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

Article excerpt

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.

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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. …