TRANSFORMING LEGAL PRACTICES IN COURT AND BEYOND:
THE THIRD INTERNATIONAL CONFERENCE ON THERAPEUTIC JURISPRUDENCE, PERTH,
AUSTRALIA, 7-9 JUNE 2006
’DEJO
OLOWU[*]
BACKGROUND
To the uninitiated, the question that readily
presents itself is “What is Therapeutic Jurisprudence?” This is one
question I have had to answer time and again as my curious students and
inquisitive colleagues far and near wondered what my latest scholarly
fascination was all about as I rigorously prepared my presentation for this
conference. Therapeutic Jurisprudence, popularly referred to as
“TJ” among its purveyors and protagonists, evolved in the very late
1980s and early 1990s through the visionary efforts of two American legal
scholars, Professors David Wexler and Bruce
Winick.[1]
Although Therapeutic Jurisprudence had its roots in the field of mental health
law,[2] the concept has lent its
methods and processes to diverse interdisciplinary engagements with the law. The
idea of Therapeutic Jurisprudence has recorded remarkable inroads into the legal
dimensions of mental health and medical practice, family and matrimonial causes,
personal injury, diverse aspects of criminal justice (in the municipal context),
particularly as it relates to child offenders, drug offenders, sex offenders,
the treatment of victims, sentencing of repeat offenders, and so
on.[3] The interdisciplinary scholarly
engagement with these numerous fields has thus been tremendous and
far-reaching.[4]
What, then, is
Therapeutic Jurisprudence? Wexler and Winick offer a comprehensive definition of
this concept:
Therapeutic jurisprudence is the “study of the role of the law as a therapeutic agent.” It focuses on the law’s impact on emotional life and on psychological well-being. These are areas that have not received very much attention in the law until now. Therapeutic jurisprudence focuses our attention on this previously underappreciated aspect, humanizing the law and concerning itself with the human, emotional, psychological side of law and the legal process. Basically, therapeutic jurisprudence is a perspective that regards the law as a social force that produces behaviors and consequences. Sometimes these consequences fall within the realm of what we call therapeutic; other times antitherapeutic consequences are produced. Therapeutic jurisprudence wants us to be aware of this and wants us to see whether the law can be made or applied in a more therapeutic way so long as other values, such as justice and due process, can be fully respected.[5]
In measured but steady steps, the idea of Therapeutic
Jurisprudence has continued to earn recognition among scholars and stakeholders
in diverse fields who are committed to the promotion of stronger psychological
well-being and problem prevention in the legal system. Innovative ideas and new
insights continue to be proffered for improved lawyering, policing, judging,
conflict resolution, criminal investigations and forensic psychology. However,
diverse ethical, social and professional issues are yet to be addressed or even
investigated. Indeed, the full potentials of Therapeutic Jurisprudence are yet
to be explored in a broad range of human endeavours and disciplinary concerns.
The advancement of the cause of this innovative concept was the basis for the
first ever Conference on Therapeutic Jurisprudence held at the University of
Southampton, in Winchester, England in July 1998. The Second International
Conference on Therapeutic Jurisprudence was held between May 3 and 5, 2001, at
the Kingsgate Conference Centre of the University of Cincinnati, Cincinnati,
Ohio, USA. What has however not kept pace with the interdisciplinary growth of
this concept is the consideration of social and professional ethics arising from
those conference initiatives. The need to promote and enhance the articulation
of the theoretical and practical problems and prospects of Therapeutic
Jurisprudence was a primary objective of the organisers of this edition of the
conference.
INTRODUCTION
This conference was held from 7th
to 9th June 2006 at the magnificent Perth Convention and Exhibition Centre in
the scenic city of Perth, in the west of Australia. As testimony to the success
of the earlier conferences in 1998 and 2001, and perhaps to consolidate the
gains of the expansion witnessed in the field of Therapeutic Jurisprudence, the
Third International Conference on Therapeutic Jurisprudence was hosted and
jointly presented by the Australian Institute of Judicial Administration (AIJA);
the Magistrates Court of Western Australia; the International Network on
Therapeutic Jurisprudence; the University of Miami Institute on Law, Psychiatry
and Psychology; the School of Psychology, Faculty of Business and Law and School
of Law and Justice, Edith Cowan University; the International Association of
Drug Treatment Courts; the William & Mary Law School’s Therapeutic
Jurisprudence Programme; Association of Australian Magistrates; and the
Commonwealth Association of Judges and Magistrates.
In terms of the
attendance, there were about 200 delegates in all, from Australia, Canada, New
Zealand, Pakistan, Scotland, South Africa, the United States, and of course,
Vanuatu. In terms of the presentations and discourses, there were two plenary
sessions and over forty individual sessions with speakers drawn from the ranks
of judges, magistrates, practising lawyers, legal and other academics, social
workers, police officers, paralegals and professionals from diverse service and
treatment agencies.
CONFERENCE PROGRAMME HIGHLIGHTS
Day
1: Wednesday 7 June 2006
Welcome
In many ways, the
opening rendition by Elder Ben Taylor, an aboriginal Australian from the Nyungar
tribe of Western Australia, would remain an unforgettable experience in the
minds of many participants at the conference. That the organisers could even
allow an aborigine to seize the opportunity of the opening ceremony of such a
huge conference to vent what his people consider to be age-long marginalisation
and discrimination in the administration of criminal justice in Australia was in
itself therapeutic. This was quickly followed by the Welcome Address by the
Honourable Justice John Byrne of the Supreme Court of Queensland, who is also
the President of AIJA, the main hosts of the conference. The Honourable Jim
McGinty, the Attorney-General of Western Australia, made the formal opening
remarks immediately thereafter.
Plenary Session 1
The first
plenary session had the twin progenitors of Therapeutic Jurisprudence,
Professors Wexler and Winick take the podium to share their reflective thoughts
about developments in the field as well as its future. The session was titled
“Future Directions in Therapeutic Jurisprudence.” Professor Wexler
noted with gusto that even though Therapeutic Jurisprudence began in the
academia (theory), it has moved into diverse fields of practice and reality.
Observing that there are still lots of ground to cover in the discipline, he
advocated that the concept should be introduced into legal education curriculum,
bar examinations, legal clinics and so on. The erudite scholar noted that there
was no South American participant at the conference and pointed to the
possibility of language being a formidable barrier, suggesting that the
international expansion of the concept should be an issue of priority for all
stakeholders. On his own part, Professor Winick submitted that lawyers’
education should go beyond post-crisis and post-conflict activism, but should
rather equip law students with the skills that would make them relevant to the
psychological needs of adverse parties even before the outbreak of conflict.
After some incisive questions and responses, the conference broke into
simultaneous sessions following a short tea
break.
Sessions
One very remarkable element in the
organisation of the conference sessions was the way the sessions were
constituted and the papers listed for presentation in each session. The schedule
of sessions made every session as alluring as they were engaging for the
intellectual mind. The selection of presenters and their topics were equally
outstanding. While the first session had such topics as cross-cultural
relevance of Therapeutic Jurisprudence, its application in superior courts, its
application to family and domestic violence, its implications for mental health
tribunals, and death investigations, the second session had presentations on the
key challenges in evaluating Therapeutic Jurisprudence in its various areas of
application, the role of the concept in breaking the cycle of addiction and
crime, its relevance to gay/lesbians and aboriginal people’s status in
legal systems, and its significance for transitional societies. The third
session for the day covered such issues as Therapeutic Jurisprudence as a
sentencing tool, its implications for apologies and reconciliation, its impact
in mediation. This session also had the presentation by this author of a paper
titled “International Criminal Justice and the Promise of Therapeutic
Jurisprudence”, a cutting-edge effort seeking to advance the discourses in
the discipline beyond the frontiers of municipal law.
Sundowner
Reception
After the closing of the day’s multiple sessions of
brainstorming, the conference retired into relaxation mood: an informal welcome
reception for all participants. Professor Kerry Cox, Vice Chancellor of Edith
Cowan University, delivered a warm message of welcome. This was followed by the
exchange of healthy banters among conference delegates.
Day 2:
Thursday 8 June 2006
Workshop
The second day opened
with vigour as participants engaged in an interactive workshop with the theme
“Future Directions in Therapeutic Jurisprudence in Australasia: Practical
Steps for Information-Sharing, Education and Research.” This was the
session where participants were asked to raise ideas and suggestions on how the
conference organisers can promote the concept of Therapeutic Jurisprudence in
Australasia. The outcome was extensive and far-reaching as contributors
emphasised the need for rigorous integration of the concept into legal
education, judicial education and the establishment of a repository for the
dissemination of information and developments in the field of Therapeutic
Jurisprudence across the world.
Sessions
The day’s
sessions started with the first session covering brilliant topics on the role of
Therapeutic Jurisprudence in criminal law practice, ethical conundrums in the
field, forensic evaluations, and its role in drug courts. The second session for
the day engaged topics such as the place of Therapeutic Jurisprudence in civil
and commercial dispute resolution, in general adversarial practice, challenges
for its application in the magistrate courts, and its implications for the
training of court staff. The third session for the day witnessed presentations
on Therapeutic Jurisprudence as a preventative model of law practice; the role
of volunteers; ethical issues for judges in the application of the concept; and
the significance of architectural designs of court houses for therapeutic
purposes. The final session for the day had a panel discussion on
“Therapeutic Jurisprudence and Legal Education” and individual
presentations on how to enhance the effectiveness of the concept, alternative
strategies in Therapeutic Jurisprudence, and its relationship with restorative
justice.
Conference Dinner
The
official dinner for this great conference was held at the University Club of the
University of Western Australia. The Dinner Speaker was the Honourable Chief
Justice Wayne Martin, the Chief Justice of Western Australia. The three-course
meal was sumptuous and participants were treated to the best of famed Western
Australian wines. The dinner was a quintessential closing for a day of rigorous
intellectual discussions.
Day 3: Friday 9 June
2006
Plenary Session 2
The day’s business
commenced with the second plenary session on “The Synergy between
Therapeutic Jurisprudence and Drug Treatment Courts: national and International
Perspectives.” The speakers were Judge Peggy Hora, a retired judge of the
Superior Court of California, USA, and Professor Paul Moyle, the Foundation
Centenary Chair in Justice Studies at the Edith Cowan University. These two
eminent persons highlighted the positive trends that Therapeutic Jurisprudence
has brought to bear on the treatment, rehabilitation and sentencing of drug
offenders and particularly repeat drug offenders around the world. Both of them
were quick to point out that there remains quite a lot of work to be done in
integrating the concept into every facet of drug treatment courts. After morning
tea, the conference broke into the day’s
sessions.
Sessions
The first session had presenters who
examined “Judging in a Therapeutic Key”, the possibility of merging
Therapeutic Jurisprudence with restorative and community justice, Therapeutic
Jurisprudence from the perspective of court administrators and social workers.
After lunch, the second sessions for the day had such topics as Therapeutic
Jurisprudence in the drug courts of Scotland and New South Wales; the role of
the concept in “problem-solving courts”; and the dimension of child
protection. The day’s final sessions covered the application of
Therapeutic Jurisprudence in specialist court jurisdictions across diverse
jurisdictions.
The conference was ‘wrapped
up’ for closing at about 5.00pm by Dr. Andrew Cannon, Chair of
AIJA’s Education Committee.
CONCLUDING COMMENTS
The
hitherto hazy and humble interdisciplinary concept which Professors Wexler and
Winick developed less than two decades ago has transformed into a baobab of
ever-widening intellectual endeavours. These twosome scholars have indeed
bestowed a lasting legacy on our world. The Third International Conference on
Therapeutic Jurisprudence held at the Perth Convention and Exhibition Centre, a
bravura of an edifice, in June 2006, will remain an ineffaceable testimony to
this assertion.
From its organisation, the presentations, the intellectual
discourses and the atmosphere of camaraderie, this was a successful conference
in every way. The vision of its organisers was clear and all participants were
unmistakably enthusiastic and vibrant. One can only look forward to broader
platforms for Therapeutic Jurisprudence discourses and engagement – beyond
the Western world. On the whole, the practical experiences shared at this
conference from diverse geo-political regions of the globe confirm that the
future of Therapeutic Jurisprudence is bright and promising.
In a world deeply troubled by mass and individual
conflicts and tensions, and one riddled by increasing challenges for the
administration of law and justice, the significance and relevance of the
discipline cannot be overemphasised. Without being immodest, the future of
credible pursuit of criminal justice, peace and conflict resolution, and indeed
numerous civil disputes, lies in the auspicious concept of Therapeutic
Jurisprudence. The task at hand is to propagate its tenets, methods and
processes across legal, moral, social and interdisciplinary planes.
Far from
being an ex cathedra view of all the dynamic highlights from this
remarkable conference, this piece would have served its purpose if it becomes a
constant reminder of the continuous need to investigate the unexplored
potentials of this emergent concept.
[*] LL.B (Hons.), LL.M (Ife);
LL.M Human Rights & Democratisation (Pretoria); PG Dip. Int’l Hum.
Rts. (Åbo Akademi); JSD Cum Laude (Notre Dame); Barrister &
Solicitor (Nigeria); Lecturer, University of the South Pacific School of Law,
Port Vila, Vanuatu. Articles Editor, Journal of South Pacific Law.
E-mail: djolowu1@yahoo.co.uk. I am grateful to the Conference Programme
Committee for the fee waivers granted to me, and to the University of the South
Pacific School of Law for approving the leave that enabled me to attend and
participate in this landmark
conference.
[1] See Ellis S.
Magner, ‘Jurisprudence Forum: Therapeutic Jurisprudence: Its Potential in
Australia’ (1998) 67 Rev. Jur. U. P. Rev. 121, 121; David B. Wexler,
‘Therapeutic Jurisprudence and Legal Education: Where Do We Go From
Here?’ (2002) 71 Rev. Jur. U. P. Rev. 177,
178-180.
[2] Bruce J.
Winick, ‘The Jurisprudence of Therapeutic
Jurisprudence’ (1997) 3 Psych. Pub. Pol. & L. 184,
185.
[3] Notable scholarly efforts
on some of the fields mentioned here that directly implicate “therapeutic
jurisprudence” include: David B. Wexler, ‘New Directions in
Therapeutic Jurisprudence: Breaking the Bounds of Conventional Mental Health Law
Scholarship’ (1993) 10 N.Y.L. Sch. J. Hum. Rts. 759; Bruce J. Winick &
David B. Wexler, ‘Drug Treatment Court: Therapeutic Jurisprudence
Applied’ (2002) 18 Touro L. Rev. 479; John A. Bozza, ‘The Devil
Made Me Do It: Legal Implications of the New Treatment Imperative’ (2002)
12 S. Cal. Interdisc. L. J. 55-84; Mark A. Hall, ‘Law, Medicine and
Trust’ (2002) 55 Stan. L. Rev. 463-527; James McGuire, ‘Maintaining
Change: Converging Legal and Psychological Initiatives in a Therapeutic
Jurisprudence Framework’ (2003) 4(2) W. Criminology Rev. 108-123; Bill
Glaser, ‘Therapeutic Jurisprudence: An Ethical Paradigm for Therapists in
Sex Offender Treatment Programs’ (2003) 4(2) W. Criminology Rev.
143-154; Jennifer Marie Sanchez, ‘Therapeutic Jurisprudence and Due
Process in the Juvenile Parole Revocation Process: An Arizona
Illustration’ (2005) 7(1) Florida Coastal L. Rev. 111; David K. Malcolm,
At the Cutting Edge: Therapeutic Jurisprudence, 6 May 2005, at
http://www.supremecourt.wa.gov.au/speeches/pdf/CuttingEdge-Therapeutic_%20Jurisprudence_%20Conf2005.pdf
(Accessed 06 July 2006).
[4] See
Alan Tomkins & David Carson, ‘International Perspectives on
Therapeutic Jurisprudence – Part II’ (2000) 18 Behav. Sci. & L.
411, 411 (observing that “Therapeutic Jurisprudence is
flourishing”). See also Wexler, TJ and Legal Education, above note
1, at 179 (noting the expansion of scholarly efforts in the field of therapeutic
jurisprudence); Susan Daicoff, ‘Law as a Healing Profession: The
“Comprehensive Law Movement”‘ (2006) 6(1) Pepp. Disp. Resol.
L. J. 1, 11 (remarking that therapeutic jurisprudence has received recognition
in “more than 581 articles and eighteen books” since 1990).
[5] David B. Wexler & Bruce J.
Winick, Law in Therapeutic Key: Developments in Therapeutic Jurisprudence
xvii (1996).