I cannot imagine a more dangerous branch than an unrestrained judiciary full of amateur psychiatrists poised to “do good” rather than to apply the law.
– Judge Morris Hoffman

Some critics of therapeutic jurisprudence argue that when judges adopt a therapeutic role they act beyond both their expertise and beyond their proper functions as judges.

Are these objections to therapeutic jurisprudence (‘TJ’) a fearful reaction to what is actually positive reform of the legal system?

Breaking it down – what is therapeutic jurisprudence?

TJ is a tough concept to pin down. It has been described as a ‘school of social inquiry’, a ‘study’, an ‘interdisciplinary approach’, a ‘research agenda’, a ‘paradigm’, a ‘global law reform philosophy’, and a form of ‘pragmatic incrementalism’.

So what are we actually talking about? These vague and wordy descriptions are all effectively trying to say the same thing – TJ is not an established theory or practice, it is still developing and changing even as you read this blog.

At its most basic level, TJ is about ensuring that the wellbeing of people who interact with the justice system is taken into account, not just their legal status.

Some argue that this focus on wellbeing is a reaction to ‘McJustice’ – the emergence of legal systems looking more and more like production lines that are struggling to keep up with the increase in caseloads and demands of court processes. This has meant that courts have been forced to pump out short-term legal outcomes instead of addressing the underlying social causes of offending to stop people ending up back at court and back in jail.

It’s important to note the diversity of approaches in TJ, which is the result of how the jurisprudence has developed within and outside of specialist courts – such as drug courts, family violence courts and Indigenous sentencing courts.

Despite these variations, here are a few common themes:

  • Wellbeing: a focus on the psychological and emotional wellbeing of individuals who come through the court, not just their strict legal status.
  • Problem-solving: taking a more holistic and integrated approach to understanding issues, including an acknowledgement of the social and economic dimensions of legal issues.
  • Interaction and communication: providing opportunities judges to ask more questions and engage with people in the courtroom and empowering offenders and victims to speak for themselves.
  • Collaboration: taking an interdisciplinary approach by working more closely with  specialists from other disciplines – including psychologists, social workers, doctors and other services.
  • Non-traditional roles and processes: allowing for flexibility of court processes and the role of judges and court officers to ensure that the legal process is adapted to the needs of those who are using it.

Another way of thinking about these features is David B Wexler’s wine/bottle metaphor and methodology. Wexler describes the law as consisting of both the legal landscape – these are the bottles and include rules of law and legal procedures, as well as the roles of legal actors – this is the wine and include judges, court officers and lawyers.

TJ principles can be understood as producing both better bottles as well as producing more judicious wine.

Let’s keep running with the bottle/wine metaphor for a bit. Last Christmas, I was introduced to Sparkling Shiraz. I’m not a fan. And I think that this is a little like TJ’s critics fear of TJ manufacturing ‘amateur psychiatrists’. Sure, while bubbles are great in certain circumstances – lemonade, tonic water, baths – they have no place in Shiraz.

I believe that this is how TJ critics feel about judges’ adoption of mental health approaches in the courtroom. Psychiatry is valuable and important, but not an appropriate tool to be employed by judges, who have a very different level of authority to your average psychiatrist.

But while my fear of the unconventional when it comes to Sparkling Shiraz is entirely subjective and causes virtually no harm to anyone (okay, apart from my Sparkling Shiraz-loving relatives), TJ critic’s fear of the unconventional therapeutic function of judges can be assessed objectively and perpetuates problems with our justice system that cause real harm to the mental wellbeing of those who interact with it.

What does a therapeutic approach require of judges?

An important starting point in understanding how a judge acting therapeutically differs from conventional judging roles, is to clearly state that therapeutic jurisprudence does not displace a judge’s conventional functions. A judge still has the same responsibilities to the law and should view these responsibilities as paramount. 

As well as these conventional functions, a judge acting therapeutically will consider how they can promote rehabilitation, be sensitive to the wellbeing of victims and reduce the likelihood of future offending.

Judges employing TJ approaches will consider their role in promoting behavioural change for offenders so that offenders take responsibility for their own actions.

This serves the goal of breaking the cycle of reoffending and decreases demand for court processes.

Sentencing law in the Australian State of Victoria empowers judges by allowing for judicial supervision, meaning that judges can build relationships with offenders, generating greater trust in the legal process and leading to ownership and acceptance of sentencing outcomes.

A judge’s role will also extend beyond rehabilitation by focusing on the wellbeing of victims, ensuring that that harm caused to victims by a particular offence are emphasised and understood by offenders. This ensures that victims have a voice in the courtroom and assists offenders to develop empathy for victims and take responsibility for their actions.

These therapeutic approaches, which involve judges taking an active role in promoting behavioural change, do not require that judges are qualified psychiatrists or therapists. They do however require that judges have an understanding of the fields relevant to a particular issue – for example addiction for drug-related offences.

Many of us, however, are not from a health or behavioural science background and so this territory is unfamiliar and not within our skill set. There is need for professional development in this area.

– Magistrate Pauline Spencer

Appropriate investment in training and professional development for judges and other court actors is key in addressing concerns raised by critics of TJ.

Is therapeutic justice important or essential?

Okay. So TJ is an interdisciplinary school of pragmatic, paradigmatic social inquiry, research and global law reform that has broad variations across different contexts, is somehow related to wine bottles and requires specialised training and professional development for judges wishing to adopt its approaches. Is it really worth it?

Absolutely. Here are four reasons why:

  1. We must acknowledge that the implementation and operation of our legal system affects the psychological wellbeing of those who interact with it. While adversarial systems of justice remain largely ignorant of this fact, TJ acknowledges it and seeks to improve wellbeing.
  2. Particularly during court hearings, there is a missed opportunity to effect behavioural change in offenders interacting with the court system to reduce reoffending. The interactive approaches of TJ provide greater scope for offenders to take responsibility for their actions.
  3. We now have a greater understanding of social sciences. TJ ensures that the law is keeping up with these advancements and acting cooperatively with these disciplines.
  4. Research demonstrates that solutions-focussed approaches have are both more effective and efficient – they reduce reoffending, promote better emotional wellbeing outcomes and are generally cheaper.

The law and legal systems are remarkably resilient to reforms. We need to be utilising all the approaches we have to ensure that our systems are keeping pace with the rest of society. The mainstreaming of TJ approaches represents a key opportunity for law reform and progress.

This may require that judges receive further training and specialisation, and may even be vulnerable to judges overstepping their role at times. However, it is not a call for judges to serve as imposter psychiatrists, but simply an acknowledgement of the basic fact that at the moment our legal system causes harm to people’s wellbeing. And in this day and age, anything less than this acknowledgement is an amateur approach to justice.

Guest blogger Geordie Fung is a final year law student at Monash University, Australia. He is also the Head of International Engagement at Oaktree: Australia’s largest youth-led anti-poverty organisation.

This post is first in a series of posts on this blog written by students studying Non-Adversarial Justice at the Faculty of Law at Monash University
Students were invited to write blog posts relating to therapeutic jurisprudence to blog readers. The very best post on each topic is published on this blog.

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