Overcoming Myopia in RJ and TJ

Today we have a blog from David Wexler and Stella Maris Margetic. Their blog was inspired by Prof. Tali Gal’s superb editorial in the International Journal of Restorative Justice entitled, “Restorative Justice Myopia” (you can access the abstract here).

Gal’s point was that Restorative Justice (RJ) was myopic in its failure to look at its “cousin” known as Therapeutic Jurisprudence (TJ) and that the TJ literature might indeed have a lot of pointers that could be useful to RJ.

Of course, the same might be said about TJ and its failure to look to the RJ literature for approaches that might, in some way, prove most useful. Gal was in a perfect position to write her editorial as, from her home base in Haifa, she has specialized in both RJ and TJ, and she indeed has a firm grasp on what she is talking about!

Had she not been writing in an RJ journal but in a comparable TJ journal, she of course would undoubtedly speak of “Therapeutic Jurisprudence Myopia”.

We, the two authors of this modest Blog, David Wexler and Stella Maris Margetic, from Buenos Aires, Argentina, are both fully onboard with the reduction of myopia. For example, David recently co-authored an article with an RJ colleague from Ireland, Ian Marder, called ‘Mainstreaming Restorative Justice and Therapeutic Jurisprudence through Higher Education‘. And Stella gave an insightful presentation of the two areas together at the Seventh International Congress of Restorative Justice, organized by Scientific Society of Restorative Justice 2-5 of September of 2021. Among other things, Stella talked about:

1. RJ and TJ Relations

Each explicitly recognizes and values the potential of the law as an agent of positive interpersonal and individual change and seeks to produce a positive outcome such as healing, integrity, harmony, duties in law, and legal practice.  They are equally controversial concepts and combine regulatory frameworks and methodologies that are constantly being refined and rearticulated.  Both grew out of an analysis of modern criminal justice that sees it as an inhumane and ineffective process.   Both disciplines have matured in recent years, as generations of thinkers have identified and addressed theoretical limitations and contradictions, while also seeking to leverage early practices, overcome obstacles to implementation, and establish and evaluate new approaches.

2. Two common characteristics

(a) The desire to maximize the emotional, psychological and relational well-being of the individuals and communities involved in each legal matter; and (b) an approach that goes beyond the strict application of legal norms, responsibilities, duties, obligations and rights.   These two characteristics unify vectors and distinguish them from approaches that are more traditional to law and advocacy.

3. Differences in their development

Restorative Justice has moved from small-scale victim-offender reconciliation programmes (USA and Canada), criminal mediation (Europe) and family group conferences (New Zealand), to specialized services offering a range of practice models. Therapeutic Jurisprudence likewise, from its earliest applications in U.S. drug treatment and mental health courts, now underpins a number of problem-solving courts that differ in their target populations, targets, and composition. Beyond problem-solving courts, there has been a movement to bring TJ into the “mainstream” and a similar movement is occurring in RJ.

Although we are increasingly conversant with RJ and TJ, we strongly agree with Tali Gal on the need for operatives in both RJ and TJ to fight to overcome mutual myopia.

The impact of mutual myopia

The mutual myopia was especially driven home to us when the next editorial appeared in the International Journal of Restorative Justice, this time written by respected UK professor of law  Gerry Johnstone, entitled ‘Voluntariness, Coercion, and Restorative Justice: Questioning the Orthodoxy.’  Needless to say, this is an impressively and carefully constructed piece, with nuances and distinctions provided throughout. However, the editorial ends with the concern regarding:

“the habit of referring to restorative justice as a voluntary process has prevented restorative justice advocates from fully recognizing the coerciveness on which restorative justice practices rest. If it is believed that there is something intrinsically wrong with and ethically suspect about coerciveness, it is crucial to be fully aware of, and to fully acknowledge, the coercion involved in existing restorative practices and to develop a rigorous defense of such coercion.”

Gerry Johnstone

Here, the impact of the myopia is extreme! Twenty years ago, the co-developer of TJ, Bruce Winick, published ‘Therapeutic Jurisprudence and Problem-solving Courts’ (30 Fordham Urb. L. J. (2002), available on Kindle). He notes that operating in a coercive context does not equate with coercion. A person who accepts entry into a drug treatment court, for example, “is making a choice that is legally a voluntary one as long as he or she is not subjected to duress, force, fraud, or a form of improper inducement. People making such choices may be functioning within a coercive context. They face hard choices, none of which may be agreeable. But they find themselves in such difficult situations as a result of their own actions …. They are free to plead not guilty and face trial, or plead guilty and receive an appropriate sentence.  Extending them the additional option of accepting a rehabilitative alternative does not make the choice they then will face a coercive one.” (emphasis added).

Beyond this, Winick makes the highly relevant point:

“the concept of legal coercion does not necessarily coincide with the psychological perception of coercion.” And in that regard, he notes the major importance of judges, “treating the individuals they face with dignity and respect and according them voice and validation in the interactions they have with them.” Such behavior leads the person not to feel coerced!

Bruce Winick

There is much more to the above law review article and we hope interested persons will read it in full–or access pp 181-188 of the book by Winick and Wexler, Judging in a Therapeutic Key: Therapeutic Jurisprudence and the Courts (2003) (available on Kindle). And speaking of extreme myopia leads David to end on a touching note, not necessarily known about his remarkable and late friend:  Bruce was legally blind, had a cane and guide dog, Bruno (much love and well-known in the TJ community). Bruce did speed-reading through a listening device, dictated law review articles, and served as an incredible role model to persons with disability.

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Stella Maris I. Margetic LL.M., M.A., studied law and social work in the University of Cordoba, Argentina. She has been working as mediator and facilitator during the last 15 year in a Criminal Justice System of the City of Buenos Aires, Argentina.