authorities.’Footnote 144 Third, participation can also take lesser forms such as the provision of information, including witnesses at TRCs or criminal trials.Footnote 145 Finally, Taylor extends the typology of participation to include indirect forms of participation, involving victim-survivor representation through advocacy or legal representation.Footnote 146 These forms of survivor engagement represent at best episodic and agency-based forms of power and would likely struggle to affect broader structural injustices and harms.
Hamber and Lundy critique the existing transitional justice practices on victim-survivor empowerment: ‘Notwithstanding a general universal commitment to the principle of victimcentredness, in practice, full participation is often superficial. Victims are primarily still seen as “objects” in TJ with little power to influence outcomes … Victim participation in TJ therefore remains an aspiration rather than a reality’.Footnote 147 Robins and Gready similarly criticise limited existing roles for participation as nominal or instrumental, offering ‘little or no agency in challenging power relations or in determining what mechanisms occur or how they are implemented. They have no transformative potential for victims’.Footnote 148 As a result, transitional justice processes may reflect an episodic and irregular exercise of power by victim-survivorsFootnote 149 and would struggle to address the particular challenges of historical-structural injustices, where the structures are called into conflict.
Secondly, transitional justice mechanisms risk confirming the social structures in which they operate, where victim-survivors accept the terms of the debate set by the state. In transitional justice mechanisms, especially in the context of historical abuses considered in this book, there is a conflict about what type of conflict is taking place. State and religious institutions want to treat addressing the past as non-structural disputes, concerning interactions between individuals and perpetrators and, perhaps, institutional responsibility. This is explored more fully in Part II, across inquiries, litigation, and redress especially. In contrast, some victim-survivors and advocates recognise the potential and need to address the conflict not only at individual but also at structural levels, particularly in the settler colonial context, or in examining institutional racism, misogyny, or other forms of structural violence. Transitional justice mechanisms have the potential to change or transform the ideas and beliefs of people regarding the institutions and structures that seek legitimation and claim authority. Dealing with the past and highlighting wrongdoing as intimately linked to the construction of the state and church may render their ongoing claims to authority unreasonable and illegitimate. Addressing historical-structural injustice may require that some forms of power and some claims to authority and legitimacy – such as being a legitimate settler colonial state – must be taken off the table. They cannot be legitimated, no matter how well intentioned or perfected with time and resources. Instead, to effectively respond to violence, coercion, and claims to authority over time, the structures need to change to redistribute and reimagine the nature of the institutions and their use of power.
Third, transitional justice may constitute a site of significant epistemic injustice that may exclude or marginalise the voices, knowledge, and preferences of survivors in the construction of the truth about the past and its implications for the present. For instance, Máiréad Enright and Sinéad Ring suggest that in Ireland ‘the legal responses to victim-survivors enact a refusal to listen (testimonial injustice) or to alter the conditions under which victim-survivors can be heard (hermeneutical injustice)’.Footnote 150 They suggest the Irish state is ‘benefitting from and continuing the prejudicial exclusion of victim-survivors from participation in the spread of knowledge about Ireland’s history of abuse of marginalized women and children’.Footnote 151 Epistemic injustice is explored across Part II of the book.
Fourth, transitional justice performs an ontological function, by shaping the definition of who is a victim-survivor and the nature of the ‘transition’ involved for a society. The definition of victim and the creation of sub-categories of victim, such as ‘innocent’ and ‘non-innocent’, reflect deeply political forms of power. In addition, state-operated transitional justice institutions run the risk of constructing an ‘imagined victim’Footnote 152 who does not challenge the state’s transitional justice responses. Balint et al note that failure to recognise victimhood is itself a form of othering and violence.Footnote 153
Similarly, Ratna Kapur notes that the idea of transition may promote a linear and progressive conception of time and history that may operate as a means of exclusion: ‘suggesting that the “post” in postcolonial does not merely mark the end of the colonial moment’.Footnote 154 Balint et al share this concern suggesting transitional justice is presentist in its concerns: ‘Transitional justice assumes too a linear notion of time as progress, in which the past and the future are seen as separable and successive instead of intertwined and co-implicated. This makes it difficult for transitional justice to acknowledge and hence redress the enduring structural arrangements that may have resulted in past as well as present injustice and the ongoing effects of past inequities on present and future generations’.Footnote 155
However, Winter suggests that viewing transitional justice as domination may result in a ‘just so’ account: ‘the group in question is always occupying the “dominant” position (and indeed are identified as a class because they are dominant), it is always the case that any policy can be described as “functional” for the continuance of domination. Even when the state responds to a radical demand, such as the demand for apology and pecuniary redress, the state’s response is always explicable as a way of maintaining an elite “power base”’.Footnote 156 In his view, such a critique is infallibly sceptical.
Instead, however, it should be possible to conceive of more or less oppressive uses of power in the name of transitional justice, rather than seeking some ideal or neutral use of power.Footnote 157 Rather than aiming at infallible scepticism, the hope in the following chapters of this book is to illustrate whether and how less oppressive forms of transitional justice may be pursued in addressing historical abuses.
The definition and role of power are politically significant as they enable us to ascertain whether and how individuals can exercise their own choices,Footnote 158 and whether and how those choices are limited by broader structural, epistemic, or ontological forms of power. Changes in the distribution of power across these four dimensions are central to addressing historical-structural injustices, which have coalesced to form national and religious myths that support the existing distributions of power and modern national and religious identities. However, merely naming the dimensions of power and their role in reproducing historical-structural injustice and in inhibiting the work of transitional justice is foreseeably insufficient. The experiences of addressing the past in the countries and contexts of this book demonstrate that those in power and who benefit from power are, whether consciously or unconsciously, invested and attached to their present circumstances, privilege, and position. Social norms and reification present existing power dynamics as natural and inevitable.Footnote 159 To more fully unpack the reasons for resistance to addressing and redistributing the structures of power, it is necessary to examine the role of emotions in historical-structural injustices and in dealing with the past.
Emotions are a central but under-appreciated element of historical-structural injustices and the potential and limits of modern-day responses such as transitional justice. Dealing with the past gives us the opportunity to address not only what we think but also what we feel about past violence. In this context, emotions function as a mechanism by which states and churches allow victim-survivors to exercise agency within the structure of legal and political institutions and within particular national emotional climates. Within these structures, emotions operate to provide the symbolic and public means by which the states and churches themselves seek to respond in kind in addressing their legacies of gross violations of human rights. In doing so, transitional justice can affirm or rework national and religious myths as sites of practical knowledge and felt experiences. An effective use of emotions in myths can challenge purely triumphalist conceptions of the nation or religion and replace them with more mature accounts that recognise the fallibility of state and churches. In doing so public emotions can articulate our shared responsibility for addressing the way in which our contemporary societies are structured by the reproduction of historical-structural injustices. This chapter will briefly frame existing debates in a growing literature on emotion and affect before identifying the relationship between emotions and transitional justice, historical-structural injustice, and power. The chapter will then argue that public emotions, including the emotional content of statements by political and religious leaders, are a key means by which these institutions construct responses to historical abuses. A final section problematises the role of shame as a public emotion and suggests the need for alternatives.
5.2 Conceptualising Emotions and Affect
Emotions have been historically neglected in the social sciences and overly contrasted with the study of rationality.Footnote 1 Such a distinction is not apoliticalFootnote 2 but instead maps onto structures of patriarchy, whereby maleness was historically equated with rationality and women, femininity, and emotions were deemed irrational.Footnote 3 In addition, Susan Leigh Foster argues that early thinking on emotions must be situated ‘within the context of Britain’s discovery of the new world and subsequent colonial expansion’.Footnote 4 She criticises the work of Adam Smith and David Hume on sympathy and empathy, as depending on pernicious distinctions of nation and race, as well as those of gender and class.Footnote 5 Today, scholarship recognises that emotions are not additional to reason and rationality but that emotions are essential to rational thought.Footnote 6
Within recent emotions literature, there is a distinction between emotions and affect. A variety of approaches have been taken to defining these terms across disciplines in the humanities and sciences, principally psychology.Footnote 7 For Paul Hoggett and Simon Thompson, for instance, ‘Affect concerns the more embodied, unformed and less conscious dimension of human feeling, whereas emotion concerns the feelings which are more conscious since they are more anchored in language and meaning’.Footnote 8 Anne-Marie D’Aoust cautions that we need to be wary of drawing too sharp a distinction between emotions and affect, claiming that a focus on this distinction may have the unintended consequence of dividing examination of expression of emotions to social sciences, while leaving study of the body to neurosciences.Footnote 9
A second point of contention is whether emotions and affect are universal in nature or whether they are socially conditioned and constructed. Literature within the critical and feminist traditions suggests that emotions are shaped by geo-political forces, such as power.Footnote 10 Monique Scheer emphasises that emotions are not universal traits of personality but rather depend upon culturally specific socialisation.Footnote 11 Goodwin et al concur that emotions are all politically, historically, and culturally constructed, with the emotions most relevant to politics more likely to be constructed, such as rage, shame, or indignation regarding identity and rights, and are all ‘culturally and historically variable’.Footnote 12
A third area of disagreement in the literature is whether and how emotions can be meaningfully ascribed to groups, such as institutions, states, and churches, as well as across members of social groups along racial, gender, or religious lines.Footnote 13 For instance, Brandon Hamber and Richard Wilson argue that nations are not like individuals, lack collective psyches, and that individual and collective processes of healing work on different timelines.Footnote 14 John Protevi distinguishes between ‘emergentist and individualist perspectives on the subject. The emergentists posit a collective subject underlying collective emotions, while the individualists claim that collective emotions are simply the alignment or coordination of individual emotions’.Footnote 15
Finally, there is growing recognition of the inherent relationship between law and emotion.Footnote 16 Terry Maroney notes that recent scholarship recognises ‘law as a flexible, context-driven mechanism for reflecting, managing, nurturing, or (dis)incentivizing specific emotions in specific situations for specific purposes’.Footnote 17 Scholarship in this area recognises a bi-directional relationship – that law and emotion may each shape and effect one another.Footnote 18 However, Bandes et al suggest that it remains the case that the structure of legal systems views emotions negatively, signalling prejudice, irrelevance or lack of reason and functions ‘as a way to exclude evidence, discredit witnesses, and otherwise impose legal consequences’, particularly in cases of individuals with traditionally marginalised status – women, people of colour, and individuals lacking social, economic, educational, or political capital.Footnote 19
In the context of these ongoing debates, this chapter will examine the extent to which emotions are involved in transitional justice, power, and examine the social and public use of emotions in responding to historical abuses. The public use of emotion will examine the social construction of emotions, and subsequent chapters will consider both the emotional lived experiences of victim-survivors of transitional justice mechanisms and the explicit and political use of emotions by those mechanisms and the states and churches they concern.
5.3 Emotions and Power
Understanding emotions and affect is a necessary but neglected part of addressing the role of power in historical-structural abuses. Luna Dolezal notes that ‘Foucault offers little insight into how a subject feels and experiences power structures’.Footnote 20 Jonathan Heaney suggests that emotions and power are ‘conceptual twins, both of which are essential to any understanding of social and political life’.Footnote 21 Heaney suggests limited consideration of emotion is particularly pronounced regarding theories of power, concluding ‘emotion operated as an “epistemological other” and like other “others”, was to be controlled, ignored or banished’.Footnote 22 He suggests instead that affect and power are intimately linked: ‘Affect is the effect of relations of power’.Footnote 23 Lauren Guilmette argues, ‘Networks of power sort, define, modify, and normalize the affective responses of their subjects through disciplinary institutions; yet affect also exceeds this range, opening space for resistance when one feels ill at ease with relational and/or institutional arrangements’.Footnote 24 D’Aoust concurs: ‘Because bodies are always situated, sexualised and racialised, they do not feel the same way – to ourselves, but also to others … emotions cannot be uncoupled from relations of power that characterise and permeate the social field.’Footnote 25 As a result, a key challenge in considering the relationship between emotions and power is recognition of how power may shape the feeling rules across diverse intersectional forms of identity.Footnote 26
This potential role of emotions can be assessed across the four faces/dimensions of power: agency, structure, epistemic, and ontological, each considered in detail below. Emotions will be experienced in the individual interactions in the agency dimension of power, between individual victim-survivor and perpetrator, or later between a survivor and the state or church seeking to address the past, in particular through transitional justice mechanisms examined in the next section. Second, emotions will be engaged by the experience of structural biases and structural injustices in the second dimension of power, whereby existing structural biases or injustices may minimise, exclude, or discriminate against women, children, Indigenous peoples, African Americans, or victim-survivors more broadly.
Third, epistemic injustice and the experience of not being heard or listened to can both silence the emotions as lived experience of survivors and prompt emotional responses, including trauma responses. Maroney is concerned about how law treats emotions in this dimension: ‘Emotion-relevant legal questions often fall into an epistemological blank space. This is an unacceptable state of affairs. It is unacceptable, first, because it destabilizes law: when the bases upon which law is made are idiosyncratic, so too is the law itself. This state of affairs also is unacceptable because, in many instances, stable bases for emotional assessment exist. Finally, where no such bases exist, emotional assessment should be openly acknowledged as an expression of one’s beliefs and values, not passed off as simple truth’.Footnote 27 Finally, emotions have an ontological dimension in their relationship to power where the expression of particular emotions may be state based, with a particular emphasis at the end of this chapter on the risks associated with public expressions of shame. For Ben Anderson, ‘attending to the dynamics of affective life may become political when brought into contact with forms of biopower that, in different ways, normalise life’.Footnote 28
5.3.1 Emotions, Agency, and Transitional Justice
Emotions play a significant role in the commission of human rights violations in a variety of ways, shaping not only individual acts of violence but also the very structures and ideologies of gross human rights violations.Footnote 29 First, historical abuses can be explained in part as having emotional dimensions to their causes. Existing literature on the concept and sociology of emotions argues that shame is the master emotion and is at the root of all acts of violence – in particular, the shame of being ashamed may lead to acts of rage, anger, and violence to deny this experience of shame.Footnote 30 When fear drives people to blame others who are not actually responsible, we can call it scapegoating.Footnote 31
Second, historical abuses, such as genocide, crimes against humanity, physical and sexual violence, and the damage to families and culture all foreseeably generate a range of intense emotional responses.Footnote 32 Rage, grief, loss, shame, and disgust are among the predictable and documented responses to these events among victim-survivors, their families, and wider communities who become aware of or acknowledge these events.Footnote 33 A victim-survivor-centred approach suggests a plurality of experiences and emotions should be anticipated and welcomed. Macalester Bell suggests: ‘as victims of wrongdoing … we should be careful to articulate to ourselves and to others precisely what attitudes and emotions we experience’.Footnote 34 McAlinden notes that cases of child abuse in particular often provoke significant public responses of anger, leading to the ‘othering’ of sex offenders.Footnote 35 She notes that where such emotional responses provide the basis for subsequent legislation or other responses to abuse, these responses may ‘tend to inflate embedded levels of societal suspicion, mistrust and intolerance concerning potential sex offenders, and create indiscriminate strategies which “cast the net of suspicion on all”’.Footnote 36 Historical-structural injustices are often causes or contributing factors to survivors’ experiences of trauma and post-traumatic stress disorder (PTSD), which in turn ‘is often associated with a wide range of trauma-related aversive emotions such as fear, disgust, sadness, shame, guilt, and anger’.Footnote 37
Third, emotions are a central feature of transitional justice measures in dealing with the past. Transitional justice can involve several emotions among victims and survivors directed at the leaders, perpetrators, and collaborators involved in the commission of harms.Footnote 38 Winter notes: ‘affective questions of emotion and intent are central to personal redress ethics’.Footnote 39 Kamari Maxine Clarke argues that international human rights and transitional justice use law in a particular manner to encapsulate emotion: ‘Law garners its authority through emotional affects that produce various forms of encapsulation, and through this process power is made real through various emotive appeals’.Footnote 40 Clarke suggests ‘as feelings of political actors are projected onto sites of legal action, those actors jockey for power to establish the core assumptions that underlie beliefs about why something like violence erupts or how it should be mitigated’.Footnote 41
Truth and reconciliation commissions are understood as being a central forum for the provision of testimony by victim-survivors. Such testimony can often involve intensely emotional accounts of the experiences of harm, grief, and suffering endured by victim-survivors. Since the South African Truth and Reconciliation Commission, there have been assessments of the claim that the disclosure of such experiences and testimony can have a healing and cathartic effect on survivors.Footnote 42 Studies call this claim into question and suggest that such commissions may have therapeutic value for only some survivors and in some contextsFootnote 43 or worse may be re-traumatising, or the value may dissipate over time.Footnote 44 Chapter 6 will explore the existing studies on the emotional impact of public inquiries like truth commissions on victim-survivors of historical-structural abuses.
Accountability mechanisms such as criminal and civil trials shape the role of emotions. The provision of testimony regarding past violence and suffering is subjected to rules of procedure and legal examination by professionals, in a manner which can formalise the experience of survivors and alienate them from their role within a trial process.Footnote 45 This will be explored further in Chapter 7. In addition, this formalisation of emotional experiences is shared with engagement with reparations mechanisms, explored in Chapter 8. Although in transitional justice theory reparations are designed to provide acknowledgement to victim-survivors of their suffering, this approach tends to focus on the status of survivors as rights holders, as civic agents, rather than as individuals with particular lived experiences, including emotional experiences. Finally, emotions play a significant role in the processes of apology and reconciliation, examined in Chapters 9 and 10.
Across these institutional settings, the emotions involved in historical abuses and transitional justice likely intersect with experiences of trauma and PTSD.Footnote 46 Susanne Karstedt notes that ‘when listeners are confronted with such extreme trauma, atrocious events, or severe illness, they react with less empathy and even attempt to constrain the victim in the expression of emotions. Bystanders and nonvictims severely underestimate the victim’s situation, react with anxiety, and respond with simplistic interventions that cannot do justice to the complex consequences of the negative emotional experience’.Footnote 47 As a result of these complexities and the shaping of emotion by particular institutional contexts, there is no way to assume that a ‘single-shot expression of emotions’ in transitional justice processes can contribute to the diminishing of emotional trauma.Footnote 48 As a result, emotions are relevant to transitional justice in addressing the past not only at an individual level for victim-survivors, perpetrators, and legal officials but also at a society-wide level through the emotional impacts of truth commissions processes and findings, the theatre and outcome of criminal and civil trials, and the performative effect and consequences of public state and church apologies.Footnote 49 Significant empirical work with survivors’ experience in and around transitional justice mechanisms related to historical abuses is therefore warranted to validate claims that such processes offer healing, catharsis, or otherwise address emotions. Without it, at best we may conclude that at present transitional justice creates an ambivalent experience for the emotions of victim-survivors.
5.3.2 Emotions and Historical-Structural Injustices
In addition to this first, interactive dimension of power and emotion in transitional justice institutions, how emotions interact with these institutions will be shaped by the second dimension of power involving structures and historical-structural injustice. As structures and practices of power seek to control bodies, they also seek to control and shape socially appropriate emotions.Footnote 50 Jon Elster writes, culture ‘acts as a modifier – whether as amplifier or as brake – of the emotions’.Footnote 51 Emotional structures can influence normatively and socially desirable emotions. For William Reddy, an emotional regime is a ‘set of normative emotions and the official rituals, practices, and emotions that express and inculcate them’, and they are a ‘necessary underpinning of any stable political regime’.Footnote 52 For Barbara Rosenwein and Riccardo Cristiani, an ‘emotional community’ is a group that adheres to the same valuations of emotions and how they should be expressed, and thus constitutes a community of emotional styles and norms.Footnote 53 Jonathan Heaney argues that the political and social use of emotions can construct an emotional state, referring to ‘the various ways in which the nation-state has been directly and indirectly involved in the construction and deconstruction of the emotional life of the polity; the degree to which it reflects (and constructs) dominant emotional regime(s) and norms; and how these processes change through time’.Footnote 54 Deborah Gould has suggested the concept of ‘emotional habitus’, being the epistemic knowledge and dispositions of a group that, if only partially consciously, form how a group engages with emotions.Footnote 55 Flam suggests that the prevailing emotional regimes within societies, and their corresponding ‘feeling rules’ are both defined by power holders within those societies (asymmetrically, to their advantage) and are an expression and symbol of their power.Footnote 56
The individual experience of emotion in transitional justice processes is thus inexorably linked to and mediated by the macro-context of normative emotional culture.Footnote 57 For Mihai, ‘taking the past seriously and engaging publicly with citizens’ politically relevant emotional responses represents a first opportunity for institutions to embark on a process of democratic emotional socialisation’.Footnote 58 As a result, she suggests institutions should strive for clear, exemplary decisions to ‘stimulate reflection’ on what democratically appropriate emotions should look like, through a justification and explanation of what commitment to constitutional democracy requires. Exemplary practices are those that ‘reflect citizens’ legitimate negative emotions and filter their expression through democratic values’.Footnote 59 Naomi Head has recently argued that the use of emotions in political rhetoric ‘does not necessarily lead to the acknowledgement of political responsibility or to actions to address the historically-constituted roots of contemporary structural injustices’.Footnote 60 Head suggests: ‘While a sentimental politics is likely to signal alignment with a certain set of moral values, thereby simulating a desire for justice, it nonetheless lacks a sustained political commitment and evades questions of political responsibility for suffering embedded in historically constituted global structural injustices’.Footnote 61 Head notes the role of emotion in political rhetoric as a potential vehicle to legitimise existing power structures and to include some and exclude others from the use of ‘care, concern, and responsibility’ in sentimental politics.Footnote 62
In particular, emotions play a role in providing narrative and normative content for national myths. Emotions are a key part of myths.Footnote 63 Bouchard notes: ‘a well-established myth is characterized (and conditioned) by being primarily emotion-driven, which helps us understand the liberties it can take with reality and the resilience it can show when it faces contradictions’.Footnote 64 Richard Rorty writes ‘stories about what a nation has been and should try to be are not attempts at accurate representation, but rather attempts to forge a moral identity’.Footnote 65 Public emotions include those articulated by public figures, in this context including political and church leadership and representatives of victim-survivor communities. Martha Nussbaum argues, ‘Good public emotions do embody general principles, but they clothe them in the garb of concrete narrative history’.Footnote 66 National and religious myths depend less upon the mere act of incorporation of emotions relevant to historical abuses but rather seek to incorporate or exclude those emotions to the extent that they enable a constructive account of the state or church as a moral and political community. The honest reckoning with the emotions produced by historical abuses and reproduced in attempts to deal with the past is likely to produce a social ambivalence regarding an exclusively positive or unifying national or religious narrative or myth.Footnote 67 States and churches already employ emotions to advance their own nation-building and myth making, in their advancement of collective memory or the ‘imagined communities’ such as the nation,Footnote 68 in pursuit and production of ‘profound emotional legitimacy’ through political rituals like parades and public holidays.Footnote 69 For instance, in Ireland, Tom Inglis demonstrated, the main work of national habitus formation in the Irish context was ‘outsourced’ to the Catholic Church, which controlled the fields of education and health, who held a ‘moral monopoly’ over society.Footnote 70 Jonathan Heaney writes:
in the early decades of the 20th century we see a concerted construction of national habitus via a unified nationalist and religious narrative, orchestrated by the two main power blocs in that society, church and state, and reinforced on the ground via powerful nationalist and religious networks. This relational setting was repressive and conservative, giving rise to an ‘emotional climate’ characterized by guilt, shame and fear; a repressive emotional and sexual code. Yet, it also produced high levels of solidarity and social cohesion, and a national habitus in which identification with, and ‘love for’ the nation was central to individual’s conception of selfhood and personal ‘identity’.Footnote 71
A variety of factors may impact the nature and extent of the emotional dimensions within public accounts of addressing the past. Clarke notes that the feelings of individuals and groups may align or contrast with dominant emotional regimes: ‘Feelings operate through agencies that are embedded in particular historical inscriptions and are part of itinerant responses that are often collective but never fully predictable; they may or may not align with the emotional climate being produced by justice campaigns’.Footnote 72 Pennebaker et al suggest: ‘The degree of social sharing within a country about a nations unwanted past can be related to a positive emotional climate if open discussions are encouraged or negative emotional climate if repressive governmental forces are at play.’Footnote 73 In creating or maintaining structures, Hoggett and Thompson note that states use emotions in the processes of governance and policy making through a variety of techniques: ‘projection, where a government colludes with powerful anxieties by focusing them upon a particular target group which becomes construed as a social problem. Enactment occurs when a government, faced with a panic of some form, succumbs to the intense pressure to be seen to be doing something’.Footnote 74 Finally, they suggest states and their institutions may embody emotions through their existing rules, systems, structures, and procedures.Footnote 75
For Naomi Head, state apologies and reconciliation may involve mere performances of empathy that evade political responsibility or may involve a more genuine process of testimonial empathy: ‘the acknowledgement of injustice and its historical and structural dimensions, subjective shifts of understanding, and collective political action.’Footnote 76 On Head’s account, the focus in assessing whether an apology is mere performance or not requires attending to the affective dynamics of the narrative created. She is concerned that such narratives may provide some actors nothing more than a ‘vicarious sensory experience that does little to alter their own sense of privilege’.Footnote 77 For Head, a politics of pity is where the ‘asymmetry between the spectator and the sufferer is maintained – often through the over-identification and imagined comprehension enabled through sentiment – ensuring that no radical reflexivity turns our gaze towards our entanglements in the creation and perpetuation of vulnerabilities and injustice’.Footnote 78 In contrast, compassion requires recognising the connection ‘between the personal and the political and … entails the political recognition that while we are all vulnerable we are not so in the same way or to the same degree’.Footnote 79 The structure of public emotions thus forms a crucial platform for the reception and discourse regarding appropriate emotional responses to historical-structural injustices.
5.3.3 Emotions and Epistemic Injustice
The emotions of victim-survivors may be subjected to epistemic injustice,Footnote 80 that is, the state and church mechanisms for addressing the past may be unable or unwilling to meaningfully listen to or hear survivor emotions – or a specific subset of their emotions. In doing so, transitional justice mechanisms may construct ‘ideal type’ survivors, who speak and act in an emotional register that confirms existing structures of power. Those who express challenging emotions, such as rage,Footnote 81 or become emotional at issues that stretch beyond the endorsed paradigms of addressing the past, those who claim that Indigenous recognition is insufficient and decolonisation is required, for instance, may be excluded. More broadly, epistemic injustice regarding historical-structural injustices is likely to map on to existing forms of such injustice in the racialised and gendered recognition of emotion within legal processes.Footnote 82
In contrast, where expressions of victimhood are repressed, this may have the unintended consequence of consolidating collective memories associated with the repressed event.Footnote 83 For Head, engagement with the emotional experiences of others can ‘disrupt our epistemic comfort and render visible dynamics and hierarchies hitherto unaccounted for by the powerful and unaccountable to the oppressed’.Footnote 84 In this regard, Head emphasises the emotional dimension to the distinction between knowledge and acknowledgement, familiar to transitional justice:
Knowledge, for testimonial empathy, requires listening without presuming a complete or full understanding of the other. It does not seek to master the narrative or knowledge of the other, to subsume it within a pre-established hierarchy of ideas, values, and beliefs, or to reduce the other to fit our own limited imaginations or perspectives. To do so would be to conflate empathy with a strategy of knowing intended to perpetuate, rather than disrupt, the existing structures of injustice.Footnote 85
Finally, Head emphasises the risks of passive empathy, which could function as ‘an “epistemology of ignorance” (of not knowing, or of not wanting to know)’.Footnote 86 Instead Head calls for “radical reflexivity and epistemic humility that is self-critical rather than self-referential in its interrogation of position, privilege, and power’.Footnote 87 The task of genuinely listening to and hearing the emotions of victim-survivors remains a key challenge for the staff of transitional justice mechanisms and representatives of state and church.
5.3.4 Emotions and Constitutive Forms of Power
Finally, emotions may play a role in the fourth constitutive form of power. The classification by society as ‘black’, ‘Indigenous’, ‘poor’, or ‘victim’ may result not only in significant disempowerment, discrimination, and harm but also with a set of social norms and messaging that it is shameful to belong to these categories of inferiority. For historically marginalised groups, group identity and experience may confirm the emotional dimensions of a particular social identity, that is, feelings of shame or inferiority in individuals who belong to groups that have been both historically and currently marginalised. For instance, William Reddy argues that in situations of conquest or colonisation, where a normative emotional management strategy is imposed on a population, ‘emotional suffering becomes epidemic’.Footnote 88
Second, emotions can play a key part in the constitution and politics of victimhood. Judith Shklar insists that victimhood ‘has an irreducibly subjective component that the normal model of justice cannot easily absorb’.Footnote 89 Antti Malinen argues that for care leavers seeking justice for acts of historical abuses, being ‘part of this emotional community opened up opportunities for empowerment through sharing and the validation of experiences’.Footnote 90 For Mihai, ‘until we understand the role played by affective investment in collective identification and mobilization, we will not be in a position to understand the emergence and resilience of non-democratic collective identities: racism, xenophobia, explosive nationalism and religious intolerance’.Footnote 91 Janine Natalya Clark argues that in transitional justice to date ‘the neglect of emotional legacies represents a missed opportunity to explore how the meta emotions that people share – and which form part of “a social ontology of connection” – constitute potential new bases for building reconciliation in post-conflict societies’.Footnote 92 Subsequent chapters will examine how states employ and perform emotions through the specific institutions of transitional justice (investigations, trials, redress, and apologies) and enable the consolidation of their power and legitimacy. In particular, subsequent chapters will explore whether framing the past in terms of gross violations of human rights, institutional responses to such violations, and in terms of transitional justice ‘inevitably distorts the historical “reality” of collective mass atrocities and the victims’ remembered experiences of it’.Footnote 93
5.4 Historical-Structural Injustices and Shame
Shame is an emotion which features both as a dimension of historical abuse and as an element of modern-day responses to such harms. There is a significant literature on shame across disciplines.Footnote 94 Kizuk notes: ‘guilt is about a failure of doing whereas shame is about a failure of being. Unlike guilt, which focuses on failing to live up to a norm or breaking a rule, shame is often taken to be a response to a global failure of the self. This is because shame is, in structure, ontological rather than action-based – it is tied to our identity’.Footnote 95
Nussbaum argues that shame ‘is a painful emotion responding to a sense of failure to attain some ideal state’ and involves not only the realisation but also the denial that one is ‘weak and inadequate in some way in which one expects oneself to be adequate.’Footnote 96 For Nussbaum, only shame of a specific and limited sort can be constructive. It is possible to invite others to feel shame in non-insulting, non-humiliating, and non-coercive ways,Footnote 97 but it seems necessary for such attempts at constructive shaming to be founded on mutual respect. In contrast, ‘shame punishments, historically, are ways of marking a person, often for life, with a degraded identity.’Footnote 98 As a result, Nussbaum concludes that society’s shaming behaviour is not to be easily trusted.Footnote 99
Luna Dolezal concurs that ‘shame is an emotion which is experienced by a subject when his or her perceived shortcomings or failings are observed by another’.Footnote 100 For Dolezal, shame is both embodied and social.Footnote 101 She notes the fact that shame is ‘constitutive and necessary’, particularly as a motivation of skill formation.Footnote 102 She usefully distinguishes between acute and chronic body shame, which ‘arises because of more ongoing or permanent aspects of one’s appearance or body, such as one’s weight, height or skin colour. It can also arise because of some stigma or deformity, such as a scar or disability … Shame, in this case, is not experienced as an acute disruption to one’s situation, but rather as a background of pain and self-consciousness, becoming more acute perhaps in moments of exposure or self-reference’.Footnote 103
Shame is a feature of historical abuse that pervades several of the societies examined in this book. Relying on testimony in empirical work is ‘particularly difficult’ when dealing with shame and embarrassment as it is often bypassed or repressed.Footnote 104 Across the ninety inquiries discussed in Chapter 6, there are at least 1,090 references to shame. Persistent shame may explain failures to process child sexual abuse or PTSD.Footnote 105 For instance, Swain and Howe note the role of shame in Australian maternity homes, referencing a 1908 Charity Review article describing them as a place where, for mothers, ‘their shame can be hidden and where they can live until their infants can do without their care’.Footnote 106 Similarly, in twentieth-century Ireland, chronic shame was a persistent feature of the Catholic faith and reinforced in both religious rituals such as confession and through Irish families, schools, and communities, with particular emphasis on women and children.Footnote 107
McAlinden notes that a politics of shame was integral to both Irish national and religious identity and that this identity was bolstered by bystanders in Irish families and institutions who failed to challenge the status quo, with the result that victim-survivors were silenced for decades.Footnote 108 Shame in Ireland attached in particularly gendered terms, targeting unmarried mothers and those who transgressed or were perceived to transgress other Catholic sexual norms.Footnote 109 In the context of the Magdalene Laundries, oral histories given by victim-survivors reveal ‘women were conceptualised as mud and rubbish to be disposed of, as inexpensive goods for sale or as natural forces that were out of control. In that blinkered society they epitomised the worst side of illness and disability’.Footnote 110
The religious nature of the institutions involved and the actors engaged in historical abuse raises the possibility of a particularly religious experience of shame, what some have dubbed sacramental shame: ‘People often dispense this shame believing it will help their loved ones to conform to God’s will and to spend eternity in heaven’.Footnote 111 As with the full range of emotions, shame can be analysed across the four forms of power developed in Chapter 4.
5.4.1 Shame and Agency
As seen above, survivor shame forms a pervasive reaction to the experience of historical-structural injustices. Shame retains the potential to form an element of responding to historical abuse. Shame is an emotion that can be deployed in a single interaction between victim-survivor and perpetrator. On this approach, shaming is reintegrative when it reinforces an offender’s membership in civil society.Footnote 112 Restorative justice literature suggests two elements to reintegrative shaming: (1) the explicit disapproval of the wrongful act (shaming) by respected others; and (2) the ongoing inclusion of the offender within a meaningful relationship (reintegration).Footnote 113 McAlinden notes the potential of reintegrative shaming to address child sexual abuse, by aiming ‘to engage local communities in the management and reintegration of sex offenders and to directly address wider concerns about the presence of released sex offenders in the local community’.Footnote 114 As a result, if shame is to play constructive role in addressing historical-structural injustices, its potential is likely to be at the interpersonal level.
5.4.2 Shame and Structure
Second, shame is a key part of the emotional state or structure regarding social norms. John Elster concurs that shame is the most crucial emotion to the maintenance and enforcement of social norms.Footnote 115 Shame not only operates in individual experiences and social interactions but also ‘plays a key normative and constitutive role in embodied, intersubjective and socio-political relations’.Footnote 116 Thomas Scheff and Suzanne Retzinger note that shame operates between individual emotional experience and the broader social structure of society.Footnote 117 In particular, they note that shame is closely linked to anger-rage, which often can lead to violence or aggression and serve as a destructive social force.
In this context, shame may form a central part of historical-structural injustices for historically marginalised groups. Luna Dolezal notes that ‘the propensity to shame, and its consequences, is very much dependent on one’s position within a social group’.Footnote 118 She notes: ‘shame is deployed as a strategy of social exclusion, as a means to oppress a particular social group, this shame is often invisible, unacknowledged or individually and collectively bypassed’.Footnote 119 Dolezal thus emphasises that the structure of shame may not align with the emotional experience of it (or lack thereof).Footnote 120 Instead, the structure of shame may manifest as a lack of self and/or social recognition of equal status and worth.Footnote 121 This form of shame does not attach merely to individuals but entire social groups and can be inherited and transmitted from one generation to the next, a permanent part of both individual and group identities.Footnote 122 Such structural forms of shame attach to historically marginalised groups and peoples, including Indigenous peoples, people of colour, women, and children, and form an inescapable form of shame that becomes part of social identity.Footnote 123 The results of such forms of shame are to reenforce a subjective experience of inferiority, which can lead to damaging emotional and cognitive outcomes and ‘a state of profound disempowerment’.Footnote 124 Shame appears a particularly pernicious emotion when operating at the level of social, political and religious structures.
5.4.3 Shame and Epistemic Injustice
Third, shame can be deployed as a form of epistemic injustice. Cheshire Calhoun notes, ‘the power to shame is likely to be concentrated in the hands of those whose interpretations are socially authoritative’.Footnote 125 Cecilia Mun suggests that ‘standard accounts of shame, understood as espousing feeling rules for shame (including shaming, being shamed, and experiences of shame), are mechanisms for the practice of systemic testimonial injustices at the social‐practical level of analysis’.Footnote 126 For example, Mun suggests practices of gaslighting or micro-aggressions reflect this use of shame.Footnote 127 To counter this, Enright and Ring suggest that epistemic justice requires ‘the ashamed state to engage in a risky exposure to victim-survivors’ testimony and to the possibility that doing so may transform the state and its law’.Footnote 128
5.4.4 Shame and Ontological Power
Finally, shame can form part of the constitutive use of biopower. Nations can shame others and can bring shame upon themselves by recognising and acknowledging the way they have ‘treated others who were in the past understood as the origin of shame’.Footnote 129
Although body shame is fundamental to one’s embodied subjectivity and social identity,Footnote 130 Dolezal emphasises that chronic body shame is also deeply involved in the constitutive use of power. This is particularly evident in Elias’ account of the civilisation process. Dolezal argues, ‘Although Foucault does not explicitly discuss shame in his analysis of discipline and embodiment, key to his theory are several features of the shame experience, such as objectification, alienation, internalization, and normalization’.Footnote 131 In contrast, Dolezal argues that for Norbert Elias: ‘the civilizing process is driven by a deeper desire to avoid social exclusion and shame in order to secure and maintain social standing’.Footnote 132 Dolezal continues that for Elias: ‘as bodies became the primary site of social worth and estimation, central to the social value system, fear of social degradation and the loss of social standing make it increasingly imperative for individuals to regulate and manage the body. Avoiding social exclusion and accruing body capital are central concerns for the subject, and these concerns are inextricably linked to the experience of body shame’.Footnote 133
In contrast, Deigh suggests that shame may be productive where it reaffirms a commitment and failure to live up to the ideals of liberal democratic institutions.Footnote 134 Lisa Guenther distinguishes between shame as ‘a feeling of collective ethical responsibility, and humiliation as an instrument of political domination’.Footnote 135 Sara Ahmed examines how apologies involving shame can function as nation-building, in which ‘what is shameful about the past is covered over by the statement of shame itself’. On her account, shame may be restorative ‘only when the shamed other can “show” that its failure to measure up to a social ideal is temporary’.Footnote 136
To date this constitutive use of shame has failed to achieve this restorative function in the context of addressing historical-structural injustices. Clara Fischer notes that ‘Irish nationbuilding engages a politics of shame that operates both via the construction of shamed, deviant Others hidden away in Ireland’s network of institutions and via the shame brought onto itself precisely through the maltreatment meted out to those deemed deviant Others. The Irish nation thus reproduces itself in this paradoxical, circular manner, as it draws on shame’s capacity to bind people in the creation of national collectivities through the establishment of “insiders” and “outsiders” or through the assumption of collective or supra-individual failings that make us feel shame as (the) people of Ireland’.Footnote 137 Máiréad Enright and Sinéad Ring borrow from the work of Giorgio Agamben, and ‘understand true shame as an experience of the collapse of the sovereign self. When speaking about historical institutional abuse, state actors have positioned the Irish state as ashamed of its past. On their view, state shame as performed in statements of this kind entails no loss of sovereignty. Rather, the post-authoritarian Irish state’s identification with shame has run alongside new, intensely productive politics of nation-building reinforcing state sovereignty and inaugurating new techniques of government’.Footnote 138
McKenzie et al note the application of shame to Australia at the level of a national myth: ‘there has been extensive discussion of collective shame regarding, for example, Australia’s violent history of colonisation; its present-day treatment of Indigenous people (e.g., the stigmatising and divisive Northern Territory Intervention) and the mandatory, prolonged detention of asylum seekers in harsh conditions. In these cases, shame is not being applied to a person by a community, although activists in these areas have often used the language of shame in their indictments of political leaders. Shame is primarily applied to the nation and its government by a section of its own citizenry. Shame is seen as evidence of both moral conscience and moral failure – the moral conscience of part of the nation directed at the government and the moral failings of other citizens in that same nation. These calls for communal shame are thus not only calls for accountability and reparatory action, but a contestation of the moral fabric of the nation’.Footnote 139 Sara Ahmed argues these performances separate shame from victim-survivors’ experiences, shifting shame from a personal and individual matter to one of national identity that the state alone deems it is capable to address.Footnote 140
In Canada, Sarah Kizuk argues that ‘a politics of recognition informed by settler shame has done little to actually see or hear Indigenous peoples on their own terms. Since settler shame is a self-directed emotion that seeks to be discharged through reconciliatory processes that are dependent on liberal recognition, it remains a mere optics of justice wedded to settler ignorance’.Footnote 141 She defines settler shame: ‘to be a personal experience related to the recognition of our identity as complicit in a racist and colonial world (being bad), as well as the concomitant realization that we might lose control over our identity and become defined solely as this bad self both by ourselves but also by our social world at large. Settler shame causes anxiety and is profoundly painful precisely because we do not want to jeopardize our social standing or lose the ability to self-define’.Footnote 142
Denise Starkey notes the theological dimensions of shame, especially within the Roman Catholic tradition, cautioning: ‘Theologies that do not address the different subject positions of perpetrators and victims, nor account for the dynamics of power and the absence of freedom of survivors cannot be said to ensure liberation. Shame must be “unmasked” in order to “derail” the shattering effects that lead to survivors being held accountable for the harm done to them while many perpetrators continue to evade responsibility’.Footnote 143 Thomas Scheff notes: ‘Denial of shame goes hand in hand with denial of interdependence. An accurate and effective social science requires that shame and interdependence be brought into the light of day’.Footnote 144
5.5 The Danger of Shame and Historical-Structural Injustices
There is thus significant potential for shame to feature in the emotional and affective dimensions of addressing historical abuses. To the extent that it is turned to the purposes of nation-building and at the expense of the preferences of victim-survivors, such shame rhetoric and practices may risk further distress, re-traumatisation or alienation from society. Krista Thomason notes: ‘When we shame, we attempt to define another person’s identity in social life, but this is an illegitimate exercise of power over another moral agent. In shaming, we take ourselves to be moral educators who are immune to the flaws that we point out in others.’Footnote 145 Ahmed notes: ‘The politics of shame is contradictory. It exposes the nation, and what it has covered over and covered up in its pride in itself, but at the same time it involves a narrative of recovery as the re-covering of the nation’.Footnote 146 In their response to historical abuse, states and churches may continue to shame victim-survivors in their treatment in inquiries, prosecutions, or redress mechanisms. Fischer notes: ‘Productive shame, and its potential for change, is thus subverted, as the continuous project of nationbuilding, in its desire for pride, renders productive shame impossible, as the performance of the gendered politics of shame continues to establish and then cover deviant Others as instances of national shame’.Footnote 147 Instead, Ahmed notes, ‘The fear of being seen as “like them” structures this shame narrative’.Footnote 148 Kizuk concurs: ‘Rather than operating as an affective transformative experience, settler shame leads to a collapse back into a remaking of settler identity. In other words, the responsibility becomes a responsibility to fix the image of the settler rather than repair the damaged relationship with Indigenous peoples. This is because we, as settlers, want to stop feeling bad so we take steps to discharge our shame in such a way that does not challenge the material conditions that have created and maintain racist and colonial injustice. Our individual (and national) efforts to resolve the experience of shame have taken place through the recognition of our shame experience: it is self-referential. To flee this shameful identity becomes, then, a project to restore our identity as superior’.Footnote 149
Enright and Ring suggest that despite its misuse by states, shame retains radical potential because it is destabilising and can awaken a community to knowledge of past wrongdoing and prompts a duty to bear witness and make space for the wrongs done to others: ‘Epistemic justice is incompatible with mere professions of shame unaccompanied by any radical change in the state’s normal legal practices’. They suggest, ‘Embracing shame as a mode of doing justice to the past in Ireland must mean decentering and reconfiguring established state attitudes to law, allowing new epistemic frames for the voicing and witnessing of traumatic experiences of historical institutional abuse to emerge. This is a process of anxious struggle, far removed from the comforts of the old sovereignty; the state must risk established practice and “act, without guarantees, for the good of all”’.Footnote 150 Dolezal suggests that structural forms of shame must be overcome collectively: ‘socially inferior groups must invert chronic shame – a structural feature of their subjectivities – into pride in order to achieve collective and personal liberation’.Footnote 151
Alternative emotions may be more suitable than shame at structural, epistemic and ontological levels. Brian Lickel et al note that the use of guilt rather than shame discourse may be more suitable for human rights violations: ‘Insofar as shaming promotes anger, humiliation, and denial rather than empathy, guilt, and responsibility, shaming may harden rather than resolve the problem of human rights violations’.Footnote 152 One suggestion for how emotions may impact on responsibility for structural injustice is that greater awareness of historical abuses may prompt repentance. Linda Radzik notes, ‘Repentant persons reject their former actions, habits, thoughts, or character traits in favor of a new set of values, commitments, dispositions, and intentions.’Footnote 153 She notes:
Repentant persons acknowledge that their former actions were wrong and neither excused nor justified by some other consideration. In repenting, one sometimes acknowledges that one’s past values – the moral views to which one had dedicated oneself – were wrongful. At other times, one continues to endorse the old set of values but criticizes oneself as having fallen short in one’s pursuit of them. Repentance is sometimes described as both accepting a wrong as one’s own and rejecting it. One commits or recommits oneself to the right and the good. This combination of a rejection of the past as wrongful and a commitment to better values makes the emotion of repentance a generally preferable response to wrongdoing than related emotions of self-assessment such as guilt, regret, remorse, or shame.Footnote 154
Taiaiake Alfred suggests the need for restitution rather than shame, as a ‘ritual of disclosure and confession in which there is an acknowledgement and acceptance of one’s harmful actions and a genuine demonstration of sorrow and regret, constituted in reality by putting forward a promise to never again do harm and by redirecting one’s actions to benefit the one who has been wronged. Even the act of proposing a shift to this kind of discussion is a radical challenge to the reconciling negotiations that try to fit us into the colonial legacy rather than to confront and defeat it’.Footnote 155 In its continued reliance on the legitimacy of ‘othering’ and its potential to be subverted to maintain existing structures of power and nationhood, shame remains a deeply challenging concept and emotion to be employed publicly and in an exemplary fashion, especially in the contexts of addressing historical-structural injustices.
In the context of historical abuses, the interactions of emotions and power in shaping past and re-enforcing present cultures and structural injustices remain underexplored. Transitional justice is an area of law and policy that has long laid claim to being able to provide healing and catharsis through its operations and institutions, but this claim lacks any widespread empirical validation to date. Emotions thus have the potential to interact with power as a key reason and cause for the nature and shape of a society or church’s attempts to deal with the past. The role of emotions may offer a useful element of the framework to explain the opportunities and limitations within certain national and religious contexts. This book will not engage in a novel empirical evaluation of the emotions of individual victim-survivors beyond existing studies of the emotional dimensions of transitional justice practices in subsequent chapters. Instead, it will examine especially public expression of emotion and affect, with the potential for exemplary, norm-setting functions. Emotions can be evaluated as they emerge across the four dimensions of power discussed in Chapter 4: agency, structure, epistemology, and ontology. In the absence of comparative empirical analysis, reliance can be placed on both explicit references to the dimensions of power and emotion in existing processes and in a construction of these factors in the approaches taken by states and church. It is to these processes: inquiries, accountability, reparations, reform, apologies, and reconciliation – as elements of transitional justice – that the rest of the book is addressed.
Particular emphasis is placed on the emotion of shame. As an emotion that in its structure is a criticism of individual identity rather than individual conduct, it is an emotion that is pervasive in existing accounts of historical-structural injustices but also in attempts to respond to the past. The suggestion of this chapter is that while shame may play some beneficial role at an individual level, when deployed by powerful actors across existing structures, it is capable of re-enforcing the structure of society based on ‘othering’ and the creation of inferior social categories. As a result, public shaming is a technology of domination, assimilation, and civilisation and should play no part in a transitional justice that seeks to address historical-structural injustices themselves based on othering, inferiority, and the reproduction of violence over time.