What is Therapeutic Jurisprudence?

Therapeutic jurisprudence (TJ) is a multidisciplinary examination of the law’s effect on the mental and emotional health of the people involved in the legal process. It focuses primarily on the psychological impact of legal rules and procedures as well as the behaviors of legal players like lawyers and judges. From a therapeutic jurisprudence perspective, the law is a social force that produces both therapeutic and anti-therapeutic consequences. Professor David B. Wexler originally coined the term in 1987 and further developed the concept with Professor Bruce Winick in their 1991 book titled Essays in Therapeutic Jurisprudence.

TJ initially applied only to mental health law and focused on how mental health and law interact. This approach was quickly adopted in other legal areas, including criminal, tort, and contract law. Nearly all areas of law have now been impacted by therapeutic jurisprudence. In addition to specific areas of practice, TJ is also applied to legal rules or laws, procedures, and roles.

Through the lens of therapeutic jurisprudence, the legal process creates therapeutic and anti-therapeutic consequences for all participants and for society in general. The goal is to become aware of these consequences and work to remake and reapply the law in a way that is more therapeutically beneficial while respecting values such as due process and justice.

A practitioner of therapeutic jurisprudence would take a legal rule such as America’s “Don’t Ask, Don’t Tell” provision that once prohibited homosexuals from serving openly in the military and examine the psychological consequences of its application. For example, under TJ this legal rule could be seen as having several anti-therapeutic consequences. As a person’s sexual identity affects many aspects of social life, a gay service member could feel isolated and marginalized and experience superficiality in social relations. Therapeutic jurisprudence is a method that teases out many of the law’s implications beyond those the drafters originally intended.

Legal procedures are also examined from a therapeutic jurisprudence perspective. A child custody hearing is seen as adversarial and therefore traumatic to both child and parents. The parents are encouraged to reveal the worst things about each other. Mediation or collaborative divorce are options that can be more therapeutic. A TJ scholar would draw attention to the negative aspects of a legal procedure and suggest alternative and more therapeutic ways of achieving the same resolution.

Therapeutic jurisprudence also works to reframe the roles or behaviors of judges and lawyers. A judge familiar with TJ may ask the person being sentenced to draft a plan that explains why he or she deserves a certain sentence and how he or she will be able to comply with the terms. Such techniques are believed to encourage people to take responsibility for their own rehabilitation.

Lawyers who apply therapeutic jurisprudence to their own practice may perfect their interpersonal skills. Such attorneys would adopt an ethic of care that promotes their clients’ psychological well-being throughout the legal process and work proactively to avoid legal problems and complications. TJ works to make those involved in the legal profession aware of the effects of their behaviors on all participants.