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

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.

1.3 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

2.1 Introduction

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.

2.3 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

2.4 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.

2.5 Conclusion

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.

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.

4.1 Introduction

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

4.4 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.

4.5 Conclusion

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.

5.1 Introduction

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

5.4 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.

5.5 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:

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.

5.6 Conclusion

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.