State Legal Responses to Historical Institutional Abuse: Shame, Sovereignty and Epistemic Injustice.

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The history of the Irish State is littered with shamed bodies. For decades the State collaborated with religious orders in incarcerating children and single women, shamed by their poverty, race, disability, or association with sexual transgression (Fischer Gender, Nation; O’Sullivan and O’Donnell; Smith; Buckley). Shaming practices such as head shaving, using numbers to identify children, or flogging were used to punish and control (Arnold; Coleman 121; Commission to Inquire into Child Abuse [CICA] vol. 1, ch. 8). Women and children in industrial or reformatory schools, psychiatric hospitals, County Homes, and Magdalene Laundries were burdened with a stigmatized identity that meant total exclusion from society (O’Donnell and O’Sullivan 257). As they have begun to speak publicly about their experiences, victim-survivors have forced the State and Irish society to acknowledge this history. Their testimony to experiences of neglect, beatings, forced labor, sexual assault, and imprisonment are an indictment of the sovereign State’s claim to protectits most vulnerable and to detect and punish crime within its territory. In response, the State offers an architecture of apology, investigation, and redress. Scholars have traced patterns of violation of domestic and international norms at the core of this framework (Gallen and Gleeson; O’Rourke, “The Justice for Magdalenes Campaign”; Ring, “The Victim of Historical Abuse”). These legal responses can usefully be analyzed in terms of the key objectives of transitional justice (truth telling; accountability; redress and reparations, and guarantees of non-recurrence). However transitional justice and its processes are themselves contingent and capable of oppression. Suppressed and marginalized knowledges may be omitted or excluded in the name of transitional justice (Mamdani; van Marle; Koggel). This article contributes to the literature exploring epistemic injustice in transitional justice processes by scrutinizing the Irish State’s legal responses to historical institutional abuse. In particular, we develop a theory of State shame that describes and explains the ways the Irish State perpetuates epistemic injustices against people who suffered abuse in State institutions. We unpack the relationship between the State’s performance of shame in these legal responses and its need to preserve its sovereignty — its professed singular competence to determine how painful national events are understood and resolved (Dean). We argue that the State uses discourses of its own shame to legitimate legal responses that prioritize its sovereignty over the demands of true shame. We show how this produces significant epistemic injustices in the present against people who suffered institutional abuse as in the past.