Therapeutic Jurisprudence

Therapeutic jurisprudence is a study of the “law in action” and focuses on how substantive law and legal procedures can be reshaped, in order to result in improvements to the psychological, emotional and relational well-being of participating parties; in other words, how law reform can result in an increase in therapeutic/healing effects without the compromise of due process and other significant justice principles.

This therapeutic jurisprudence perspective should apply across the entire legal spectrum, including health law, criminal law, juvenile law and family law. It does involve consideration of all participants in the judicial process, which particularly implies parties to litigation (as well as their families), victims, offenders, witnesses and jurors. It especially extends to lawyers and judges and how their application of therapeutic jurisprudence, through models of practice which are more relationally engaged and less adversarial, can effect progressive social change which would not only benefit the judicial system, but ultimately the society at large. 

In fact, the underlying philosophy and objectives of therapeutic jurisprudence have been embraced by judges in the Caribbean, as reflected through Ramcharan v DPP (2022) CCJ 4 (AJ) GY at [88], where in the context of sentencing in criminal law it was stated: 

88. …sentencing is no longer to be viewed in a silo, as an adjudication limited to the interests of the State and the convicted person. Such a view is hopelessly myopic and divorced from lived realities. Arguably the persons most directly affected by a crime are its victims-survivors. Then their families, friends, and communities. And as well the larger society of persons who live in various degrees of relationships with each other. Thus, while the traditional and inherited approach has been to place the convicted person at the centre of the sentencing process, and they are object of sentencing, they alone are not affected by the process and outcomes. A therapeutic approach to sentencing that is fully aligned with all five sentencing objectives requires a more encompassing approach to a sentencing hearing. An approach that includes all relevant evidence to enable the making of informed assessments and decisions, and that at the same time unlocks the law’s capacity to be a source of healing and relevance for all persons, institutions, and communities that are affected by it. Indeed, for the entire society. 

In the justice system, therapeutic jurisprudence can emanate through the realms of procedural fairness, restorative justice and problem-solving courts.

Behavioural sciences studies have revealed that in the context of a court or other legal setting, people are more likely to accept and comply with the legal authority’s decision if they are treated with respect when they present their case, and if the authority’s processes are fair, and its motives legitimate. Such procedural fairness can only impact positively on psychological, emotional and relational well-being, the result of which would be the court user’s increased trust and confidence in the procedures, their willingness to comply with decisions even when not in their favour, and ultimately, their general positive assessment and experience of the court system. Procedural fairness rests on core elements such as voice, understanding, respectful treatment, trustworthy authorities, accountability, availability of amenities, access to information and inclusivity. Once these factors are involved in the overall court process, there can be healing and satisfaction for the court user and the ability to move forward, which is the focus and spirit of therapeutic jurisprudence.

Restorative justice is most applicable in the criminal justice arena as an enhancement to, and not as a substitute of, constitutional rights and procedural due processes. It seeks to bring together those harmed by the crime (victims), those responsible for the harm (offenders), and the community affected, into communication with each other. The aim of this collective, ‘restorative’, balancing process would be to resolve the conflict; facilitate healing for the victim through voice; rehabilitation of the offender through acceptance of responsibility; strengthening of the community through reparation/restitution; and prevention of future damage through remediation, so that all parties involved may advance positively into the future. Circumstances may be ‘restored’ to their status prior to the offence. Furthermore, the processes of reconciliation, reparation and remediation can lead to holistic healing, which is the hallmark of therapeutic jurisprudence.

The therapeutic jurisprudence perspective which views the justice process outcome as possibly transformative - the offender will never again appear in court - can lend the court a problem-solving characteristic. In such situations, approaches taken by the judge in the courtroom can promote the potential therapeutic effect of the law, without compromising due process and procedure. 

In Canada, a document published in 2011 entitled, Problem-Solving In Canada’s Courtrooms - A Guide To Therapeutic Justice, outlines problem-solving skills specifically for judges. These include communicating effectively; clarity in the courtroom; and adopting a team approach. Judges who succeed in implementing these skills would aid in the realization of procedural fairness, as well as the aims and process of restorative justice; this would result in the possibility for psychological, emotional and relational healing of court participants and consequently the positive experience of therapeutic justice before the courts. Specialized problem-solving courts have been established internationally, and here in the Caribbean, such as drug treatment courts, mental health courts, domestic violence courts and youth courts. 

The relational, interdisciplinary and healing focus of these courts facilitate the aim to identify and resolve the psychological issues underlying the legal problems, rather than on administering punishment or assigning blame. The success of these therapeutic jurisprudence problem-solving court techniques has actually led to the mainstreaming of these principles and practices to regular courtrooms where they can make a difference. It is in fact proposed that if therapeutic jurisprudence practices are extended into the ‘ordinary’ system, a more humanistic approach to law would evolve and expand into everyday life, which would maximize the therapeutic potential of the law on those it affects.

Outlined below is a comparison of the traditional court process and a transformed (based on therapeutic jurisprudence) court process, adapted from Roger Warren, ‘Reengineering the Court Process’ (1998) Presentation to Great Lakes Court Summit.