THERAPEUTIC JURISPRUDENCE SEEKS TO ACHIEVE A CULTURAL AND POLITICAL TRANSFORMATION OF THE LAW. HOW DO THE INDIGENOUS SENTENCING COURTS IN AUSTRALIA CONTRIBUTE OT THAT AIM?
THERAPEUTIC JURISPRUDENCE SEEKS TO ACHIEVE A CULTURAL AND POLITICAL TRANSFORMATION OF THE LAW. HOW DO THE INDIGENOUS SENTENCING COURTS IN AUSTRALIA CONTRIBUTE TO THAT AIM?* KATIE LUSH I
THERAPEUTIC JURISPRUDENCE
Upon entering the legal system, one can be forgiven for assuming that all emotions and the human psyche must be checked at the door. For many generations, law has been the domain of logic and facts only. The Common Law, it can be argued, has grown somewhat spontaneously from the character and needs of the people from which it originated.1 Both the law and society are dynamic and adaptive and therefore, the people shape the nature of the law and the law in turn shapes the behaviour of the people.2 The people in the seventeenth and eighteenth centuries, influenced by the enlightenment, sought to remove moral influence and emotional values from the law, which left it a very black and white field, dominated by logic and facts, where emotions and values had little place.3 Therapeutic Jurisprudence however, is a new move of the people, which seeks to achieve a political and cultural transformation of the law. This essay will discuss the development of Therapeutic Jurisprudence and the contribution Indigenous Sentencing Courts are making to this transformation of the law. The twentieth century has seen the rise, and now dominance, of the psychological and social sciences, in particular psychology and the understanding of how life events affect people’s emotions and behaviour.4 It is becoming increasingly apparent that legal activities ‘are not exclusively about abstract notions of justice but may also impact significantly on the psychological well-being of those involved.’5 Enter Therapeutic Jurisprudence, an area of study, which focuses on the emotional and psychological impact of the law on participants within the legal system.6 One of the great problems faced by the modern legal system has been its inability to effectively change the behaviour of an ever increasing section of the population. Courts are becoming overwhelmed with drug and domestic and family violence related crimes, and with increasingly *
Submitted for assessment in LAW2224 Julius Stone, Social Dimensions of Law and Justice, (Maitland Publications, 1966). 2 Suri Ratnapala, Jurisprudence (Cambridge University Press, Third edition, 2017) 262. 3 Ibid 204–228. 4 Richard Lowry, The Evolution of Psychological Theory: A Critical History of Concepts and Presuppositions (Aldine Publishing Company, 2nd ed, 1982) 197–241. 5 Marilyn McMahon and David Wexler, ‘Therapeutic Jurisprudence: Developments and Applications in Australia and New Zealand’ (2002) 20 Law in Context: A Socio-Legal Journal 1. 6 David B Wexler, ‘Therapeutic Jurisprudence: An Overview’ (2000) 17(1) Mount Cooley Law Review 125. 1
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