Mainstreaming Therapeutic Jurisprudence and the Adversarial Paradigm — Incommensurability and the Possibility of a Shared Disciplinary Matrix

320 Pages Posted: 1 Nov 2013

See all articles by Nigel Stobbs

Nigel Stobbs

Queensland University of Technology - Faculty of Law

Date Written: March 30, 2013

Abstract

Problem-solving courts appear to achieve outcomes that are not common in mainstream courts. There are increasing calls for the adoption of more therapeutic and problem-solving practices by mainstream judges in civil and criminal courts in a number of jurisdictions, most notably in the United States and Australia. Currently, a judge who sets out to exercise a significant therapeutic function is likely to be doing so in a specialist court or jurisdiction, outside the mainstream court system, and arguably, outside the adversarial paradigm itself. To some extent, this work is tolerated but marginalised.

However, do therapeutic and problem-solving functions have the potential to help define, rather than simply complement, the role of judicial officers? The core question addressed in this thesis is whether the judicial role could evolve to be not just less adversarial, but fundamentally non-adversarial. In other words, could we see — or are we seeing — a juristic paradigm shift not just in the colloquial, casual sense of the word, but in the strong, worldview changing sense meant by Thomas Kuhn?

This thesis examines the current relationship between adversarialism and therapeutic jurisprudence in the context of Kuhn’s conception of the transition from periods of ‘normal science’, through periods of anomaly and disciplinary crises to paradigm shifts. It considers whether therapeutic jurisprudence and adversarialism are incommensurable in the Kuhnian sense, and if so, what this means for the relationship between the two, and for the agenda to mainstream therapeutic jurisprudence.

The thesis asserts that Kuhnian incommensurability is, in fact, a characteristic of the relationship between adversarialism and therapeutic jurisprudence, but that the possibility of a therapeutic paradigm shift in law can be reconciled with many adversarial and due process principles by relating this incommensurability to a broader disciplinary matrix.

Keywords: Therapeutic jurisprudence, paradigm shift, Thomas Kuhn, Problem Solving Courts

Suggested Citation

Stobbs, Nigel, Mainstreaming Therapeutic Jurisprudence and the Adversarial Paradigm — Incommensurability and the Possibility of a Shared Disciplinary Matrix (March 30, 2013). Available at SSRN: https://ssrn.com/abstract=2347810 or http://dx.doi.org/10.2139/ssrn.2347810

Nigel Stobbs (Contact Author)

Queensland University of Technology - Faculty of Law ( email )

Level 4, C Block Gardens Point
2 George St
Brisbane, QLD 4000
Australia

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