Therapeutic Jurisprudence

Author(s): Barbara A. Budjac Corvette

Source: Sociological Practice , June 2000, Vol. 2, No. 2 (June 2000), pp. 127-132
Published by: Sage Publications, Inc.

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Sociological Practice: A Journal of Clinical and Applied Sociology , Vol. 2, No. 2, 2000

Commentary

Therapeutic Jurisprudence
Barbara A. Budjac Corvette1

The title of this paper bears the name of a relatively new field of scholarly
inquiry. This paper describes and briefly reviews that field for the purposes
of expanding awareness about it and stimulating thought regarding its use-
fulness as a model for sociologists.
KEY WORDS: research paradigm; jurisprudence; legal consequences.

Therapeutic jurisprudence arose as a distinct paradigm of inquiry in

the early 1990s. It was first introduced, however, in 1987 by David Wexler,
a Professor of Law and Professor of Psychology, in a paper written for a
workshop sponsored by the National Institute of Mental Health (Finkelman
and Grisso 1994). By 1991, two volumes on the topic had been published
(Wexler 1990; Wexler and Winick 1991). At least two conferences on
therapeutic jurisprudence have been held - one in June 1992, organized by
the Law and Psychiatry Program at the University of Massachusetts Medical
Center, and another in April 1993, at the New York Law School. Today,
the scholarship is published in both legal and medical journals as well as
in social science journals. Sample social science journals include Medicine
and Law , Behavioral Sciences and the Law , Politics and the Life Science ,
The Journal of Contemporary Health Law and Policy , Contemporary Psy-
chology, and Law and Psychology Review. It is an interdisciplinary enter-
prise designed to produce scholarship useful for understanding the human
impact of law in the broadest sense and with the ultimate purpose of being
useful for legal reform. The field has been described as a mental health
approach to law generally (Winick 1997). Its scholarship explores ways in
which knowledge and theories of the social and health sciences and humani-

1 Saint Augustine's College, Division of Business, Raleigh, North Carolina 27602. e-mail:
bcorvette@ES.ST-AUG.EDU.

127

1 522-3442/00/0600-01 27$ 1 8.00/0 © 2000 Plenum Publishing Corporation

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 128 Corvette

ties can he
insights fr
law (Wexle
falls within
Therapeut
the legal r
theme and
of Roscoe
perspectiv
more intell
and to whi
actual socia
Therapeut
rules, legal
is on the c
rests on th
quences and
in analyzin
therapeutic
justice valu
doctrine fo
stantive law
antitherap
analyzing r
1993).
Efforts in therapeutic jurisprudence have focused primarily on mental
health law, although there is appearing a second generation of scholarship
addressing a variety of areas in the law (Wexler, 1993a). Some of those
areas are tort law, mandatory child abuse reporting, federal sentencing
guidelines, laws staying executions of the mentally incompetent, treatment
of prisoners, juvenile court procedures, drug treatment programs, and legal
rules governing psychotherapy practice (see Perlin 1993). Scholars have
also explored the potential for the law to increase treatment efficacy by
exploiting the psychological value of choice in health care decisions (Winick
1993) and the potential for rehabilitation of criminal offenders (Gould
1993).
Most of the work that has been conducted under therapeutic juris-
prudence thus far has not been empirical. It has been characterized as
"informed speculation based on psychological theory or clinical experience
as to whether some aspect of the legal system is therapeutic and how
changing the law might shift the system in a more therapeutic direction"
(Finkelman and Grisso 1994). Finkelman and Grisso (1994, p. 249) empha-

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Therapeutic Jurisprudence 129

sized "the difficulties that atten

social issues." Nevertheless, some
For example, Shuman et al (1994
health effects of jury service in
incidence of depression in those
than in the general population o
trials. Posttrial group discussion
effects of trial.2 Shuman and col
theories of group dynamics perti
sions; however, they suggested t
making promises insight into healt
Conceptual-theoretical research
cally structured as follows: Introd
tion of the Psychology to the L
1991). Wexler has summarized th
own papers. He undertook to dem
for increasing patient compliance
the legal system and used by jud
condition agreements. In doing so,
suggest that one who signs a con
more likely to comply (Wexler 1
In another application of the t
Gould (1993) conceptualized how s
such as those permitting sentenc
or acquitted crimes, may foster r
Many scholars in the field are
sciences. Much of the scholarshi
juris doctor degree and a doctor
of lawyers and psychologists.
province of academic scholars, a
marily microanalytic (see Wexler
analytic studies include examination
laws and/or related specific lega
the field, Wexler and Winick, hav
such as examinations of the healt
p. 21) has called for "expanding
beyond the conventional contours
an eventual "instrument of law r
jurisprudence has eschewed a tig

2Cases classified as traumatic involved m

aggressive personal violence.

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130 Corvette

similarly le
or antither
has also inv
its emphas
in-action r
peutic juris
law approa
A recent s
criminal ju
Winick. Us
(1999) cond
behavioral
antitherape
a cognitive
theory. Th
efficacy of
peutic effec
suggests, am
the antithe
Therapeuti
tic approac
pretations
action. Furt
with the cu
affecting s
will as well
It is appro
the tools of
pology, soc
beyond the
The role o
negative eff
health - of
It suggests
justice valu
and positive
of people g
jurispruden
conflicting
false - cons
does seek a
are justifie

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 Therapeutic Jurisprudence 131

goals - economic or environmen

choice may be a conscious one. T
the legal decision-making process
It is acknowledged that some v
theories from the social sciences
harmful. One admonition is to ta
of another discipline. One admon
to an indefinite range of interpre
particular cognitive meaning or
theories to be applied may be in er
tion intended to serve some part
Conclusions of therapeutic juri
of the vagaries which afflict soci
and uncertain and sometimes ch
be errors. Legislative bodies and
notice of social science knowledg
from the application of misconst
behavioral science theories to th
change in the normal process of
errors and/or changing values. T
enlightenment. While recognizin
jurisprudence does not seek to r
human effects.
Whatever is produced by therapeutic jurisprudence or any interdis-
ciplinary approach to the law should be, and is, open to scholarly and public
debate. Nevertheless, vigilance must be kept in selecting theories on which
to base conclusions. Vigilance must be kept on the researcher's personal
perspective and prejudices.
Law is not pure, nor is it divorced from reality. Legal concepts function
in legal contexts and legal concepts function in encompassing social con-
texts. To utilize most effectively social and behavioral science theories
toward an understanding of law, cognizance of the meanings within both
disciplines is necessary.
I suggest that formal application of the therapeutic jurisprudence
model to sociological research may prove fruitful. The spirit and perspective
of the model are consistent with the spirit and perspective of sociology as a
discipline. Therapeutic jurisprudence and sociology have much in common.
Both are holistic, concerned with behavior, and concerned with social policy
and human impact. Sociologists with knowledge of and experience in the
legal system should be particularly well equipped to utilize the paradigm
to make significant contributions. Collaborations among sociologists and
legal scholars may prove most beneficial.

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 132 Corvette

REFERENCES

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Gould, K. A. 1993. 'Turning Rat and Doing Time for Uncharged, Dismissed,
Crimes: Do the Federal Sentencing Guidelines Promote Respect for the L
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Perlin, M. L. 1993. "Symposium: What Is Therapeutic Jurisprudence?" New York Law School
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Pound, R. 1912. "The Scope and Purpose of Sociological Jurisprudence." Harvard Law
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Small, M. A. 1993. "Legal Psychology and Therapeutic Jurisprudence." Saint Louis University
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