Therapeutic Jurisprudence: An Overview

Therapeutic Jurisprudence:

An Overview

Therapeutic jurisprudence is the study of the role of the law as a therapeutic agent. It examines the law’s impact on emotional life and on psychological well-being, and the therapeutic and antithera-peutic consequences of the law. It is most applicable to the fields of mental health law, criminal law, juvenile law and family law.

The general aim of therapeutic jurisprudence is the humanising of the law and addressing the human, emotional and psychological side of the legal process. It promotes the perspective that the law is a social force that produces behaviours and consequences. Therapeutic jurisprudence strives to have laws made or applied in a more therapeutic way so long as other values, such as justice and due process, can be fully respected. It is important to recognise that therapeutic jurisprudence does not itself suggest that therapeutic goals should trump other goals. It does not support paternalism or coercion by any means. It is simply a way of looking at the law in a richer way, and then bringing to the table some areas and issues that previously have gone unnoticed. Therapeutic jurisprudence simply suggests that we think about the therapeutic consequences of law and see if they can be factored into the processes of law-making, lawyering, and judging.

The law can be divided into the following categories: (1) legal rules, (2) legal procedures, such as hearings and trials and (3) the roles of legal actors – the behaviour of judges, lawyers, and of therapists acting in a legal context. Much of what legal actors do has an impact on the psychological well-being or emotional life of persons affected by the law, for example, in the dialogues that judges have with defendants or that lawyers have with clients. Therefore, therapeutic jurisprudence is especially applicable to this third category.

Therapeutic jurisprudence is a relatively new phenomenon. In the early days of law, attitudes were very different and efforts were focused primarily on what was wrong with various sorts of testimony. While there were good reasons for that early emphasis, an exclusive focus on what is wrong, rather than also looking at what is right and how these aspects could be further developed, is seriously shortsighted. Therapeutic jurisprudence focuses attention on this previously under-appreciated aspect, encouraging us to look very hard for promising developments, and to borrow from the behavioural science literature, even when this literature has nothing obviously to do with the law. It encourages people to think creatively about how promising developments from other fields might be brought into the legal system.

Recently, as a result of this multidisciplinary approach, certain kinds of rehabilitative programmes have begun to emerge that look rather promising. One type of cognitive behavioural treatment encourages offenders to prepare relapse prevention plans which require them to think through the chain of events that lead to criminality. These reasoning and rehabilitation-type programmes teach offenders cognitive self-change, to stop and think and figure out consequences, to anticipate high-risk situations, and to learn to avoid or cope with them. These programmes, so far, seem to be reasonably successful.

From a therapeutic jurisprudence standpoint, the question is how these programmes might be brought into the law. In one obvious sense, these problem-solving, reasoning and rehabilitation-type programmes can be made widely available in correctional and community settings. A way of linking them even more to the law, of course, would be to make them part of the legal process itself. The suggestion here is that if a judge or parole board becomes familiar with these techniques and is about to consider someone for probation, the judge might say, I’m going to consider you but I want you to come up with a preliminary relapse prevention plan that we will use as a basis for discussion. I want you to