Therapeutic jurisprudence: what is it? Will it hurt?
Dr Warren Brookbanks
The title of this article offers a, perhaps mischievous, spin on a legal development which is having a powerful impact in many areas of current legal practice. Therapeutic jurisprudence (TJ) invites an investigation of the design of the law itself, and to consider how the therapeutic benefits for people involved in the legal system might be improved. In effect, TJ offers a mental health perspective on the law in general, by suggesting that the law has the potential to be a healing agent or, conversely, to produce psychological dysfunction. It prioritizes dialogue over debate, while emphasizing notions of relational and psychological wholeness. To achieve this, continual reflection on the most recent insights from other disciplines, including health and the social sciences, is required in order to achieve appropriate law reform.
The title of this article offers a, perhaps mischievous, spin on a legal development which is having a powerful impact in many areas of current legal practice. Therapeutic jurisprudence (TJ) invites an investigation of the design of the law itself, and to consider how the therapeutic benefits for people involved in the legal system might be improved. In effect, TJ offers a mental health perspective on the law in general, by suggesting that the law has the potential to be a healing agent or, conversely, to produce psychological dysfunction. It prioritizes dialogue over debate, while emphasizing notions of relational and psychological wholeness. To achieve this, continual reflection on the most recent insights from other disciplines, including health and the social sciences, is required in order to achieve appropriate law reform. Therapeutic jurisprudence is a significant legal theoretical development that began in the late 1980s. Its central thesis is that the law, acting as a therapeutic agent, can produce both therapeutic or anti-therapeutic outcomes for people involved in civil and criminal justice systems. As a law reform model it asks how legal rules, legal procedures and the roles of legal professionals can be reconfigured to enhance their therapeutic potential, but without the sublimation of the due process concerns. It operates in parallel with existing legal structures and models, rather than in conflict with them. The originators of therapeutic jurisprudence, American academics, professors David Wexler and Bruce Winick, were concerned to see how mental health law could be restructured to better accomplish therapeutic values. The simple insight that the law can produce psychologically beneficial or psychologically destructive outcomes has now become ubiquitous, and the TJ framework has been applied across a very broad range of legal disciplines, including criminal procedure, mental health law, disability law, family law, employment law, medical law and many others. Using the insights of the social sciences, therapeutic jurisprudence has been able to transform the practice of law in many domains. However, as a law reform methodology it does not stand alone. It is part of a broader movement in the law, commonly known as the ‘comprehensive law’ movement, which is concerned to establish more humane, relational, and psychologically beneficial ways of dealing with