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

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, who were shamed by authorities for their poverty, race, disability, or association with sexual transgression (Fischer, "Gender"; O'Sullivan and O'Donnell; Smith, Ireland's Magdalen Laundries; Buckley, Cruelty Man; Clough, Shame). Practices such as head shaving, name changing, identifying children by number, and flogging were used to punish and control (Arnold; Coleman 121; Commission to Inquire into Child Abuse [hereafter cited as CICA] vol. 1, ch. 8). Women and children in industrial or reformatory schools, psychiatric hospitals, county homes, and Magdalen laundries were burdened with a stigmatized identity that meant total exclusion from society (O'Sullivan and O'Donnell 257). By beginning to speak publicly about their experiences, victim-survivors have forced the state and Irish society to acknowledge this history. Their testimony of neglect, beatings, forced labor, sexual assault, and imprisonment is an indictment of the sovereign state's claim to protect its most vulnerable and to detect and punish crime within its territory. In response the state offers an architecture of apology, investigation, and redress. Scholars, however, have traced patterns of violation of domestic and international norms at the core of this framework (Gallen and Gleeson; O'Rourke, "Justice for Magdalenes Campaign"; Ring, "Victim of Historical Abuse").

This essay contributes to the literature exploring transitionaljustice processes by scrutinizing the Irish state's responses to historical institutional abuse.¹ Scholars can analyze state actions through the lens of truth-telling, accountability, redress and reparations, and guarantees of nonrecurrence—the key objectives of transitional justice. But such processes are themselves contingent and potentially oppressive, especially where suppressed and marginalized knowledges are omitted or excluded in the name of transitional justice (Mamdani; Van Marle; Koggel). This essay develops a theory of state shame that describes and explains the harms experienced by victimsurvivors of state institutions in their attempts to gain recognition and redress from the state. It demonstrates the relationship between the state's performance of this shame in these legal responses and its need to preserve its sovereignty, and it evaluates 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 these flawed responses. We further show that in its legal responses the state benefits from a series of epistemic injustices against people who suffered institutional abuse in the past.

We present our argument in four parts. First, we distinguish between true shame as an ideal type on the one hand and the Irish state's discourse of itself as shamed subject (state shame) on the other. We argue that true shame and state shame are very different modes of engagement with past wrongs. Whereas true shame involves a collapse of the sovereign self, state shame preserves the state from any loss of sovereignty. As we next show, a discourse of state shame has been employed to legitimate narrow legalist strategies such as limited inquiries, adversarial interrogation, adherence to fixed evidentiary standards, and a focus on monetary redress to the exclusion of other aspects of reparation. Examining the state's use of law and legalism to respond to the claims of victim-survivors of institutional child abuse and of the Magdalen laundries, we show how the state produces unitary official histories, monetizes and commodifies harms raised in victim-survivors' testimony, and preserves old hierarchies of power between state, religious orders, and victim-survivors. In the third section we argue that in their encounters with these legal measures victim-survivors experience epistemic injustice. This term refers to forms of unfair treatment relating to issues of knowledge, understanding, and participation in communicative practices (Kidd et al. 1). Feminist philosopher Miranda Fricker identifies two forms of epistemic injustice, testimonial and hermeneutical, both of which involve wronging someone in their capacity as a knower (Epistemic Justice 1). We suggest that the legal responses to victim-survivors enact a refusal to listen...