The Ethics of Therapeutic Jurisprudence: A Critical and Theoretical Enquiry of Law, Psychology and Crime

By Arrigo, Bruce A. | Psychiatry, Psychology and Law, April 2004 | Go to article overview

The Ethics of Therapeutic Jurisprudence: A Critical and Theoretical Enquiry of Law, Psychology and Crime


Arrigo, Bruce A., Psychiatry, Psychology and Law


For more than a decade, therapeutic Jurisprudence has informed legal procedures, rules, institutions and actors. Most recently academic and applied criminologists have seized upon this doctrine to interpret the behavior of criminal justice programs, agencies, and personnel. The expressed purpose of therapeutic jurisprudence is to assess, through social and behavioral science inquiry, the impact of the law on the mental and physical wellbeing of individuals affected by legal decisions and processes. As such, therapeutic jurisprudence aims to conceive of and rely upon the law as a therapeutic agent, thereby promoting the interests of a more just and civil society, At issue in this article is whether the central normative dimension of therapeutic jurisprudence limits (and erodes) prospects for humanism and justice, promoting instead a logic of identity that displaces (and denies) individual and group differences. This is a pervasive ethical dilemma at the core of therapeutic jurisprudence, especially in its relationship to mental health law and criminological enquiry. To substantiate this claim, this article examines how therapeutic jurisprudence wrongly assumes law's legitimacy, neglects (or dismisses) the ideology embedded within legal texts, promotes a unitary moral subject in law, and fosters a state of false consciousness among citizens. Contributions from anarchist theory, feminist jurisprudence, postmodern psychoanalysis, and critical legal studies inform this critique.

**********

During the past decade, much has been written about therapeutic jurisprudence (e.g., Sales & Shuman, 1996; Winick, 1997a; Wexler & Winick, 1996), including studies that investigate contentious and thorny issues in civil (Perlin, Gould & Dorfman, 1995; Winick, 1994a) and criminal (Arrigo & Tasca, 1999; McGuire, 2003; Winick, 1998) mental health law. Most recently, criminological inquiries have appropriated the insights of this doctrine to examine such phenomena as the ethical dilemmas clinicians confront in sex offender treatment programs (Glaser, 2003), re-entry programs for ex-convicts (Maruna & LeBel, 2003), and battered immigrant women processed through the criminal justice apparatus (Erez & Hartley, 2003). Studies such as these indicate that therapeutic jurisprudence is of considerable practical interest to the legal and criminological community.

Throughout this period of sustained intellectual curiosity, researchers occasionally have explored the scope (Wexler, 1995) and potential limits of the doctrine (Slobogin, 1995), have commented on its relationship to justice (Wexler, 1992), or otherwise have examined the phenomenon's jurisprudential basis (Winick, 1997b). To date, however, scant attention has been given to any critically-inspired (Arrigo, 1999a, 2002a) investigation of therapeutic jurisprudence. Thus, for example, we know very little about the epistemological assumptions on which the doctrine is based, or how these philosophical suppositions comport with its central normative aim of studying "the role of law as a therapeutic agent" (Winick, 1997b, p. 185).

This article endeavours to address these shortcomings. In particular, I examine what it means to assert that law can function therapeutically. In other words, notwithstanding the values and insights of mental health as applied to legal and criminal justice procedures, rules, institutions, and actors, I question whether and to what extent the doctrine of therapeutic jurisprudence is itself egregiously flawed, given its underlying normative belief system. Indeed, although advocates of therapeutic jurisprudence seek to "produce a critical psychology that ... force[s] policymakers to pay more attention to the actual, rather than the assumed, impact of the law and those who implement it" (Slobogin, 1995, p. 219), thus far no analysis has been undertaken assessing what the epistemological assumptions of the doctrine are, and how these suppositions undermine and undo its expressed purpose.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

The Ethics of Therapeutic Jurisprudence: A Critical and Theoretical Enquiry of Law, Psychology and Crime
Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.