By Linyanta Nwosu, CFCC Student Fellow (2019-2020)
Therapeutic Jurisprudence, or TJ as we lovingly refer to it in our Center for Families, Children and the Courts (CFCC) Student Fellows Program, is a means of examining the law’s impact on individuals and communities. TJ is often referred to as a “lens” through which laws are analyzed to determine their therapeutic or antitherapeutic properties.[1] Researchers of therapeutic jurisprudence are interested in the evaluation of the law’s impact on the populations it affects. The evidence gathered can then be utilized to influentially advocate for legal reform.[2] However, according to Bruce Winick, one of TJ’s founding fathers, therapeutic jurisprudence’s goal is not to paternalistically impose therapeutic norms[3]. While TJ utilizes social sciences as an evaluative tool, it does not always rely on or agree with what social workers, psychologists, or psychiatrists may believe is therapeutic. This is because TJ takes a broad view of the definition of the term therapeutic. In the world of therapeutic jurisprudence, “therapeutic” is determined by the person the law is acting upon[4]. In this way, therapeutic ideals are undergirded by self-determination and individual autonomy. While autonomy is an important right, it is not the only factor to be considered, and, luckily, TJ acknowledges that.
In The Jurisprudence of Therapeutic Jurisprudence, Winick expounds on how courts should respond when the interests of TJ diverge from legal dogma. In general, if there is a conflict between TJ and other values, TJ should not be the deciding factor[5]. This means it is common for TJ to take a backseat to other ethical and political theories when a convergence is unmet. Between opposing ideals, the deciding factor should be based on “an overarching theory of value that would assign weights to the various values in question.”[6] This balancing is typically accomplished by referring to the legislature’s attempt to create laws that democratically represent the citizenry and, thus, societal norms. When the conflict is based on a fundamental constitutional right, the courts will decide[7].
Despite regular concessions to traditional rules of law, TJ brings to the arena of political discourse a fresh angle to consider. By bringing TJ to the legal discourse, actors are told to consider the impact of their legal decision on the persons involved. In this way, legislators and judges, while free to ultimately uphold legal tradition and precedent, are presented with data demonstrative of how their decision will have either therapeutic or antitherapeutic consequences. In this way, TJ is a normative study of law akin to critical legal studies or law and economics. Therapeutic Jurisprudence argues that positive therapeutic effects should be the intention of the law, and antitherapeutic outcomes should be avoided or minimized.[8]
It is jarring, although not unfathomable, that prior to the 1990s when Therapeutic Jurisprudence was coined and its research begun, courts rarely considered the law’s impact on emotional, mental, and physical well-being. It has been said that for much of legal history, judges mechanically applied the laws to facts without consideration of societal impact[9]. Judges considered the judicial process to be a science rather than political in nature.[10] However, their belief was based on hollow fallacy. In their application of common law, they were applying the political norms of the day. The law has always been shaped by economic, social, and cultural forces. Law has not ever and never will exist within a vacuum. To believe otherwise is foolish.
As the law has always been influenced by the society that creates it, it is not unreasonable to expect said laws to have a symbiotic relationship with its citizenry. It is not unreasonable to demand that laws have positive impacts on mental and physical health. It is dismal and heartbreaking that the study of the impact of the law is a fairly recent endeavor. It is shameful that only in recent times have therapeutic impacts been associated with the practice of law. However, it is said, “Better late than never.” Therefore, I thank Mr. Winick, David Wexler, and a host of social scientists and legal researchers for their efforts in establishing a needed critique and application of the law. I believe with this new tool we can see positive outcomes for persons interacting with the legal system. I look forward to witnessing and being a part of the growth and improvements of TJ and preventive law during my time in CFCC and beyond.
[1] “What’s in a name? Thinking about Therapeutic Jurisprudence,” posted on the International Society for Therapeutic Jurisprudence blog (Oct. 2015), available at: https://mainstreamtj.wordpress.com/2015/10/30/whats-in-a-name-thinking-about-therapeutic-jurisprudence/.
[2] Bruce J. Winick, The Jurisprudence of Therapeutic Jurisprudence, in Law in a Therapeutic Key: Developments in Therapeutic Jurisprudence 645, 646 (David B. Wexler and Bruce J. Winick eds. 1996).
[3] Id.
[4] Id. at 648.
[5] Id. at 659.
[6] Id.
[7] Id.
[8] Id. at 649.
[9] Id. at 647.
[10] Id.