Legal education: Does therapeutic jurisprudence have a role?

Guest blogger Emma Jones reflects about the role that therapeutic jurisprudence can play in undergraduate legal education in the UK…

Legal education is one of the many areas in which therapeutic jurisprudence is increasingly being acknowledged.

However, to date, much of the relevant literature is focused on the US law degree.  The postgraduate and vocationally-orientated nature of this qualification appears to fit well with therapeutic jurisprudence’s practical slant and involvement in the comprehensive and preventative law movements.

In contrast, the law degree in England is an undergraduate qualification, and the majority of its graduates will not go on to a career in the legal profession.

Perhaps as a result of these differences, there is very little, if any, writing on the potential application of therapeutic jurisprudence to legal education in England.

I am of the view, however, that therapeutic jurisprudence does potentially have a significant and valuable role to play beyond the US.

The transferability of current US applications

In the US context, David Wexler has previously suggested that therapeutic jurisprudence has begun to be incorporated into legal education in two ways:

• through its introduction into the curriculum as a discrete topic or field of inquiry; and

• via its influence on US clinical law programmes.

In relation to the use of therapeutic jurisprudence as a discrete area of study, although there are certainly courses on mental health law running in some English universities, there is little in the outlines available to suggest that these have a therapeutic jurisprudence focus. While there may be the potential to introduce this area to the curriculum, it appears unlikely this will occur in the immediate future.

However, there does appear to be more potential for the incorporation of therapeutic jurisprudence via clinical legal education. This is well-established in England, with a recent survey identifying 62 University law schools with law clinics across the UK. A figure which represents roughly half of those institutions in the UK offering a qualifying law degree (a degree which enables graduates to move on to the vocational stage of training). Although the extent to which therapeutic jurisprudence is currently recognised or acknowledged is unclear, there is scope for its use to inform the theoretical and practical focuses of these clinics as its profile becomes increasingly raised internationally.

In particular, the use of therapeutic jurisprudence raises the issue of the psychological wellbeing of both clients and lawyers in a way which may be missing from more traditional approaches. It can also arguably assist in developing an understanding of interpersonal dynamics and ethical issues, as well as encouraging a reflective approach to lawyering.

A third way, often related, way in which therapeutic jurisprudence is also currently being applied with the US context is in relation to skills development. For example, the late Bruce Winick suggested that therapeutic jurisprudence can be a valuable tool to develop “lawyering skills”, using the example of a New Directions for Lawyers course taught at the University of Miami.

In England, the extent to which the law degree should be vocational in nature is highly contentious. However, there is a clear emphasis at both policy and institutional level on ensuring its graduates have developed appropriate legal skills. For example, the UK Quality Assurance Agency’s 2015 Benchmark Statement for Law talks about a law degree as including “the acquisition of legal knowledge, general intellectual skills and certain skills that are specific to the study of law”. The neo-liberalisation of higher education in the UK and the emphasis on graduates having transferable skills which enhance their employability have ensured that the acquisition of both legal and more general skills is now viewed as an important part of studying for a degree.

Using an approach which draws on therapeutic jurisprudence offers the opportunity for students to be introduced to “a humane, sensitive, empathetic and common decency approach to lawyering”. There are indications of approval of this type of approach within the recent Legal Education and Training Review for England and Wales (although its focus is more at postgraduate level). This, therefore, seems to offer further scope for the incorporation of therapeutic jurisprudence in the English context.

Student and lawyer wellbeing

As well as potentially transferring applications of therapeutic jurisprudence which have developed in the US, there are also arguably issues specific to English legal education which would benefit from its approach.

In particular, there is a lack of research into the wellbeing of law students in England. In contrast, there has been significant longitudinal research in the US on student wellbeing. Since 2009, it has also become the subject of sustained interest in Australia. Given the indications from the US and Australia that the law school experience can have a psychologically damaging impact on law students, the sparsity of empirical evidence in the English context is worrying.

Therapeutic jurisprudence’s concern for the “psychological wellbeing” of legal actors offers a potential theoretical framework for research into this area. Similarly, it could also be used to develop investigations into the wellbeing of members of the English legal academy.

Opening the door to an exploration of emotion

Finally, but perhaps most importantly, the concern of therapeutic jurisprudence with “the human, emotional, psychological side of law and the legal process” opens the door to explorations of the role of emotion in all facets of legal education, from teaching and learning to wellbeing and life after law school. It offers the potential for a more holistic form of legal education with insights from its use becoming an “integral facet” of the law school.

At a time when so much of English legal education is being reviewed and debated, the opportunity is here for a discussion of how therapeutic jurisprudence can, and should, become a part of its future.

Emma Jones,  Lecturer in Law, The Open University Law School, Milton Keynes, has a research interest in legal education and recently submitted a Phd thesis on the role of emotion in undergraduate legal education in England and Wales.

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