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Therapeutic Jurisprudence

Therapeutic jurisprudence is an interdisciplinary approach to legal scholarship and law reform that sees law itself as a therapeutic agent. Legal rules, legal practices, and the way legal actors (such as judges, lawyers, police officers, and expert witnesses testifying in court) play their roles impose consequences on the mental health and emotional well-being of those affected. Therapeutic jurisprudence calls for the study of these consequences with the tools of the behavioral sciences so that we can better understand law and its processes. Scholars using this approach suggest ways in which law can be reshaped to minimize its antitherapeutic effects and maximize its therapeutic potential. The field is interdisciplinary in that it brings insights from psychology and the other social sciences to bear on legal questions; it is empirical in that it calls for the testing of hypotheses concerning how the law functions. Much of the existing literature is conceptual in nature, although some of it contains an empirical component.

Psychological Health as a Goal

Therapeutic jurisprudence suggests that law should value psychological health, should strive to avoid imposing antitherapeutic consequences whenever possible, and, when consistent with other values served by law, should attempt to bring about healing and wellness. Therapeutic jurisprudence does not privilege therapeutic values over others Rather, it seeks to ascertain whether law's antitherapeutic effects can be reduced and its therapeutic effects enhanced without subordinating due process and other justice values.

Therapeutic jurisprudence does not suggest that therapeutic considerations should trump other considerations. Law often serves other ends that are equally or more important than the therapeutic. It seeks convergence between therapeutic and other values and suggests that such convergence is the path to true law reform. When therapeutic and other values served by law conflict, therapeutic jurisprudence cannot resolve the conflict. Rather, it helps to make this conflict more visible and sharpens the issues for further debate. Sometimes therapeutic considerations may strongly outweigh other values and thus point the way to law reform. Although the weighing of therapeutic against other values may be a task that some might describe as comparing apples and oranges, it is possible to weigh differing values, even those thought of as incommensurable. When therapeutic and other normative values do not converge, one nevertheless can often find creative solutions that permit maximized balancing among such values with a minimum of conflict.

Scope of Research and Its Application

Therapeutic jurisprudence, therefore, is a scholarly approach for bringing mental health insights into the development and reshaping of law. It evolved out of the work of David Wexler and Bruce Winick in mental health law, and it has since spread across the legal landscape, emerging as a mental health approach to law generally. Therapeutic jurisprudence has examined issues not only in mental health law, but also in such diverse fields as criminal law, juvenile and family law, health law, disability law, tort law, contracts and commercial law, trusts and estates, evidence law, and constitutional law. Moreover, therapeutic jurisprudence has become increasingly international in character, with researchers examining legal rules and practices in many countries in addition to the United States.

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