Therapeutic Jurisprudence

Abstract

Therapeutic jurisprudence is an interdisciplinary method of legal scholarship that aims to reform the law in order to positively impact the psychological well-being of the accused person. In 1990, law professors David Wexler and Bruce Winick coined the term “therapeutic jurisprudence” to acknowledge the sociopsychological consequences of any legal action and that these consequences can be impacted by the interpretation of substantive legal rules and procedures. Therapeutic Jurisprudence: The Law as a Therapeutic Agent by David Wexler (Wexler 1990, cited under General Overviews) asserts that the law is capable of operating as a therapeutic agent. In essence, therapeutic jurisprudence examines the extent to which substantive rules, legal procedures, the roles of court personnel such as lawyers, judges, and court administrators combine to produce therapeutic or nontherapeutic consequences, by taking a non-adversarial approach to the administration of justice. The key stakeholders in court proceedings combine their efforts to create a strategy that will assist the offender to take responsibility for making positive changes in their own lives. The use of this approach is becoming more widespread, and principles of therapeutic jurisprudence have also been discussed in light of family law, employment law, torts, and in personal injury law. Although therapeutic jurisprudence has been largely well received, some academics and practitioners have questioned its unfettered implementation. The therapeutic jurisprudential approach argues that any anti-therapeutic consequence of a legal decision should be avoided and where possible, a holistic solution should be found that addresses the behavioral, emotional, psychological, or situational issues of the accused person. However, the use of this approach should not impinge on the operation of the court nor interfere with the administration of justice. Although therapeutic jurisprudence has been largely well received, some academics and practitioners have questioned its unfettered implementation. The rapid dissemination of therapeutic jurisprudence without the accompanying evaluative research has led to varying opinions of the effectiveness of this problem-solving model within the courts and has led some commentators to misinterpret this approach by labeling it paternalistic and coercive. The therapeutic jurisprudential approach is aligned closely with the subsequent development of the mental health court and is also relied heavily upon in other problem-solving court models including drug and other specialist courts.