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Therapeutic jurisprudence and preventive law: A combined concentration to invigorate the everyday practice of law
... In preventive lawyering, the lawyer examines expected future legal risks and builds, with the client, a legal strategy that will reduce those risks. The lawyer achieves this by carrying out a regular 'legal check-up' (Stolle and Wexler, 1997). The lawyer interviews the client supported by an array of questions that surveys primary life domains and, based on this knowledge, builds with the client a legal strategy for treating present as well as potential future legal problems. ...
... The model suggested here is based on the fact that the approach to preventive lawyering is foreign to that of preventive social work, because the former includes elements of the therapeutic jurisprudence approach, which focus on the influence of legal rules and procedures on the client's well-being (Stolle and Wexler, 1997). Just as preventive lawyering seeks to assist clients in coping with the justice system through preliminary legal examination, preventive social work seeks to assist clients in coping with future difficulties (Hawkins, 2006;McCave and Rishel, 2011). ...
... In preventive lawyering, the lawyer examines expected future legal risks and builds, with the client, a legal strategy that will reduce those risks. The lawyer achieves this by carrying out a regular 'legal check-up' (Stolle and Wexler, 1997). The lawyer interviews the client supported by an array of questions that surveys primary life domains and, based on this knowledge, builds with the client a legal strategy for treating present as well as potential future legal problems. ...
... The model suggested here is based on the fact that the approach to preventive lawyering is foreign to that of preventive social work, because the former includes elements of the therapeutic jurisprudence approach, which focus on the influence of legal rules and procedures on the client's well-being (Stolle and Wexler, 1997). Just as preventive lawyering seeks to assist clients in coping with the justice system through preliminary legal examination, preventive social work seeks to assist clients in coping with future difficulties (Hawkins, 2006;McCave and Rishel, 2011). ...
Social workers are facing complex requests from clients coping with multi-system life problems resulting from the Covid-19 pandemic. Such requests require broad knowledge and innovative approaches. Macro-level Preventive Social Work, a new model based on preventive lawyering and social working, focuses intervention to minimize future problems created by the pandemic.
... lAid: Stolle and Wexler (1997) op. cit. ...
p>This thesis is based on 28 in-depth focussed interviews with women survivors of domestic violence which explored their perceptions and experiences of legal responses to domestic violence. The interviews were conducted and analysed using the theoretical framework and methods of Grounded Theory and feminist perspectives.
The research examines women's different 'pathways' through 'domestic violence law', including the criminal, civil and family law systems. Recent legal reforms focus on responding to domestic violence as a crime, holding perpetrators accountable, changing their behaviour and protecting 'victims'. In focussing on these aspects of 'domestic violence law' we miss crucial aspects of the meaning of law in survivors' lives. For the women in this research legal responses were part of breaking the silence surrounding domestic violence, seeking 'connections' with others, establishing power in the violent relationship and creating a new life apart from the perpetrator. Women's experiences reveal that, generally, legal responses failed to recognise these needs or to respond to the complex emotional journeys of surviving domestic violence. Legal responses also tended to silence, exclude and disempower women.
This thesis argues that there are 'therapeutic possibilities' for legal responses that 'heal' and 'serve' survivors of domestic violence. It is argued that we need to develop an understanding of the role of emotion in legal responses and in experiences of domestic violence and that empathy should be valued as central to legal practice. The thesis also argues that law should develop opportunities for empowering women at an individual and collective level.</p
... Legislation and the way the laws are interpreted has a profound effect on the people involved and none more so than the refugees seeking to be reunited with their families. It is widely accepted that refugees have typically sustained levels of psychological distress on their journey to the UK, and this continues following their arrival in safety (Stolle & Wexler, 1997 distressed at the administrative and sometimes legal processes ahead of them to be reunited, and their sense of helplessness and confusion as to the Byzantine asylum system facing them is palpable. Thus, the non-legal aspects or consequences (Patry, 1998) that the law may have and the broader context of the individual's interaction with legal processes (Wexler, 2005;; 2011b) may aid in a movement away from the typical adversarial paradigm/culture of conflict that has historically dominated the legal landscape in the UK (Karlberg, 2004). ...
This paper aims to highlight some of the key issues surrounding the development and application of immigration law as it applies in the United Kingdom (UK) to refugees attempting to be reunited with their families living abroad. The right for refugees to be reunited with their families is enshrined in international law, but this is frequently frustrated by the legal and administrative systems used in the UK. Using content analysis and doctrinal analysis techniques,the paper provides an examination of how a philosophy which considers the emotional effects of the law, therapeutic jurisprudence, could be used not only to inform interpretation of current domestic laws, but also influence the drafting of future legislation. This is an aspect of current refugee law in the United Kingdom which has yet to be examined. It provides, we argue, a humanitarian direction to statutory interpretation which may provide tangible benefits to current and proposed legal systems.
... A more recent development has been the therapeutic jurisprudence movement, which focuses on working therapeutically with (and within) the law (Stolle & Wexler, 1997). This movement advocates faith in litigants' abilities to heal and change their lives and identifies ways in which these values can be adopted by both the legal system and its professionals. ...
Surprisingly little research exists on the role of wisdom within legal decision making. To shed light on this topic, we interviewed 11 U.S. judges who were nominated by their peers for their legal wisdom. They were asked to describe their experience of wise legal decision making and the qualities and processes they felt characterize wise judges. Their interviews were subjected to a grounded theory analysis to develop an understanding of the psychological processes and interpersonal performances that constitute wise legal decision making. Among other findings, results identified attitudes in judges that were thought to lead to better decisions, such as an attitude of curiosity. They identified courtroom management styles that were characterized by magnanimity and compassion as instilling public faith in the system, in contrast to a distant or overly adversarial tone. They tended to agree that, when possible and within the confines of the law, rulings oriented toward rehabilitation were preferable to punitive ones. As well, wise judges described the ways they managed personal challenges arising from value conflicts or ambiguous evidence when making decisions. The article provides clarity on the meanings of the term wisdom within the judicial profession and its construction within the alternative discourses of retributive and procedural justice.
... The concept that laws designed to achieve therapeutic ends should be examined to determine whether or not they actually facilitate or impede these therapeutic aims is known as " therapeutic jurisprudence " (Stolle & Wexler, 1997; Wexler, 1996 Wexler, , 1990 Wexler & Winick, 1991). Child welfare law concerning the recognition, reporting, and processing of child maltreatment seeks to establish such a therapeutic standard. ...
The aim of this study was to examine the trajectory of cases through four systems: child protection, law enforcement, the dependency courts, and the criminal courts.
This study focused on a county selected from a 41-county telephone survey conducted for the National Incidence Study of Child Abuse and Neglect (NIS-3). For this analysis prospective samples were drawn from law enforcement (n=225) and the county child protection (CPS) agency (n=225) and followed through in-depth case tracking across all agencies and through both the dependency and criminal court systems.
The percentage of CPS cases opened in dependency court was similar to prior studies (29%), but the acceptance and prosecution rates were much higher--92% of the cases referred from CPS, including many cases of physical abuse. Compared to referrals from CPS to law enforcement (93%), few cases were referred from law enforcement to CPS (17%). Anecdotally, case referral patterns appeared to be influenced by communication patterns and mutual positive regard, regardless of the collaborative protocols in place. One of the most instructive findings was the degree of difficulty in tracking cases across organizations and the types of obstacles that impeded success. Disorganization was not an issue, rather internal structures set up to facilitate intra-organizational processing were the same structures that actually impeded cross-organizational case finding.
It is not sufficient to rely on the existence of multi-disciplinary teams or Child Advocacy Centers to ensure collaboration. More attention to daily tasks and activities as well as the nature and quality of communication is warranted. On the technical side, use of common case identifiers on cases that are cross-referred is strongly recommended. Future studies should broaden the scope of inquiry to include the consequences of all case trajectories, rather than solely focusing on the justice system.
An important reason why advance directive instruments are underused is that people faced with the need to think about the end of life, future mental health problems, or the need for nursing home admission experience psychological stress that produces denial and procrastination. This essay examines how lawyers who are counseling clients about advance directive instruments can deal with such client denial and resistance. It explains the psychological defense mechanism of denial and related forms of resistance and offers suggestions about techniques that lawyers can use for dealing with denial and resistance in counseling clients about advance directives. It suggests ways in which lawyers can develop their interpersonal skills, becoming more empathic and more sensitive to their clients' psychological needs.
This article explores traditional views of advance care planning in the broader context of advance personal planning, which also accounts for legal and financial matters. Criticisms of existing processes are noted, while the significance of interprofessional collaboration is highlighted. Reframing the purpose of advance personal planning as planning for the rest of life, rather than the end-of-life, and adopting a more holistic perspective informed by theory may help individuals to view advance personal planning as a routine, preventative exercise that safeguards their autonomy and well-being. Both lawyers and healthcare providers have an important role to play in reframing the purpose of advance personal planning. This revised approach is underpinned by the unification of two separate theoretical lenses: Preventive Law Theory and Therapeutic Jurisprudence. This combination enhances our understanding of what it means for people to truly achieve "the good result" (Holtz 2017) when planning ahead for their future legal, financial, health, and personal interests. Preventive Law Theory encourages an ongoing, collaborative relationship between lawyers and their clients, or healthcare providers and their patients, while Therapeutic Jurisprudence ensures an ethical approach to advance personal planning that accounts for all aspects of the individual's well-being, including consideration of vulnerability, autonomy, and empowerment.
Abstract
This book chapter contextualizes the origins of the proactive law movement to explain its current developments and advance its conceptual underpinnings towards applications of the perspective closest to the digital economy and electronic trade with regard to transactions and contracts. It aims at proposing transactional design as an expression of smart contracting practices, explaining its scope within the principled conflict management and dispute resolution collaborative culture. Additionally, standards of efficiency, effectiveness, and satisfaction are taken from within the computer sciences and the law to present an integrated taxonomy of usability parameters for the planning and assessment of sustainable business and other human transactions consigned in electronic texts mediated by technology. It is argued that the applicability of such integrated cross-disciplinary models is ensured given the growing reach and range of digital services and also because their formulation reflects the interconnected society principles, needs, and capacities. While featuring innovative aspects in alternative contracting practices, it refrains from addressing visualization in depth. However, the complexity of engaging with semiotic analysis of visualization techniques in legal interface design is signalled as an especially worthy field for further research.
Keywords
Contract usability Digital environment of business Collaborative digital transactions Conflict management and dispute prevention Proactive strategy Transactional design
Law schools have a responsibility to remind law students that by studying law they have the power to transform thoughts, policies and lives, and that practising law is not just about financial rewards, but that its greatest reward is contributing to the betterment of society and ultimately to social change. The values and philosophies that law lecturers instil in law students can contribute to the legal order of the future; a legal order that supports a transformative South Africa. A need exists to bring legal education closer to the values enshrined in our Constitution. In addition to an extensive knowledge of legal principles, critical thinking and research skills, law students should critically engage with our constitutional values. The question remains: How do we transform legal education in South Africa? How do we change the way we teach law students? The introduction of concepts such as therapeutic jurisprudence enhanced by our constitutional values will ensure that we deliver graduates that display a commitment to our constitutional vales and an ability to engage critically with these values. It is important to establish a professional legal identity amongst students from their first year as this will assist in the development of a well-rounded graduate that can contribute to the legal order of the future. Letter writing and drafting skills, the value of plain language, moot court activities, alternative dispute resolution and clinical legal education provide opportunities to integrate valuable therapeutic jurisprudence principles into the curriculum and can allow students to critically engage with our constitutional values. By embodying these values they can improve the legal system, shape our legal order and promote progress toward an equal and free democratic society as envisaged by the Constitution.
This chapter represents an effort to link concepts that appear to be and are commonly placed in distant theoretical areas but belong much closer together in practical terms: the principles of internet governance, and the networked information society converging in rules on one hand; and self-regulation competences required for collaborative and alternative conflict management on the other. They condense the public and the private roles in compatible regulatory models that could match sociability, economics and technologies of the times. It is an essay on competences, public policies that are not preceded by standards and principles that do not seem to have been captured by the laws. The institutionalization strategy on Alternative Dispute Resolution (ADR) and Online Dispute Resolution (ODR) for cross-border consumer redress in the European Union will be the reference to assess regulatory impact and argue for consistency. Legislating ADR and ODR aims at supporting electronic commerce as an essential component of the digital agenda; the flagship initiative that establishes the digital single market according to the European 2020 Strategy. Questions must be raised considering the marked emphasis placed on promoting social changes merely by passing new laws. The importance of understanding that the European Union is not capable of supplanting its members in turning institutional formulas into operational strategies is underlined, as well as a reflection on the need to support the social and economic transformations that have followed the remarkable developments in telecommunications and other digital technologies. Conceiving a European dispute resolution culture, enabled and mediatized by technological solutions is a viable solution to prevent more of the perceived shortcomings of public actions, and a truly innovative ODR systems design, could support the transition. This text invites the integration of concepts, disciplines and practices, respect for principles and their consistent application to solutions that could improve human transactions for a sustainable digital economy where empowered private actors can efficiently contribute to the ongoing collective transformations of the global governance.
New federal support for improvement in the handling of child welfare cases has made it possible for juvenile and family court judges to assess how well courts are implementing the Adoption Assistance and Child Welfare Act of 1980. This article first describes the purposes of the Act, and then suggest 23 steps to consider in attempts to improve the court process.
This article provides practical suggestions to assist attorneys in their representation of combat veterans with Posttraumatic Stress Disorder (PTSD) who encounter the forensic stress of litigation. The article considers permissible methods to respond to a client's stress responses that remain within the attorney's responsibilities under the Model Rules of Professional Conduct without transforming the attorney into a social worker. The article also discusses the hallmarks of competent collaboration with mental health professionals when representing clients with PTSD. In addition to applied examples of PTSD trigger awareness plans and other practical tools, the article identifies state psychology licensing boards that permit attorneys to engage in work of a psychological nature without psychology licenses and the standards under which such exceptions apply.
Therapeutic jurisprudence is an innovative, interdisciplinary field that integrates law and the social sciences by studying the role of law as a therapeutic agent. Therapeutic jurisprudence (TJ) acknowledges that law is a social force with inevitable effects on the mental health and psychological functioning of people. TJ recognizes that legal rules, legal procedures, and legal actors intentionally or unintentionally produce therapeutic or antitherapeutic consequences. TJ explicitly seeks to maximize the therapeutic consequences and minimize any countertherapeutic effects, so long as due process and other important values are fully respected. It therefore focuses on individuals' psychological and emotional well-being. TJ is equally relevant to legal reform, legislative efforts, appellate courts' opinions, lawyering methods and strategies, and the work of judges, police officers, and probation officers. TJ's insights have led to proposals for new laws, for changes in the way judges, lawyers, and other legal actors interact with others, and for changes in the processes by which existing laws are administered, applied, and enforced. TJ's applications have expanded from traditional mental health topics such as the insanity plea, civil commitment, the right to refuse mental health treatment, and competence to stand trial to many substantive areas such as: correctional law, criminal law, family law, juvenile law, disability law, labor and employment law, health law, evidence law, personal injury law, contract law, commercial law, probate law, the legal profession, mediation, and alternative dispute resolution. This chapter reviews the vast literature on TJ and explores its insights, challenges, and future.
Legislative and regulatory bodies around the globe have enacted over time an extensive corpus of law intended to improve the well-being of older persons and the quality of their lives. These statutes, regulations, and
executive orders, as well as evolving common law doctrines enunciated by the courts, provide special protections or create
distinct rights or privileges solely or at least partially on the basis of chronological age. Frequently, the older intended
beneficiaries must become personally involved – voluntarily or involuntarily – with attorneys and the legal system to take
advantage of the laws intended to serve their interests. Advocates for the older population (see generally Symposium 2004) generally make an assumption about the positive therapeutic efficacy for older persons of these laws and
involvement in the legal system, but we seldom actually carefully examine the validity of that assumption after a law has
been in place for a while or the elder’s involvement in the legal process has taken place. Such careful examination – an assessment
of the actual, rather than the theoretical, impact of the legal system on the older persons it is intended to serve, as well
as their families and society as a whole – is the goal of the Therapeutic Jurisprudence (TJ) concept.
This article reviews recent developments in health care law, focusing on the engagement of law as a partner in health care innovation. The article addresses: the history and contents of recent United States federal law restricting the use of genetic information by insurers and employers; the recent federal policy recommending routine HIV testing; the recent revision of federal policy regarding the funding of human embryonic stem cell research; the history, current status, and need for future attention to advance directives; the recent emergence of medical-legal partnerships and their benefits for patients; the obesity epidemic and its implications for the child's right to health under international conventions.
Social workers in all practice areas are affected by interactions with the law and legal systems. Unfortunately, the profession
has paid inadequate attention to education, scholarship, and practice in legal environments. This article introduces a new
perspective for examining social work and the law called “therapeutic jurisprudence,” which emanates from psychology/mental
health law. Therapeutic jurisprudence focuses on the therapeutic and antitherapeutic consequences of laws, legal rules, and
legal actions. It provides a framework for assessing legal issues, applying social science research to legal questions, and
structuring interventions in the legal environment. The authors argue that this perspective has the potential to serve as
a lens through which social workers can view the law and, ultimately, use the knowledge gained to achieve better outcomes
for clients.
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