Therapeutic Jurisprudence

Therapeutic jurisprudence (TJ) is an interdisciplinary approach to the study and practice of law and the role of legal actors. It aims to focus on the often underappreciated aspect of the law and legal actors’ role in producing therapeutic or antitherapeutic consequences. It is a normative framework that advocates the use of the social sciences to inform the processes and outcomes of legal interactions and procedures. It does not suggest that therapeutic concerns should override other important elements of the legal system (such as due process or justice concerns), but it does suggest that the therapeutic consequences of the law and legal actors be considered and systematically studied. TJ has become a highly influential framework for thinking about the law and the way legal actors interact with their clients.

The influence of TJ has recently begun to move from the conceptual to the empirical. Social science researchers are now beginning to empirically test the conceptual assumptions of the therapeutic framework. This is ushering in a new and exciting wave of TJ scholarship, for now, the TJ scholars are using not only the insights of the social sciences to develop law and legal processes but also the methods of the social sciences to test those insights. The near future of TJ scholarship promises to be an exciting and fruitful one for the development of law and legal processes.

This entry examines this newly emergent and important aspect of the intersections between law and psychology (and the wider social sciences). It provides an overview of the concept, a brief history of its development, a review of the practical implications of the framework, and an overview of its international appeal.

Therapeutic Jurisprudence: An Overview

TJ is, at its most basic, a therapeutic perspective of the legal system. It aims to use the knowledge and expertise of the social sciences-including psychology, criminology, social work, and others—to study the therapeutic and antitherapeutic aspects of the law and the wider legal system. TJ suggests that, whether one likes or acknowledges it or not, the law and the way legal actors interact with people have therapeutic consequences; thus, when the opportunity arises, legal actors should attempt to maximize the therapeutic potential (or at least minimize the antitherapeutic potential) of the legal interaction, providing that legal safeguards such as due process and justice considera-tions are not compromised.

TJ is not a paternalistic framework and does not call for increased state intervention or coercion. Therapeutic jurisprudence simply suggests that the therapeutic potential of the law and legal actors be recognized, systematically studied, and, when appropriate, acted on.

It suggests that all things being equal, the law should be constructed in such a way as to enhance the therapeutic potential of the law and legal actors.

TJ does not suggest that therapeutic ends should trump other considerations of the law. The law often serves other purposes that are equally valuable or more valuable than therapeutic ones. The TJ framework suggests that to achieve truly effective and humane law reform, policymakers should strive for a solution where these values converge. However, where these values conflict, TJ does not itself resolve the conflict, but it does sharpen and enrich the discussion.

The Development of Therapeutic Jurisprudence

Initial Origins: The Law and Mental Health

TJ began in the area of mental health law. It aimed to systematically study the previously neglected aspect of the law’s therapeutic or antitherapeutic effects in relation to mental health law, in order to minimize the antitherapeutic effects and highlight the need for further analysis on therapeutic grounds. The first exploration of the framework occurred in 1987, when David Wexler delivered a paper to the National Institute of Mental Health in the United States. The impetus for the development of TJ was a reaction to the antipsychiatry perspective that had developed in the late 1970s and through the 1980s in mental health law. TJ suggested that psychiatry, and indeed the wider disciplines of the social sciences, had valuable insights to offer to the field of law and mental health and that the law and the legal profession should attempt to use those insights where appropriate.

The Spread Across the Discipline of Law

Through the early part of the 1990s, David Wexler, Bruce Winick, and a growing group of legal scholars in the mental health field sought to investigate the scope of TJ and its application to not only mental health law but other areas of the law as well. The interdisciplinary scope and easy applicability of its mission statement— to enhance the therapeutic potential of the law and legal actors—made the framework appealing to a number of different areas of the legal system.

By 1996, TJ had expanded to include legal arenas such as correctional law, criminal law, family and juvenile law, sexual orientation law, disability law, health law, personal injury and tort law, law of evidence, labor arbitration law, contracts and commercial law, and the legal profession, as well as theoretical explorations and empirical examinations of the concept. The wide scope of the TJ framework quickly made it a valuable resource for the future development of legal areas and law reform. Toward the end of the millennium, the concept became thought of in conjunction with a number of other legal developments of the comprehensive law movement, including preventive law, collaborative law, and problem-solving courts. The convergence between these practical applications of the legal system and the principles of TJ has seen the concept move from a theoretical (and largely academic) enterprise into a collaborative form of scholarship with truly practical implications.

Practical Implications of Therapeutic Jurisprudence

The move from theory to practice has thoroughly enriched the scope and application of the TJ framework. This entry will now highlight some of these.

Problem-Solving Courts

In an important joint resolution in the United States, the Conference of Chief Justices and the Conference of State Court Administrators endorsed the continued use and expansion of problem-solving courts (such as drug treatment courts, mental health courts, and domestic violence courts) and made specific reference to the courts’ use of the principles of TJ. Although TJ and problem-solving courts (which emerged in Miami in 1989 with the first Drug Treatment Court) developed around the same time, their development was independent of each other, and for almost a decade, they each continued to show significant development within the U.S. legal system. However, in the mid-1990s, Judges Peggy Hora and William Schma began collaborating with David Wexler and Bruce Winick, speaking at conferences, and writing about the applicability of the TJ framework to the problem-solving (specifically, drug treatment) court phenomenon. Since then, the two concepts have developed a symbiotic relationship, and most problem-solving courts acknowledge the influence of the principles of TJ in their day-to-day work.

General Criminal Jurisdiction

Recently, scholars and, perhaps more significantly, judges and court administrators have begun to apply and implement the principles of TJ in courts of general jurisdiction. An excellent example is a manual produced by Canada’s National Judicial Institute. The manual uses TJ principles to inform judges how they might use probation as a behavioral contract. Also, with the implementation of insights such as relapse prevention planning, scheduled periodic review hearings, and early termination of probation after successful probationary sentences, the insights of TJ have added to the tools of judges in Canadian criminal courtrooms. In England, TJ principles have guided the way judges act even when handing down a custodial sentence. There, instead of simply sending the offender to custody without an explanation of the purpose of or reason for the custodial sentence, a community court judge completes a “Statement of Reasons,” which explains the rationale behind the incarceration, and sends a follow-up letter to further explain the need for the custodial sentence. In this case, the judicial officer takes care to condemn the act and not the person. Such practices use the psychological principles of procedural justice to inform their functions, and it is hoped that these practices increase the defendant’s sense of fair treatment and potentially facilitate future compliance with the law.

Civil Law

Besides its focus on criminal law, TJ continues to grow in the area of its origin—mental health law, principally through the work of Bruce Winick, Michael Perlin, Kate Diesfeld, and Ian Freckelton. There have also been important developments in family law and child protection law. Scholars such as Daniel Shuman and Katherine Lippel have looked at topics such as compensation in tort law and procedural justice elements in workers’ compensation.

Lawyering

TJ influences the processes of the courtroom and urges an expanded rehabilitative role for criminal lawyers. TJ also influences the way lawyers undertake their roles in their offices. The TJ perspective suggests that lawyers work with their clients to achieve outcomes that are good from a therapeutic standpoint as well as a legal one. It also encourages lawyers to explain the potential consequences of pursuing certain forms of action. For example, when combined with preventive law, TJ asks the lawyers not only to identify legal “soft spots” (potential legal problem areas) but also to identify psycholegal soft spots—areas where legal interventions may lead to antitherapeutic consequences regardless of the legal outcomes. TJ suggests that lawyers should discuss these potential soft spots with the client prior to any legal intervention to ensure that the client has a full understanding of the potential for therapeutic harm.

Legal Education

TJ has now established itself in the curricula of many law schools as well as a number of social science courses. The concept is also gaining prominence in clinical legal education.

International Appeal of Therapeutic Jurisprudence

The wide appeal of TJ has seen it spread from its birthplace in the United States to a number of countries, including Australia, Canada, New Zealand, England, Pakistan, Scotland, Puerto Rico, South Africa, India, Vanuatu, Spain, Israel, Italy, Sweden, and Argentina. Publications now appear in English, Spanish, French, Italian, Japanese, Swedish, Hebrew, and Urdu. Indeed, at the Third International Conference on Therapeutic Jurisprudence, held in Perth, Western Australia, about nine countries were represented.

The Future of Therapeutic Jurisprudence

The wide-ranging appeal and international growth of TJ have seen the concept move from the theoretical to the practical, with a growing number of justice systems around the world implementing the ideas and principles of the concept in new and exciting ways. The next chapter in the development of TJ will provide researchers, policymakers, and those involved in the justice system with an excellent platform to think about the way we see the law, legal actors, and the justice system in the future.

References:

  1. International Network on Therapeutic Jurisprudence. (2006). Available at https://law2.arizona.edu/depts/upr-intj/
  2. Stolle, D. P., Wexler, D. B., & Winick, B. J. (Eds.). (2000). Practicing therapeutic jurisprudence: Law as a helping profession. Durham, NC: Carolina Academic Press.
  3. Wexler, D. B. (1990). Therapeutic jurisprudence: The law as a therapeutic agent. Durham, NC: Carolina Academic Press.
  4. Wexler, D. B., & Winick, B. J. (Eds.). (1996). Law in a therapeutic key: Developments in therapeutic jurisprudence. Durham, NC: Carolina Academic Press.
  5. Winick, B. J., & Wexler, D. B. (Eds.). (2003). Judging in a therapeutic key: Therapeutic jurisprudence and the courts. Durham, NC: Carolina Academic Press.

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