Guest Blogger Emily Stannard explores how legal actors can improve the therapeutic impact of their roles at an individual level, with immediate effect…
Therapeutic Jurisprudence (“TJ”) is the idea that “whether we know it or not, whether we like it or not, the law is a social force with consequences in the psychological domain”. The psychological impact of the law has typically not been an area of primary focus for lawyers, as lawyers are trained to apply the facts to the law in a rational manner.
TJ has four areas of inquiry:
* how the law creates social dysfunction;
* the therapeutic effect of legal rules;
* the therapeutic effect of legal procedures; and
* the therapeutic effect of legal roles (such as lawyers and judges).
Change to the overall structure of a legal system, to legal rules, and to legal procedures takes time, sustained effort, and movement by people at the helm of decision-making power. In contrast, legal actors can improve the therapeutic impact of their roles at an individual level, with immediate effect. Such changes are important.
The way legal actors behave can significantly influence the therapeutic or antitherapeutic impact of the law. In fact, it can be more important than the legal rules and procedures. This is evident in the following quote from a 2002 survey about the experience of Māori in Aotearoa New Zealand’s Family Justice System (“FJS”):
I don’t think that changing the Act will change much for Māori – it is still going to depend a lot on your ability to relate to your lawyer, or more importantly the ability for your lawyer to relate to you. It doesn’t matter what you do to it (the Act) if the system is still cold and hard and there is no education around it or human discussion given to it…[t]hey’re only going to sugar-coat the wording.
Concern about how legal actors treat people going through Aotearoa New Zealand’s FJS are present today. In a 2018 seminar, her Honour Judge Mary O’Dwyer said the three main challenges facing the Family Court today are the need to:
“Adapt to and cater for increased diversity;
Resolve our work with humanity and compassion; and
Deliver procedural fairness and build public confidence.”
All three of these challenges can be met, at least in part, by legal actors changing the way they go about their work.
TJ is one of the vectors of the comprehensive law movement, a trend in the law “towards a common goal of…more comprehensive, humane, and psychologically human way[s] of handling legal matters”. These vectors include restorative justice, preventive law, holistic law, collaborative law, facilitative mediation, and the problem solving courts.
The vectors have two things in common:
* a desire to maximise the wellbeing of those involved in a legal matter; and
* a focus on more than just legal rights, responsibilities, obligations, entitlements and duties.
The vectors other than TJ tend to focus on a normative way of achieving their aim. In contrast TJ is a lens through which to view the law. A lawyer practising TJ can use the other vectors to provide a normative way of making their practice more therapeutic, for example, using legal check-ups which emerged through preventive law. TJ can also be described as the “common thread running through the various [vectors]”. Either way, the use of other vectors can assist legal actors in improving the therapeutic impact of the law.
TJ promotes the use of other disciplines in the application of the law. TJ does not require legal actors to be experts in these areas. However, a basic awareness of attachment theory, the impact of violence, the impact of conflict, and knowledge of trauma will assist lawyers in understanding their clients’ needs and understanding their behaviour.
Aotearoa New Zealand’s Family Justice System
Aotearoa New Zealand’s FJS has a dual therapeutic and judicial mandate. The balancing of the two roles has created difficulty since the Family Court’s inception in 1981. The FJS has been reviewed four times. Each review has considered how the dual roles should be balanced. The most recent review was completed in mid-2019. There have been concerns that the FJS is not meeting its therapeutic mandate. While some of the concerns relate to the 2014 reforms, some have persisted for decades.
Some of the most pressing concerns predate the 2014 reforms. These include the FJS not meeting the needs of Māori, migrants or survivors of family violence. There have also been concerns raised about bullying by the professionals in the FJS. Family legal actors can practise TJ to improve their understanding of these issues and improve the way they treat people who are particularly vulnerable to being poorly treated by the FJS. For example, an understanding of tikanga could promote inclusion for Māori. Asking about dowries, in laws,and visas could prevent lawyers from missing important issues when working with migrants.
Many of the issues in the 2019 review focused on changes that legal actors could make. This is consistent with the fact that how legal actors carry out their work can promote or decrease the therapeutic impact of the law. The Independent Panel reviewing the FJS recommended the establishment of Te Korowai Ture-ā-Whānau, a multidisciplinary system, joining up in court and out-of-court processes. The Independent Panel’s recommendations almost universally promote TJ in the FJS.
An eye to the future
While the changes recommended by the Independent Panel are promising, they require proper resourcing to be effective. Some of the changes have come into play since the writing of my thesis, such as lawyers being able to act in on notice proceedings under the Care of Children Act 2004. Most of the recommendations have yet come in to play.
In the meantime, it is hoped that this thesis will encourage legal actors to use their roles to promote a therapeutic aspect of the law, independent of legal rules and procedures. It is possible answer the FJS’s challenges to adapt and cater to increased diversity, to resolve our work with humanity and compassion and to improve procedural fairness without waiting for legislative reform.
Emily Stannard is an associate at Willis Legal in Hastings, New Zealand.
Emily Stannard’s full thesis is available here.