Paper: Making Law after Critique: Jurisprudence of Reconstruction
"This paper presents a foundation for critically evaluating reform movements and schools of law which have developed in response to the age of critique in law. The critique of the Rule of Law and the disbelief in the legal profession have produced various institutions and emerging legal regimes which were aiming to substitute and supplement the declining credibility of classic legal institutions. The basic argument which this paper strives to promote is that there are particular modes of overcoming critical phases, which include embracing paradoxes by containing oppositional logics of the previous discourse within the new regime; adopting a constructivist optimistic consciousness focused on process and future orientation; embracing reconstructed perception of the human subject; rejecting new critique as external and unproductive. These elements will be traced in this paper while referring to the Therapeutic Jurisprudence movement. This movement has developed in the 1990s and focused on "The study of the effects of law and the legal system on the behavior, emotions, and mental health of people." It is a perspective that regards the law (rules of law, legal procedures, and roles of legal actors) itself as a social force that often produces therapeutic or anti-therapeutic consequences. It does not suggest that therapeutic concerns are more important than other consequences or factors, but it does suggest that the law's role as a potential therapeutic agent should be recognized and systematically studied. It includes reference to therapeutic lawyering and preventive law; therapeutic judging and procedural justice; problem solving courts and reforms in the criminal justice system; rehabilitation and mental health law. The paper will examine this movement according to the modes of overcoming critique presented above and will show how it embraced paradoxes by containing oppositional logics of the previous discourse within the new regime; adopted a constructivist optimistic consciousness focused on process and future orientation; embraced reconstructed perception of the human subject by emphasizing emotions and relationship; rejected new critique as external and unproductive. The analysis will demonstrate the discursive characteristics of a reform movement which surrounds itself with committed believers who are ready to avoid "the culture of critique." It will expose the potentials and limitations in adopting such a mode. The paper assumes that the "after critique" characteristics exist at the core of other "alternative" institutions or schools of law such as ADR and mediation, Restorative Justice, Transitional Justice, New Governance. Characterizing these movements as belonging to the "after critique" stage, and exploring the particular ways in which they claim to overcome or avoid it, exposes interesting commonalities between contemporary movements of reconstruction in law."