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.
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.
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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
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