This year’s law and emotion stream at the SLSA will include a papers on a topic that is increasingly discussed in the USA and beyond, but relatively rarely acknowledged within the UK, the concept and application of therapeutic jurisprudence.
Therapeutic jurisprudence began in the USA as a new approach to mental health law. At its core is the premise that the law can act as a therapeutic agent. In other words, it positions law as a social force which can have therapeutic or anti-therapeutic behaviours and consequences in terms of its effect on psychological wellbeing. The term “law” is defined widely and can include legal rules, legal procedures and the roles and behaviour of legal actors (participants in legal processes). Its scope has widened from its foundations in mental health law to apply to a range of legal fields, for example, criminal law and family law, as well as legal education and practice.
At the heart of therapeutic jurisprudence is the idea that the law should seek to promote therapeutic behaviours and consequences – those that promote good psychological wellbeing. It should also seek to avoid anti-therapeutic behaviours and consequences – those that can impair psychological wellbeing. It does not seek to argue that wellbeing should always be the key consideration, but it does seek to ensure that it is acknowledged and factored into legal decision-making and processes. Given the law’s traditional focus on the formalistic application of doctrine and its overall lack of regard for emotion and wellbeing, this is a radical proposition.
Of course, acknowledging psychological wellbeing comes with its own challenges and pitfalls. The term “wellbeing” is ubiquitous in modern society, but not always clearly defined. A similar criticism can be made of the terms “therapeutic” and “anti-therapeutic”. The question of who is to define these and whether this can become paternalistic and/or ideologically motivated has also been raised. At the same time, therapeutic jurisprudence’s co-founder, David Wexler, has argued that the very breadth of the concepts involved is a strength, enabling those involved to explore its potential applications as widely as possible.
Wexler has also emphasised that therapeutic jurisprudence is not (as yet) a full-blown theory. Instead, it acts as a form of prism or lens through which its proponents can explore the law in a different way. In fact, much of therapeutic jurisprudence’s development has been practical in nature, looking at how to apply the existing law in more therapeutic ways (although the field also encompasses calls for appropriate law reform). Its myriad applications are demonstrating on the excellent Therapeutic Jurisprudence in the Mainstream Blog where topics discussed range from alternative dispute resolution to cyber law, from sexual assault to elder law and from criminal justice to legal education. The problem-style courts piloted in the UK and well-established elsewhere are a good example of therapeutic jurisprudence’s key principles in practice.
It is arguable that, to date, some of the theoretical elements of the concept have been less well-developed, but the work done by co-founder Bruce Winnick on the jurisprudence element is continuing, with Wexler’s evolution of a methodology using a “bottles” and “wine” analogy. More broadly, it can be seen that therapeutic jurisprudence can offer a route to explore fundamental questions about the role and purpose of law and legal systems (an interesting contemporary addition to some jurisprudence courses perhaps?).
Within the UK, a Chapter of the International Society of Therapeutic Jurisprudence (“ISTJ”) has recently been formed to bring together those currently interested in, or working in, this area. As co-Chair of this Chapter (together with Dr Anna Kawalek of Sheffield Hallam University), I was very keen to incorporate therapeutic jurisprudence in this year’s SLSA law and emotion stream. When psychological wellbeing is discussed, often what is being explored is people’s inner emotional life, their emotional responses and their emotional wellbeing. Emotions form an integral part of wellbeing and thus the rich literature on law and emotion generally has much to offer therapeutic jurisprudence, just as therapeutic jurisprudence can provide the law and emotion field with fresh insights and ideas. The SLSA stream offers a chance to foster and evolve these conversations within the UK, to move towards providing therapeutic jurisprudence with the acknowledgment and discussion it deserves.
The SLSA’s law and emotion stream will be running throughout the 2019 annual conference. The call for papers is currently open. The co-convenors (Emma Jones and John Stannard) are also developing a network of law and emotion scholars. To be on the mailing list for this, for informal discussion of a proposed paper, or to be part of the UK Chapter of the ISTJ, please contact firstname.lastname@example.org)