Australasian Therapeutic Jurisprudence Clearinghouse
1. Overview
1.1 The Concept of Therapeutic Jurisprudence
For many years judges, lawyers and justice system officials have been aware in individual cases of how the legal process impacts the wellbeing of those involved – such as where a judge allows a witness a short adjournment to collect themselves after a difficult time in the witness box, or where a lawyer settles a case on the client’s instructions as they can no longer stand the stress of litigation. However, the approach was piecemeal. Until recently there has been no general theory concerning the impact of legal processes upon participant wellbeing and its implications for attaining justice system objectives. This gap has been filled by therapeutic jurisprudence.
Therapeutic jurisprudence says that the processes used by courts, judicial officers, lawyers and other justice system personnel can impede, promote or be neutral in relation to outcomes connected with participants’ wellbeing such as respect for the justice system and the law, offender rehabilitation, and addressing issues underlying legal disputes. Developed by Professors David Wexler and Bruce Winick in the United States in the 1980s in the context of mental health law, it is now seen to apply to all areas of the law and across cultures and is the subject of international study and development.
While much of the therapeutic jurisprudence scholarship examines the effect of courts, their personnel and processes on participant wellbeing, it is also concerned with areas of the law that do not necessarily result to a court hearing, such as estate planning, commercial law, correctional processes and legal education.
Therapeutic jurisprudence is practical, using findings from the behavioural sciences to suggest techniques that legal professionals can use to do their jobs better. It acknowledges that when considering a therapeutic approach, legal actors must consider other justice system values – such as when a judge imprisons an offender rather than placing the offender in a drug court program by reason of the weight attached to deterrence in the particular case.
For an introductory explanation about therapeutic jurisprudence, see this video of Professor Wexler and this article.
Australasian work on the concept of therapeutic jurisprudence has explored the notion and scope of wellbeing, the ethical implications of its application in court, and its position in the context of the development of comprehensive and non -adversarial approaches to the law, amongst other topics.
Resources
Braithwaite J, ‘Restorative Justice and Therapeutic Jurisprudence’ (2002) 38 Criminal Law Bulletin 244.
Cannon A, ‘Smoke and Mirrors or Meaningful Change: The Way Forward for Therapeutic Jurisprudence’ (2008) 17 Journal of Judicial Administration 217.
Freckelton I, ‘Therapeutic Jurisprudence: Myth, Magic and Misinterpretations’ Presentation delivered to the ‘TJ: Trendy Jargon or Tool of Justice?’ conference 26 October 2006
Freckelton I, ‘Therapeutic Jurisprudence Misunderstood and Misrepresented: The Price and Risks of Influence’ (2008) 30 Thomas Jefferson Law Review 575.
Freiberg A, ‘Therapeutic Jurisprudence in Australia: Paradigm Shift or Pragmatic Incrementalism” (2002) 20 Law in Context 6.
Freiberg A, ‘Non-Adversarial Approaches to Criminal Justice’ (2007) 16 Journal of Judicial Administration 205.
King MS, ‘Exploring the Scope of Therapeutic Jurisprudence’ (2006) 80(5) Law Institute Journal 48.
King MS, ‘Therapeutic Jurisprudence in Australia: New Directions in Courts, Legal Practice, Research and Legal Education’ (2006) 15 Journal of Judicial Administration 129.
King MS, ‘Problem-solving Court Judging, Therapeutic Jurisprudence and Transformational Leadership’ (2008) 17 Journal of Judicial Administration 155.
King MS, ‘Restorative Justice, Therapeutic Jurisprudence and the Rise of Emotionally Intelligent Justice’ (2008) 32 Melbourne University Law Review 1096.
King MS, ‘Reflections on ADR, Judging and Non-Adversarial Justice: Parallels and Future Developments’ (2012) 22 Journal of Judicial Administration 76.
King MS and Auty K (eds), The Therapeutic Role of Magistrates Courts, 1 eLaw Journal (special series), special issue on therapeutic jurisprudence.
King MS and Ford S, ‘Exploring the Concept of Wellbeing in Therapeutic Jurisprudence: The Example of the Geraldton Alternative Sentencing Regime’ (2006) 1 eLaw Journal (Special Series) 9
King MS, ‘Therapeutic jurisprudence initiatives in Australia and New Zealand and the overseas experience’ (2011) 21(1) Journal of Judicial Administration 19.
McMahon M and Wexler DB (eds), Therapeutic Jurisprudence (2003) 20(2) Law in Context, special Issue on therapeutic jurisprudence.
McMahon M and Wexler D, ‘Therapeutic Jurisprudence; Developments and Applications in Australia and New Zealand’ (2003) 20(2) Law in Context 1.
Popovic J, ‘Mainstreaming Therapeutic Jurisprudence in Victoria: Feelin’ Groovy’ in Reinhardt G and Cannon A (eds), Transforming Legal Processes in Court and Beyond (AIJA, 2007) 187.
Reinhardt G and Cannon A (eds), Transforming Legal Processes in Court and Beyond (AIJA, 2007).
Spencer P, ‘From Alternative to the New Normal: Therapeutic Jurisprudence in the Mainstream’ (2014) 39(4) Alternative Law Journal 222.
Stobbs N, ‘Mainstreaming Therapeutic Jurisprudence and the Adversarial Paradigm — Incommensurability and the Possibility of a Shared Disciplinary Matrix’ (March 30, 2013). https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2347810
Stobbs N, ‘The nature of juristic paradigms: exploring the theoretical and conceptual relationship between adversarialism and therapeutic jurisprudence’ (2011) 4(1) Washington University Jurisprudence Review 97.
Wexler DB, ‘From Theory to Practice and Back Again in Therapeutic Jurisprudence: Now Comes the Hard Part’ (2011) 37 Monash University Law Review 33.
1.2 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 practicing 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 possible ethical implications in taking a therapeutic approach in court and about how those issues may be addressed.
Resources
Bartels L and Richards K, ‘Talking the Talk: Therapeutic Jurisprudence and Oral Competence’ (2013) 38 Alternative Law Journal 31.
Billings J, ‘Therapeutic Jurisprudence in the Tribunal Context’ Presentation delivered to the ‘TJ: Trendy Jargon or Tool of Justice?’ conference 26 October 2006
Brookbanks W, ‘Therapeutic Jurisprudence: Implications for Judging’ [2003] New Zealand Law Journal 463.
Cannon A, ‘Therapeutic Jurisprudence in the Magistrates Court: Some Issues of Practice and Principle’ in Reinhardt G and Cannon A (eds), Transforming Legal Processes in Court and Beyond (AIJA, 2007) 129.
Cannon A, Doley R, Ferguson C and Brooks N, ‘Antisocial personality disorder and therapeutic justice court programs’ (2012) 22 Journal of Judicial Administration 99, also available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2166131.
Dear G, ‘Therapeutic Communications from the Bench: A Psychological View’ (2006) 1 eLaw Journal (special series) 147.
Dive R, ‘Judging in the Land of the Chaotic’ (2011) 20 Journal of Judicial Administration 185.
Duffy J, ‘Problem-solving courts, therapeutic jurisprudence and the Constitution: if two is company, is three a crowd?’ (2011) 35(2) Melbourne University Law Review 394.
Freckelton I, ‘Therapeutic Jurisprudence: Myth, Magic and Misinterpretations’ Presentation delivered to the ‘TJ: Trendy Jargon or Tool of Justice?’ conference 26 October 2006.
Freiberg A and Morgan N, ‘Between Bail and Sentence: The Conflation of Dispositional Options’ (2004) 15(3) Current Issues in Criminal Justice 220.
Heath S, ‘Innovations in Western Australian Magistrates Courts’ Paper delivered to the 2005 Colloquium of the Judicial Conference of Australia. https://ajoa.asn.au/wp-content/uploads/2013/11/2005-Heath_Paper.pdf
Hennessy A, ‘Reconnection to Community as a Sentencing Tool’ in Reinhardt G and Cannon A (eds), Transforming Legal Processes in Court and Beyond (AIJA, 2007) 35.
King MS, ‘Applying Therapeutic Jurisprudence From the Bench: Challenges and Opportunities’ (2003) 28(4) Alternative Law Journal 172.
King MS, ‘Innovation in Court Practice: Using Therapeutic Jurisprudence in a Multi-Jurisdictional Regional Magistrates Court’ (2004) 7(1) Contemporary Issues in Law 86.
King MS, ‘Therapeutic Jurisprudence and the Role of the Justice of the Peace’ (2005) 51(1) JP WA Journal 10.
King MS, ‘The Therapeutic Dimension of Judging: The Example of Sentencing’ (2006) 16 Journal of Judicial Administration 92.
King MS, ‘What can Mainstream Courts Learn from Problem-Solving Courts” (2007) 32 Alternative Law Journal 91.
King MS, ‘Problem-solving Court Judging, Therapeutic Jurisprudence and Transformational Leadership’ (2008) 17 Journal of Judicial Administration 155.
King MS, ‘Therapeutic Jurisprudence, Leadership and the Role of Appeal Courts’ (2008) 30 Australian Bar Review 201.
King MS, Solution-Focused Judging Bench Book (AIJA, 2009).
King MS, ‘Judging, Judicial Values and Judicial Conduct in Problem-Solving Courts, Indigenous Sentencing Courts and Mainstream Courts’ (2010) 19 Journal of Judicial Administration 133.
King MS, ‘Realising the Potential of Judging’ (2011) 37 Monash University Law Review 171.
King MS, ‘Should Problem Solving Courts be Solution-focused Courts?’ (2011) Revista Juridica Universidad de Puerto Rico, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1725022.
King MS and Auty K, ‘Therapeutic Jurisprudence: An Emerging Trend in Courts of Summary Jurisdiction’ (2005) 30 Alternative Law Journal 69.
King MS and Auty K (eds), The Therapeutic Role of Magistrates Courts (2006) 1 eLaw Journal (Special Series).
King MS and Batagol B, ‘Enforcer, Manager or Leader? The Judicial Role in Family Violence Courts’ (2010) 33 International Journal of Law and Psychiatry 406, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1729092.
King MS and Wager J, ‘Therapeutic Jurisprudence and Problem-Solving Judicial Case Management’ (2005) 15 Journal of Judicial Administration 28.
King MS and Wilson S, ‘Country Magistrates Resolution on Therapeutic Jurisprudence.’ (2005) 32(2) Brief 23.
King MS and Wilson S, ‘Magistrates as Innovators’ (2002) 29(11) Brief 7.
King MS, ‘Therapeutic Jurisprudence’s Challenge to the Judiciary’ (2011). (2011) 1 Alaska Journal of Dispute Resolution 1.
Malcolm DK, ‘At the Cutting Edge: Therapeutic Jurisprudence’ Opening address to the conference ‘At the Cutting Edge: Therapeutic Jurisprudence in Magistrates’ Courts’ Perth, 6 May 2005
Mack K and Anleu SR, ‘Opportunities for New Approaches to Judging in a Conventional Context: Attitudes, Skills and Practices’ (2011) 37 Monash University Law Review 187.
Malcolm DK, ‘The Application of Therapeutic Jurisprudence to the Work of Western Australian Courts’ (2007) 17 Journal of Judicial Administration 127.
Nicholson J ‘When Sentencing Becomes a Walk into the Future with the Offender: The Griffiths Remand -Compulsion in Rehabilitation’ (2008) 32 Criminal Law Journal 142.
Popovic J, ‘Judicial Officers: Complementing Conventional Law and Changing the Culture of the Judiciary’ (2003) 20 Law in Context 121.
Popovic J, ‘Court Process and Therapeutic Jurisprudence: Have we Thrown the Baby out with the Bathwater” (2006) 1 eLaw Journal (special series) 60
Popovic J, ‘Meaningful v Meaningless Sentences: Sentencing the Unsentenceable’ Paper presented to the ‘Sentencing: Principles, Perspectives and Possibilities’ conference, Canberra, 10-12 February 2006. 15(4) (May 2006) Journal of Judicial Administration 190-205
Roach Anleu S and Mack K, ‘Australian Magistrates, Therapeutic Jurisprudence and Social Change’ in Reinhardt G and Cannon A (eds), Transforming Legal Processes in Court and Beyond (AIJA, 2007) 173.
Spencer P, ‘To Dream the Impossible Dream? Therapeutic Jurisprudence in Mainstream Courts’ (2012) 22 Journal of Judicial Administration 85, also available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2083370
Waterworth, Rhondda (2024) Therapeutic jurisprudence: a practical guide to developing therapeutic intervention skills for judicial officers in specialist courts (Judicial Commission of NSW).
1.3 Therapeutic Jurisprudence and Regional Areas
A significant proportion of the literature on the application of therapeutic jurisprudence in the court system concerns the work of problem-solving courts. Typically they have been established in large urban areas that have treatment and community resources to support their operation. They have dedicated judicial officers who sit in the court on either a fulltime or part time basis.
Regional areas are often limited in terms of rehabilitation programs available. Regional magistrates in Australia exercise diverse jurisdiction and typically have extensive circuit work. They may have large workloads that impede their ability to introduce creative new court programs such as those based on therapeutic jurisprudence. Due to the remoteness of the localities in which they work, regional magistrates may have limited access to professional support in applying therapeutic principles.
Despite these challenges, regional magistrates have recognised the potential benefits of using therapeutic jurisprudence in their courts and have begun to apply its principles. In 2004, the Western Australian country magistrates unanimously resolved to apply therapeutic jurisprudence in their courts. Australian magistrates working in collaboration with local communities, drawing on local resources, have established a number of projects in regional areas. The initiatives include Indigenous sentencing courts and the Geraldton Alternative Sentencing Regime, a ‘hybrid’ problem-solving court style program that has dealt with a broad range of offending related problems, including illicit drug problems, alcohol problems, solvent abuse, gambling, stress and domestic violence.
Regional courts can adapt therapeutic principles according to the needs of their communities and the other demands of their courts. They have the unique opportunity of being able to apply therapeutic jurisprudence across multiple jurisdictions.
Resources
King MS, ‘Geraldton Alternative Sentencing Regime: Applying Therapeutic and Holistic Jurisprudence in the Bush’ (2002) 26 Criminal Law Journal 260.
King MS, ‘Applying Therapeutic Jurisprudence in Regional Areas: The Western Australian Experience’ (2003) 10(2) eLaw Journal, http://www.murdoch.edu.au/elaw/issues/v10n2/king102nf.html,
King MS, ‘Innovation in Court Practice: Using Therapeutic Jurisprudence in a Multi-Jurisdictional Regional Magistrates Court’ (2004) 7(1) Contemporary Issues in Law 86.
King MS and Auty K, ‘Therapeutic Jurisprudence: An Emerging Trend in Courts of Summary Jurisdiction’ (2005) 30 Alternative Law Journal 69.
King MS and Wilson S, ‘Magistrates as Innovators’ (2002) 29(11) Brief 7.
King MS and Wilson S, ‘Country Magistrates Resolution on Therapeutic Jurisprudence.’ (2005) 32(2) Brief 23.
Steels B, ‘Applying a Communitarian Model of Restorative Justice and Therapeutic Jurisprudence: A Social Research Project in Roebourne WA’ (2007) 1 International Journal of Rural Crime 44.