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 upon the wellbeing of those involved - such as where a judge allows a witness a short adjournment to collect herself after a difficult time in the witness box or where a lawyer settles a case on the client's instructions as he can no longer stand the stress of litigation. But 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 participant 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 processses on participant wellbeing, it is also concerned with areas of the law that do not necessarily involve resort to a court, such as estate planning, commerical 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 job 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 article on therapeutic jurisprudence, see Professor Wexler's article on the website of the International Network on Therapeutic Jurisprudence.
Australasian work on the concept of therapeutic jurisprudence has explored its concept of wellbeing, its scope, ethical implications from its application and its position in the context of the development of comprehensive and non-adversarial approaches to the law, amongst other topics.
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, http://www.coat.gov.au/vic_chapter.
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, https://elaw.murdoch.edu.au/archives/issues/special/exploring.pdf.
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). Available at SSRN: http://ssrn.com/abstract=2347810 or http://dx.doi.org/10.2139/ssrn.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.