By Judd Crane, CFCC Student Fellow 2010-2011
Therapeutic Justice (“TJ”), a novel concept to myself and probably most law students, is the brain child of Professors Bruce Winick and David Wexler that posits that, “other things being equal, positive therapeutic effects are desirable and should generally be a proper aim of law, and that antitherapeutic effects are undesirable and should be avoided or minimized.”1 Additionally, in describing TJ’s role in law, its founders maintain that it is simply a factor to consider along with all of the other meaningful goals our justice system intends to purport.
Upon reading and then discussing this approach to the legal field I could not help but think of TJ as an overly obvious goal that would meet a minimal amount of opposition. However, upon further reflection, the key questions that I seemingly cannot answer are what role, and how much influence, should TJ have in our justice system? Granted, as mentioned above, TJ is claimed to be only a factor to consider, yet this answer seems far too amorphous for an approach that, depending upon the answers to those two questions, could have modest or significant ramifications on how law is practiced everyday.
It seems apparent to me that there are two major ways that TJ can affect our legal system. First, it can affect how laws are made and perhaps more importantly how they are applied in various jurisdictions. In this respect, the questions posed in the previous paragraph need to be answered to determine how strong of a factor our society wishes TJ to play in conjunction with other goals of our justice system. Second, TJ can affect how judicial officials interact with individuals who are thrust into the system for various reasons. This naturally poses its own problems, as it is more determinative on every judicial officer to act and communicate in a fashion that is socially beneficial to clients, plaintiffs, defendants, etc., who, in turn, are all very different. Perhaps TJ’s strongest impact will be made by those who promote this philosophy by bringing it to the awareness of all of the various court actors and hoping that they will act and communicate, consciously or unconsciously, accordingly.
In conclusion, though TJ seemingly raises more questions than it answers, it still is the noble, overly obvious goal that should at the very least be considered in the legal profession. How much consideration? One has to hope that over time TJ will find its proper role.
1. Bruce J. Winick, The Jurisprudence of Therapeutic Jurisprudence, in LAW IN A THERAPEUTIC KEY: DEVELOPMENTS IN THERAPEUTIC JURISPRUDENCE 649 (David B. Wexler & Bruce J. Winick eds., 1997).