In Defence of Therapeutic Jurisprudence: Threat, Promise and Worldview
27 Pages Posted: 8 Nov 2013 Last revised: 29 Jan 2021
Date Written: November 6, 2013
Therapeutic jurisprudence has inspired and influenced a range of criminal law and justice reforms which offer some light at the end of the tunnel for traditionally wicked socio-legal problems such as offender recidivism. Prominent among these reforms are the rise of the specialist sentencing (problem solving) courts and court supervised treatment programs. But in a policy terrain dominated by regular ideological and political swings, and by significant economic pressures, there are proposals for these reforms to be more widely adopted, not by the convening of more specialist courts, but by mainstreaming their practices and procedures. This paper examines some significant resistance to those proposals.
The adversarial legal paradigm is grounded in a deeply entrenched political and economic, liberal worldview. This worldview, heralded by Fukuyama as ‘the end of history’, manifests itself in the legal system as a normative adversarialism — with an assumption that contests are normal and necessary modes of social organization. Within Western cultures, the liberal political order, with its almost exclusive focus on the rights and liberties of the individual as the benchmark for human flourishing, is seen as the most natural for human societies and, if we accept Fukuyama’s perspective, the best to which we can aspire.
Within this worldview, some scholars (from across a range of disciplines) argue that legal adversarialism and an associated ‘culture of conflict’ have become seen as not only endemic but as paradigmatic, to the extent that to question them is to attack the very core of modern liberal society. In that context, some of the most trenchant critics of therapeutic jurisprudence see it as ‘profoundly dangerous’ in that it threatens the rejection of ‘fundamental constitutional principles that have protected us for 200 years.’ These critics are, in some important senses, correct. But the veracity of these critical observations speak to the strength and promise of therapeutic jurisprudence as part of a wider, therapeutic worldview. One person’s threat is another’s promise.
Therapeutic jurisprudence represents, not just a tinkering with the edges of legal practice and procedure, but a powerful diagnostic lens through which to view adversarialism and its intimate dependence upon the liberal worldview. It hints at a more robust and mature worldview which can give us a clearer understanding of the existing legal order. This paper explores why this creates fear for opponents of therapeutic jurisprudence. It argues that adversarialism may be very difficult to replace as the core ethos of common law legal systems because, in a number of senses it is perceived of as part of what it means to be human.
Keywords: Therapeutic Jurisprudence, Theory, Liberalism, Adversarialism
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