3.1 Introduction

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. ‘(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. (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. (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:

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,

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:

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.

3.8 Conclusion

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.