Therapeutic Jurisprudence Legal Definition
Each issue of this journal is based on a specific topic; Therapeutic jurisprudence, problem-solving tribunals and mental health courts are regularly studied in empirical and theoretical studies. It is an American magazine; It also publishes international studies. Therapeutic jurisprudence is practical and uses knowledge from behavioral science to suggest techniques that can help lawyers do their job better. It recognizes that, when considering a therapeutic approach, legal actors must consider other values of the justice system – for example, when a judge detains an offender, rather than placing him or her in a drug treatment court program based on the weight given to deterrence in the particular case. The journal of the Australian and New Zealand Association of Psychiatry, Psychology and Law. This journal has an interdisciplinary focus for students, academics, lawyers and psychiatrists. The term was first used by Professor David Wexler of Rogers College of Law at the University of Arizona and the University of Puerto Rico School of Law in a paper presented to the National Institute of Mental Health in 1987. Constance Backhouse, a leading historian of Canadian law, has published a biography of Wexler and his work. [2] Together with Professor Bruce Winick of the University of Miami School of Law, who developed the field with Wexler, these law professors proposed the need for a new perspective, TJ, to examine the extent to which substantive rules, legal procedures, and the role of legal actors (lawyers and judges primarily) have therapeutic or antitherapeutic consequences for those involved in the judicial process. In the early 1990s, legal scholars began using the term when discussing mental health law, including Wexler in his 1990 book Therapeutic Jurisprudence: The Law as a Therapeutic Agent and Wexler and Winick in their 1991 book Essays in Therapeutic Jurisprudence. TJ`s approach quickly expanded beyond mental health law to include TJ`s work in criminal law, family and juvenile law, health law, tort law, contract and commercial law, trust and estate law, disability law, constitutional law, evidence law and the legal profession. In short, TJ has become an approach to mental health in general. [3] [4] Therapeutic jurisprudence is also linked to the positive criminological perspective,[18] a conceptual approach to criminology that emphasizes social inclusion and the individual, collective, social and spiritual strengths associated with crime limitation.
A practitioner of therapeutic jurisprudence would take a legal rule such as the American “Don`t Ask, Don`t Tell” provision, which once prohibited homosexuals from serving openly in the military, and consider the psychological consequences of its application. For example, under TJ, this legal norm could be considered as several anti-therapeutic consequences. Because a person`s gender identity affects many aspects of social life, a member of the gay service may feel isolated and marginalized, and experience superficiality in social relationships. Therapeutic jurisprudence is a method that makes it possible to elaborate many effects of the law beyond those initially foreseen by the authors. Therapeutic jurisprudence has been described as a subset of forensic psychology, that is, the scientific study of the mind and behaviour as they affect or are influenced by the law. In addition, the term psychological jurisprudence has been used to describe the study of law, how it is influenced by mind and behavior and influence. [15] Another related concept is restorative justice. [16] The fields of forensic psychology and forensic psychiatry also operate at the intersection of law and reason. King MS and Auty K (eds.), The Therapeutic Role of Magistrates Courts, 1 eLaw Journal (Special Series), Special Issue on Therapeutic Jurisprudence. 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.
In addition, therapeutic jurisprudence requires and promotes the cooperation of courts and judges with other authorities and professionals. This integration turns into a network of different departments and resources that can all share their views. Therapeutic jurisprudence begins with the identification of social forces within the legal system. First, there is substantive law. Therapeutic jurisprudence seeks to determine whether the law actively promotes therapeutic goals by striking a balance between community and individual rights. The second social force is the judicial procedure. Here, therapeutic jurisprudence determines whether the legal system maximizes therapeutic effects and minimizes anti-therapeutic consequences. Third, therapeutic jurisprudence examines the legal roles to determine whether the behavior of legal actors (lawyers, judges, and other court personnel) is therapeutic or antitherapeutic. Therapeutic jurisprudence is an interdisciplinary method of jurisprudence that aims to reform the law in order to positively influence the psychological well-being of the accused. In 1990, law professors David Wexler and Bruce Winick coined the term “therapeutic jurisprudence” to recognize the socio-psychological consequences of any lawsuit and recognize that these consequences can be influenced by the interpretation of substantive legal rules and procedures. Therapeutic jurisprudence: David Wexler`s Therapeutic Products Act (Wexler 1990, cited under General Overviews) asserts that the law is capable of acting as a therapeutic agent. Essentially, therapeutic jurisprudence examines the extent to which substantive rules, legal procedures, and the roles of court personnel such as lawyers, judges, and court administrators are combined to produce therapeutic or non-therapeutic consequences by taking a non-adversarial approach to the administration of justice.
The main actors in court cases are working together to develop a strategy that helps the perpetrator take responsibility for the positive changes in his or her own life. The application of this approach is becoming more widespread and the principles of therapeutic jurisprudence have also been discussed in light of family law, labour law, tort law and personal injury law. Although therapeutic jurisprudence has been widely welcomed, some academics and practitioners have questioned its full implementation. The therapeutic jurisprudential approach holds that any anti-therapeutic consequences of a court decision should be avoided and, if possible, a holistic solution should be found that addresses the behavioural, emotional, psychological or situational problems of the accused person. However, the application of this approach should not affect the functioning of the Tribunal or interfere with the administration of justice. Although therapeutic jurisprudence has been widely welcomed, some academics and practitioners have questioned its full implementation. The rapid proliferation of therapeutic jurisprudence without the accompanying evaluative research has led to differing opinions on the effectiveness of this problem-solving model in the courts, leading some commentators to misinterpret this approach as paternalistic and compulsive. The therapeutic jurisprudential approach is closely aligned with the further development of the mental health court and is also widely used in other problem-solving court models, including specialized drug courts and other specialized courts. Legal proceedings are also examined from a therapeutic legal perspective. A custody hearing is considered adversarial and therefore traumatic for both the child and the parents. Parents are encouraged to reveal the worst things about each other.
Mediation or collaborative divorce are options that may be more therapeutic. A TJ scientist would draw attention to the negative aspects of a legal process and suggest alternative and more therapeutic ways to achieve the same solution. Therapeutic jurisprudence also works to redefine the roles or behaviours of judges and lawyers. A judge familiar with TJ may ask the convicted person to write a plan explaining why they deserve a particular sentence and how they will be able to comply with the conditions. Such techniques are supposed to encourage people to take responsibility for their own rehabilitation. TJ is currently undergoing an interdisciplinary and international integration process. This includes encouraging lawyers and other criminal justice workers outside of specialized and diversion courts to adopt therapeutic perspectives and practices. To date, there have been plans to consider TJ principles in police interviews, risk assessments, diversion, settlement conferences, bail, sentencing, conditional release and appeals. The kind of reforms, innovations, and shifts in thinking that TJ`s work suggests has also met with resistance and criticism.
These range from constructive concerns about conceptual vagueness, risks of paternalism and coercion, to outright ideological opposition on the grounds that TJ would advocate the complete abandonment of the adversarial system and force defendants to renounce their constitutional and procedural rights.
