Therapeutic Jurisprudence and Judging
Thinking about judging and the development of judicial technique has largely been about the processes of determining the facts, determining the law and applying the law to the facts to reach a judgement. Where the conduct of the judicial officer in the courtroom has been considered, it has mainly been in the context of controlling difficult parties, situations or where the judicial officer's conduct may render the process unfair.
The advent of therapeutic jurisprudence and problem-solving courts has stimulated interest in how the actions of judicial officers in courts and tribunals generally can either impede or advance justice system outcomes such as satisfaction in and respect for the justice system and the comprehensive resolution of criminal, civil, family and administrative law cases and their underlying issues. As a result there is ongoing work into how therapeutic jurisprudence principles can be applied in diverse areas of judging, including trials, sentencing, bail applications, appeals and tribunal hearings without compromising traditional judicial values such as independence and impartiality.
There have been three principal sources of thinking and practice in this area: findings from procedural justice research; findings from the behavioural sciences; and the experience of judicial officers applying therapeutic jurisprudence in their courts.
Australasian judicial officers are making a significant contribution to thinking and practice in this area and to the development of therapeutic jurisprudence generally. They have also written and spoken about possible ethical implications in taking a therapeutic approach in court and about how those issues may be addressed.