By Barbara A. Babb, University of Baltimore School of Law, Associate Professor of Law, and Director, CFCC
I founded the Sayra and Neil Meyerhoff Center for Families, Children and the Courts (CFCC) in August, 2000, with Therapeutic Jurisprudence (TJ) as one of its two underlying theoretical constructs. Indeed, TJ informs and frames all of CFCC’s work. Many academics have heard of TJ, and the legal and judicial communities are becoming increasingly familiar with its meaning and implications for the practice of law. Nonetheless, there are some misconceptions surrounding TJ and its application. For example, one popular misconception is that TJ calls for judges and lawyers to be experts in psychology or social work.
Professor David Wexler, one of the two co-founders of TJ, and I recently published an article in the Encyclopedia of Criminology and Criminal Justice that helps to explain the evolution of TJ, its meaning, and its impact on the law across a wide range of practice areas.
Therapeutic jurisprudence is a field of inquiry that “focuses on the law’s impact on an individual’s emotional and psychological well-being.” Professor Wexler and I explain:
“TJ looks at the law as a social force that can produce therapeutic (helpful) or antitherapeutic (harmful) consequences. These consequences flow from substantive law, legal rules, and legal procedures (the “legal landscape”) and from the behavior (the “practices and techniques”) of legal actors, including lawyers, judges, court personnel, and others working within a legal context… Therapeutic jurisprudence aims to produce tangible, positive change: to promote the well-being of all legal actors and to improve the justice system so that it is more relevant and helpful for participants and their communities.”
As we point out, TJ is a lens or framework through which to examine the legal and judicial systems. TJ asks us to think about the law in a very different way—to view the law as a helping profession rather than as an adversarial process in which there are always winners and losers. TJ urges judges and lawyers, for example, to consider the impact of their decisions and actions on the well-being of the parties who come before them. It asks all legal actors to think beyond the immediate facts of a case and to take into account the potential consequences, both intended and unintended, of their actions and decisions.
Addressing issues of marriage, divorce, custody, child support, adoption, property, and protection, among other issues, family law has a profound impact on people’s lives and well-being. Family law and the family justice system also include the child welfare system, or child abuse and neglect cases, and the juvenile justice system, or juvenile delinquency cases, both of which regularly define and/or change the trajectory of a child’s life.
Although TJ does not demand that judges and lawyers become social workers or psychologists, it does call for an interdisciplinary approach to judicial and legal decision-making. The social sciences offer important and helpful perspectives.
I believe that lawyers and judges in the family justice system should be trained to identify and address the legal and non-legal reasons underlying a family’s problems. They also should be taught to examine the connections and interactions among family members, as well as the relationship of the family to community institutions. Judges and lawyers who use a holistic approach to strengthen these connections and who can find creative solutions to a family’s legal and non-legal issues are the true problem-solvers that these families and children need and deserve.