Gender and ‘Historical’ Injustice Inquiries: Irish Reflections.
Green square with stylised light cyan writing & graphics that say Máiréad on ‘Historical’ Injustice Inquiries
By Máiréad Enright
The last twenty-five years have seen wave after wave of state-mediated inquiry into ‘historical’ abuses in residential institutions run by religious orders with the support of successive Irish governments. The Ryan Commission’s investigation of children’s experiences in industrial schools was followed by the McAleese Interdepartmental Committee’s examination of women’s and girls’ treatment in Magdalene laundries, and then by the Murphy Commission of Investigation into the experiences of pregnant women and girls, single mothers and their children in ‘mother and baby homes’. The state seems to consider these mechanisms a success; a new commission of investigation into historical abuse in religious-run schools day and boarding schools is on the horizon. In November, a small group of hunger-strikers outside the Oireachtas protested the outcome of the Ryan Commission; broken promises, demeaning bureaucratic redress processes; financial reparations insufficient to spare survivors further institutionalisation in old age. Equivalent difficulties recur, almost in a fractal pattern, across other survivors’ reported experiences of state responses to historical institutional abuse. The annual report of the independent Special Advocate for Survivors provides one overview, and the Transformative Justice project another.
People affected by ‘historical’ abuse often report struggling to participate effectively in state investigations. They describe feeling frustrated, re-traumatised or diminished. Investigations appear as shadows of the systems that produced their original injuries. Oftentimes, scholars of public inquiries blame this experience of cruel optimism and alienation on ‘legalism’; I have done so myself. Certainly, Irish inquiries have been less willing than their British counterparts to take non-adversarial investigative approaches seriously. For instance, almost immediately on publication of the Mother and Baby Home Commission’s final report, it became clear that the Commissioners had ignored most survivor’s testimony. The Commission justified this decision on the basis that most survivors had been invited to its Confidential Committee where their evidence was not tested by cross-examination. The Commission offered an alternative evidence-gathering process, but did not change the rules by which that evidence was evaluated. This enabled the Commission to produce a report absolving the state of responsibility for any major human rights abuses. The Mother and Baby Homes Commission, then, was an exercise in managing ‘confined knowledge flows’; gathering up people’s ‘stories’ of personal suffering and making them available to a wider community of witnesses, only to de-activate them; preventing them from challenging the state in any immediately radical way.
I am not sure that legalism was the only cause of this problem. Survivors’ testimony could have been handled differently within the law, but the Commission did not make the effort because doing so would not have served the state. ‘Legalism’, in other words is a symptom of a bigger problem, not its cause. James Gallen and Luke Moffett have written that government-commissioned truth recovery processes are best understood as exercises in state re-building; designed to ‘restore trust’ and ‘provide closure’. Sinéad Ring and I, similarly, have framed Irish ‘historical’ abuse inquiries as anxious performances of sovereignty, which relentlessly seek to legitimate and preserve the authority de-stabilised by survivor campaigning (since state power is, always, potentially undone). This kind of statecraft is complex. Participants in Irish inquiries have not been silenced or ignored in any simple sense. Instead, they have been drawn into inquiry processes which offer them some public recognition, but carefully restrict their political agency.
Writing about the theory of reparations, Deborah Thomas observes that sovereignty operates through simultaneous recognition and elimination; through recognising individuals as ‘victims’ of harm, but only in terms which preserve the state’s legitimacy, and keep those designated ‘victims’ available for the state’s preferred governmental projects. This to-and-fro of recognition and elimination explains survivors’ wounding experiences. To echo Leila Ullrich’s work, all truth recovery processes are in the business of social reproduction; all are held together by human labour, including the labour of those designated ‘victims’ or ‘participants’. That labour may include controlling one’s emotions or speech; presenting oneself in ways that the investigators will recognise as ‘dignified’ or ‘deserving’ or constructing and preparing a narrative that they will recognise as truthful. British campaigners for Hillsborough Law emphasise that participants in truth recovery processes feel that demand for labour very keenly, and are justifiably aggrieved that the same demand is apparently not directed at those responsible for or implicated in state violence. A similar point is made by survivors of Ireland’s mother and baby homes, who used High Court litigation to demonstrate that the Commission had afforded a range of procedural protections to their abusers which were not extended to them. This lack of reciprocity in allocating the burdens of social reproduction means that purportedly informal or ‘therapeutic’ truth recovery processes often feel adversarial or frankly violent.
Is it possible to imagine inquiries into past abuses which would not be dominated by the needs of the sovereign state? I think the first step in imagining an alternative is to de-centre the state when we recount the story of inquiries like the Mother and Baby Homes Commission. Although past inquiries have done a great deal of harm, we should not assume that they have entirely defeated survivors or their supporting communities. Anna Reading’s work reminds us that justice mechanisms are not monoliths. Each one is an assemblage; a constellation of entangled, multi-layered, plural, heterogenous and always-emergent, always changeable processes. Instead of seeing the Commission only as a legal artefact, or only as a creature of the state, we can see it as many contested things at once. The state cannot dominate all of them: survivors and their communities can use aspects of the assemblage to their advantage, within any state-led justice mechanism and even after its formal processes have ended. Reading argues that at least five kinds of power are discernible in any justice mechanism; legal, political, symbolic, spiritual and affective. Each of those layers can be further dismantled. As Daniel Epstein writes, in a positive abolitionist vein, the ‘legal’ can be broken down into four elements; ‘enforcing’, ‘adjudication’, ‘aspiring’ and ‘grounding’. State-driven ‘legalist’ processes typically emphasise law’s ‘enforcing’ and ‘adjudication’ functions; its capacity to bring contestation to an end, by evaluating evidence and deciding on claims, even if that means closing contestation down prematurely. However, law also has ‘aspiring’ and ‘grounding’ functions. These terms describe law’s ‘prefigurative’ or world-making capacity; its uses in articulating hopes for a better common life.
Bringing Reading and Epstein’s work together, I want to use the CLANN project to explore how some survivors and their communities in Ireland have tried to foreground law’s ‘aspiring’ and ‘grounding’ functions in politically, symbolically, spiritually, and affectively resisting the Mother and Baby Homes Commission and associated state projects. CLANN grew out of Justice for Magdalenes, who supported survivor resistance to state policy around the Magdalene laundries. It drew on some disappointing lessons of that experience to try to shape any mother and baby homes inquiry from the beginning. It formed before the Mother and Baby Homes Commission began its work. In some ways, CLANN was engaged in ordinary (if critical, and unpaid) lawyering. CLANN wrote to the Commission on behalf of survivors who wanted to give testimony. It published accessible online guides to the Commission’s processes. It helped people who wanted to give testimony to the Commission to produce formal affidavits. However, CLANN’s work is an uneasy fit for the label of ‘reformist reform’, because it did not engage with the Mother and Baby Homes Commission on the Commission’s own terms. Rather, it successfully articulated principles for a modest alternative future for investigation and repair of historical institutional abuse. Through the affidavit-production process, CLANN shaped participating survivors’ expectations of what it should be like, to be heard and recognised within a hospitable legal process. Although CLANN clearly engaged with the Commission, compiling a submission based on a large collection of interviews with survivors, it did not wait for the Commission’s interpretation. CLANN published that submission as its own report, years before the Commission’s own investigation concluded. CLANN made and publicised its own extensive findings of human rights abuses. When the Commission report was published, those survivors who had produced affidavits with CLANN were among the handful whose evidence had not been completely ignored; their strategic use of legal formality had worked to some degree. Now, the Commission Report does not adopt or mirror any of CLANN’s findings. It has not been repudiated by any government and largely stands as the basis on which the state has offered limited redress to a narrow selection of survivors. Nevertheless, CLANN’s work contains the seeds of an alternative approach to justice for survivors of ‘historical’ institutional abuse.
CLANN’s practices rejected a top-down managerial model of justice for survivors of ‘historical’ institutional abuse. Instead of waiting for the state’s inquiry to conclude, and then reacting, it began by building a space for survivors’ self-repair which could not be entirely contained by established hierarchies. Not all of CLANN’s activities enabled survivors’ unalloyed self-determination; when CLANN was preparing survivors to participate in the Commission they were bound by the Commission’s procedures, standards and timelines. CLANN’s report, however, was something else; a legal argument built around survivor interviews, which allowed individuals to ‘speak their minds’, and amplified narratives they had carefully constructed over time, often through their own archival work, family history, and difficult attempts at recovering the kinship dismantled by state intervention. Crucially, when the CLANN report invoked law, it used a wide-ranging constitutional and human rights analysis, which was utterly absent from the Commission report. In this way, CLANN chose a legal frame which nurtured rejection of the state’s narrow legal imaginary.
CLANN also offered trusted forms of legal accompaniment which bolstered survivors’ relational autonomy within the formal inquiry process, by navigating the Commission’s bureaucracy alongside them. Accompaniment has a long feminist tradition, perhaps especially in reproductive healthcare, but really in any context where state processes cannot be trusted. Whereas state agents working with Irish ‘historical’ abuse inquiries have a clear role in controlling survivor testimony, CLANN personnel committed to care for that testimony in palpable and visible ways. This relationship of care has been long-term; CLANN still advocates for legislative and policy change which would ensure safety for people harmed by coerced adoption, abusive foster care, and the mother and baby homes system.
Crucially, CLANN’s interventions spoke beyond law. They made an impact in spaces of entanglement where legal discourse overlaps with political, symbolic, spiritual and affective forms of power. Unlike the Commission, CLANN provided survivors who participated in the project with a copy of their own testimony, which they could use and publicise as they wished. One powerful example was Noelle Brown’s Home: Part One, broadcast from the national theatre, the Abbey, on St. Patrick’s Day, just a months after the Commission’s report was published. Produced by a theatre-maker who was adopted as a baby from Bessborough mother and baby home in Cork, Home was a living memorial. In this production, survivors, or actors and public figures reading their words, spoke the testimony that had been ignored or misrepresented by the Commission’s report. The testimony included several witness statements gathered by CLANN, and extracts from their own research report. In some ways, this was a practical exercise in self-repair. Participating survivors reclaimed control over how their testimony was used; something denied to them by the Commission. The production placed testimony – unmediated by any Commission- before a national audience, publicising survivors’ dissatisfaction with the Commission, and asking for a public response. The production is now used as an educational resource in Irish schools.
These practices - facilitating self-determination, offering care, and building resources which can be used politically to challenge the law from the outside – resonate with the politics of abolition. A critic might say that none of this matters; that CLANN have used legal strategies within legal structures and have, predictably, won only minor concessions from law. However, while CLANN’s tactics cannot be said to have defeated the state on its own turf, they have helped to place the ‘mother and baby homes scandal’ beyond any tidy juridical resolution. Through legislative processes and protests, CLANN continue to stand with survivors who refuse to accept a programme of reparations rooted in the Commission report; whose vision of justice or repair will not permit the state to cover over unhealed wounds. They work to sustain what Nayanika Mookherjee calls ‘irreconciliation’; a refusal to accept an unjust reconciliation with the state. Drawing on law’s ‘aspirational’ and ‘grounding’ functions, CLANN’s tactics have undermined the state’s investigation by building collective power.
Máiréad Enright is Professor of Law at Loughborough University. Amongst other things, she is interested in prefiguration, 'historical' injustice, illegality in social movements and abolition feminist approaches to legal history. Her most recent published work is on the forgotten history of England's twentieth-century Magdalene laundries.