Therapeutic Jurisprudence: Promoting International Dialogue
Welcome to our blog on therapeutic jurisprudence (TJ). Though written from Downunder – you may note the Australian English spellings and usage!!! – we aim to provide an international perspective on what has become an exciting collective international endeavour.
We hope that the blog will promote further international dialogue about TJ. We will also use it to provide updates on international news and developments on TJ. Professors David Wexler and Bruce Winick, who developed TJ, have kindly agreed to provide us with their latest news in the area and I hope you will too – so we can update blog readers! The blog will also be a reflection on how therapeutic jurisprudence relates to different areas of the law, possible problem areas that arise and the relationship of TJ to other similar approaches.
Therapeutic jurisprudence studies how laws, legal institutions, legal processes and legal professionals affect the well-being of those affected by them. Though TJ emerged in the context of mental health law in the late 1980s, it has rapidly extended into diverse areas of the law. I did a Lexis-nexis search on 'therapeutic jurisprudence’ in January and it came up with 1,320 references in law journal articles. It is also now being referred to in court decisions, legislation and speeches by judges and lawyers.
TJ has become the underlying philosophy of problem solving courts, but has important implications for legal professionals in court-related work generally and in legal work that does not involve courts. It is important to note that TJ is not simply about helping defendants reform their lives – although that is an important application of TJ – it can also be used to improve the situation of victims of crime, civil litigants, witnesses, parties to relationship breakdown, Aboriginal communities, individuals and groups in conflict, jurors, consumers, judicial officers, injured workers, lawyers, families involved in coronial proceedings, in commercial settings and so on.
Therapeutic jurisprudence is changing how many people think and feel about the law and how judges, magistrates, lawyers, correctional officers and court officers go about their work. In saying that the psychological well-being of people is important in how the law works, it is putting “counsellor” back into the concept of legal counsel. It is putting healing back into the law. It is bringing new dimensions to the function of judging. It is broadening the concept of rehabilitation promoted by correctional officers. It is equipping all of these professionals with a bigger ‘tool box’, one that dips into the behavioural sciences for new ways of doing things.
The professionals who take this approach in their work are experiencing greater levels of job satisfaction due to their increased ability to make a difference. The law and the behavioural sciences share an interest in the psyche and its development and in promoting positive behavioural change. Previously the law in practice was more insular in relation to determining court processes and lawyering practices. The behavioural sciences were only relevant to the content of legal proceedings – such as psychological reports used in sentencing and psychological evidence in personal injuries damages case – and not to how lawyers and judges should act. Therapeutic jurisprudence has encouraged a dialogue to see how the behavioural sciences can contribute to how courts, tribunals and other legal institutions and lawyers operate.
TJ does not elevate psychological well-being above all other values the law must promote – it just says it is an important part of the mix of values. It can also help those who make law-related decisions to think more clearly about what would be the better decision for all concerned – one that minimises possible negative side-effects when other values must be promoted. For example, a judge can condemn a person in sentencing her or him to imprisonment for a crime – such as by calling him a ‘hopeless burglar’ – or condemn the behaviour and point to the strengths the person has as evidence of an ability to reform and to use the time in prison to promote rehabilitation. I see the blog as complementary to existing sites that give information about therapeutic jurisprudence, including comprehensive bibliographies and up-to-date news – such as the International Network on Therapeutic Jurisprudence (www.therapeuticjurisprudence.org) and the Australasian Therapeutic Jurisprudence Clearinghouse (www.aija.org.au).
Some brief information about your blogger: I am a former magistrate who applied therapeutic jurisprudence from the bench. I regularly write and publish articles on therapeutic jurisprudence and other aspects of non-adversarial justice. I now teach law students at Monash University in Melbourne, Australia about therapeutic jurisprudence and other aspects of what Professor Susan Daicoff has called ‘comprehensive law’ and what Monash Law Dean Arie Freiberg has called ‘non-adversarial justice’."
Michael S King
Faculty of Law
Clayton Vic 3800