Official Legal Histories and Where to Find Them: Responding to the Mother and Baby Homes Commission of Investigation

Whatever form an inquiry takes, a ‘definitive’ history will be at its centre. Sometimes it will be authored by academic historians, though generally in collaboration with state-appointed legal advisors.

Usually, it will be informed by the findings of some wider investigation, which purports to hear survivor evidence. The MBHCI Report contains the latest such history. It adapts and extends tactics also visible in predecessor reports, which dealt with abuses in industrial schools and Magdalene laundries, and obstetric violence in maternity hospitals.

This paper addresses how legal histories appear in these state responses to abuse, and especially in the MBHCI Report itself. It outlines three features:

1. a simplistic account of the relationship between state and religious law
2. uncritical reliance on past Irish law (and on limited readings of past law) as the standard against which past abuses are evaluated
3. strategic use of current Irish law both to control evidence-gathering processes, and police later attempts to challenge the ‘official’ history produced in the Report.

The paper will focus in detail on feature two and invite discussion of alternative models of state engagement with difficult legal inheritances.

Máiréad Enright is Reader in Feminist Legal Studies and Leverhulme Research Fellow at Birmingham Law School.