Therapeutic jurisprudence

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Therapeutic jurisprudence (TJ) is a term first used by Professor David Wexler, University of Arizona Rogers College of Law and University of Puerto Rico School of Law, in a paper delivered to the National Institute of Mental Health in 1987. Along with Professor Bruce Winick, University of Miami School of Law, who originated the concept with Wexler, the professors suggested the need for a new perspective, TJ, to study the extent to which substantive rules, legal procedures, and the role of legal actors (lawyers and judges primarily) produce therapeutic or antitherapeutic consequences for individuals involved in the legal process.[1]

Black's Law Dictionary, 9th edition, 2009, defines 'therapeutic jurisprudence' as: "The study of the effects of law and the legal system on the behavior, emotions, and mental health of people: esp, a multidisciplinary examination of how law and mental health interact. This discipline originated in the late 1980s as an academic approach to mental health law." [2]

History

In the early 90’s, legal scholars began to use it when discussing mental health law, including Wexler and Winick's 1991 book, Essays in Therapeutic Jurisprudence. The TJ Approach soon spread beyond mental health law to include TJ work in criminal law, family and juvenile law, health law, tort law, contracts and commercial law, trusts and estates law, disability law, constitutional law, evidence law, and legal profession. In short, TJ became a mental health approach to law generally, and these advances were documented in Wexler and Winick's 1996 book, Law in a Therapeutic Key: Developments in Therapeutic Jurisprudence. See David B. Wexler, The Development of Therapeutic Jurisprudence: From Theory to Practice, 68 Revista Juridica Universidad de Puerto Rico 691-705(1999).

The approach was soon applied to the way various legal actors--judges, lawyers, police officers, and expert witnesses—play their roles, suggesting ways of doing so that would diminish unintended antitherapeutic consequences and increase the psychological well-being of those who come into contact with these legal figures. In 1999 in a Notre Dame Law Review article (Hora, Schma and Rosenthal, “Therapeutic Jurisprudence and the Drug Treatment Court Movement: Revolutionizing the Criminal Justice System’s Response to Drug Abuse and Crime in America,” 74 NDLR 439 (1999),) TJ was applied to drug treatment courts (DTC) drug court for the first time and the authors asserted that DTCs were TJ in action and that TJ provided the jurisprudential underpinnings of DTCs. TJ has emerged as the theoretical foundation for the increasing number of "problem-solving courts" that have transformed the role of the judiciary. These include, in addition to DTCs, domestic violence courts, mental health courts, re-entry courts, teen courts, and community courts. Winick and Wexler described this new judicial model and demonstrated how principles of TJ can be used by the judges in these new courts in their 2003 book, Judging in a Therapeutic Key: Therapeutic Jurisprudence and the Courts.

Reframing roles

Therapeutic Jurisprudence also has been applied in an effort to reframe the role of the lawyer. It envisions lawyers practicing with an ethic of care and heightened interpersonal skills, who value the psychological well being of their clients as well as their legal rights and interests, and to actively seek to prevent legal problems through creative drafting and problem-solving approaches. The impact of TJ on lawyering was documented in Stolle, Wexler, and Winick's 2000 book, Practicing Therapeutic Jurisprudence: Law as a Helping Profession. TJ also has begun to transform legal education, in particular clinical legal education. These developments were documented in a 2005 symposium issue of the St. Thomas University Law Review, "Therapeutic Jurisprudence and Clinical Legal Education and Skills Training." In 2008, Wexler published an edited volume dedicated to therapeutic jurisprudence and the criminal defense attorney. The book is entitled Rehabilitating Lawyers:Principles of Therapeutic Jurisprudence for Criminal Law Practice(Carolina Academic Press 2008).

Mainstreaming TJ

Traditionally, TJ was closely associated with problem-solving courts, such as drug treatment courts, because such courts were designed to invite the use of TJ practices(such as procedural justice, judge-client personal interaction, demonstration of empathy, active listening, and the like).Many desire the expansion of problem-solving courts, but for a number of reasons, especially economic ones, expansion on a large scale seems unlikely; in fact, in some jurisdictions, economic factors have even led to the elimination of such courts. For these and other reasons, a current interest on the part of many TJ scholars and proponents is to "mainstream"TJ--that is, to try to apply TJ practices and principles in "ordinary"courts, especially in criminal, juvenile, and perhaps family matters.

In order to mainstream TJ, a first analytical step is to see to what extent existing provisions of current codes are "friendly"to TJ--that is, whether their legal structure is sufficient to permit the introduction of TJ practices. The legal structures may be thought of as "bottles"and the TJ practices of legal actors may be thought of as "wine." Can the existing provisions be applied and implemented so as to use many of the TJ practices? In other words, can we pour TJ wine into the current bottles? If so, educational programs should be instituted to discuss how the law may be implemented in a more therapeutic manner. On the other hand, if the bottles are not sufficiently "TJ friendly", a discussion would be necessary about the desirability and feasibility of legal reform(creating "new bottles"). The mainstreaming project, its rationale, method, and references, can be found in a document in the Hague Institute for the Internationalisation of Law(Hiil)Innovating Justice site, where the TJ project is called "Integrating the Healing Approach to the Criminal Law."

Notes

  1. ↑ Бегоян А.Н. Терапевтическая юриспруденция: философские и этические вопросы // Հոգեբանության և իրավունքի խաչմերուկները: Միջազգային գիտաժողովի նյութեր / Խմբ.` Ա .Գաբուզյան, Թ.Սամուելյան, Ս.Գևորգյան. - Եր.: Հայաստանի ամերիկյան համալսարան, 2012. - 372 էջ:
  2. ↑ Black's Law Dictionary 9th ed. (West Group, 2009)

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