Review – Carol M. Romey
BOOK PRESENTATION: PRACTICING THERAPEUTIC JURISPRUDENCE, LAW AS A HELPING PROFESSION BY DENNIS STOLLE, DAVID WEXLER & BRUCE WINICK [FNa1]
Carol M. Romey
Copyright © 2001 by Revista Juridica de la Universidad de Puerto Rico; Carol M. Romey
I. What Is Therapeutic Jurisprudence and How is the Field of Study Developing?
Over the past thirteen years, Therapeutic Jurisprudence has surpassed the initial expectations of its authors, David Wexler and Bruce Winick, of presenting a methodology for studying the therapeutic and anti-therapeutic aspects and consequences of mental health law. Therapeutic Jurisprudence has become a field of inquiry whose scope extends to all areas of law, the underlying ideological foundations of legal processes and systems, and to the nature and dimensions of professional roles.
Therapeutic Jurisprudence was introduced in 1987 as a methodological approach to study selected issues and topics in law. Rather than focusing on traditional interdisciplinary methods and research designs wherein each professional field maintains its autonomy in a joint effort, Therapeutic Jurisprudence sought to explore the commonalities and shared concerns through conceptual models that examined the areas that interfaced professional fields. The nature of the interaction between professional groups, legislative intent and public policy issues, and social science literature became basic elements in the proposed studies.
Different kinds of questions were being asked by those working on Therapeutic Jurisprudence projects. Questions targeted the centers of controversies and touched all parties in discomforting ways. Questions such as, Why do protective orders increase the risk of women being killed in domestic violence cases? Why is the best interests of the child standard not guaranteeing children’s welfare and reducing the negative psychological impact of divorce on children? The initial focus of Therapeutic Jurisprudence was on how law reform can achieve therapeutic goals and how existing laws could be made more therapeutic in their application.
The initial appeal of Therapeutic Jurisprudence was its ability to translate abstract concepts of social justice into manageable research questions that then mobilized new sectors to get involved in problem solving tasks. Groups that had little experience in research but vast experience in direct services, lawyers, judges, teachers, and proponents of public policy, found themselves drawn into the search to find out why the law was obtaining contradictory results from those it was intended to achieve. From the beginning, Therapeutic Jurisprudence was a mobilizing strategy that was able to breakup major social problems into manageable units for reflection, analysis, and social change. The essential ingredient in Therapeutic Jurisprudence was networking and connecting diverse sectors into a common problem solving task.
We see in the new book, Practicing Therapeutic Jurisprudence, the results of 13 years of intensive networking, integration of diverse fields of study, as well as the incorporation of generations of professionals from the seasoned and battle worn to the newest generation of professionals still in our classrooms. Therapeutic Jurisprudence is making a significant contribution to the growing body of scientific knowledge on human behavior, law in society, and international and comparative law. Therapeutic Jurisprudence is expanding the database available for legal decision-making and public policy review.
Therapeutic Jurisprudence views the study of law as process oriented. The nature of law and legal controversies; lawyers, their clients, the courts and the relationships between them, are the units of study. Therapeutic Jurisprudence is a dynamic field of scholarship wherein the emphasis is on the empirical testing of assumptions underlying theories of judicial rules, and social and psychological theories. Therapeutic Jurisprudence has not remained at one level of analysis and does not suffer from nearsightedness. Therapeutic Jurisprudence includes itself as an object worthy and needful of study.
II. New Challenges in Therapeutic Jurisprudence
With the publication of Practicing Therapeutic Jurisprudence, professors Wexler, Winick and Dr. Stolle have introduced significant dimensions to their work. Therapeutic Jurisprudence takes a stronger position and broader scope as to professional accountability. Those who propose, write, interpret, study or implement the law, share, in part, responsibility for the psychological, social and predictable consequences of the law. No longer can we be case specific in our work without reflecting on the larger meaning and scope of what we are doing. We must consider the overall impact of our work on our clients, social issues and effectiveness. Practicing Therapeutic Jurisprudence enters into the realm of private office practices and targets specific interpersonal professional relationships thus bringing professional accountability much closer to everyday practices, attitudes and expectations.
For example, as a clinical and forensic psychologist sensitive to Therapeutic Jurisprudence, my task in a case of a 20 year old homeless and mentally ill youth, charged with petty theft, should include not only the clinical assessment of mental competency, but also assess the youth’s state of social marginality. Whether he can be reintegrated into productive society? Will the diagnostic process push him further down the road to disability, incompetence and powerlessness or become a turning point in his life where he is given options to choose from?
Instead of documenting the youth’s diminished capacities to substantiate a reduction in sentence or have the charges filed, it may be in his best interests to assume responsibility for his actions and propose a payment plan from his street corner earnings, to pay back the stolen goods. Is my professional duty best exercised by focusing only on this young man’s mental competence for these charges, or should I assess the person, his life stage, and present circumstances and propose a diagnostic impression that includes a problem focused approach to get him off the streets and reconnected to a social group as a contributing member? Practicing Therapeutic Jurisprudence provides the analytical framework wherein larger social issues can be conceptualized on a collective and individual basis. With the emphasis on professional accountability, we must not only treat, assess, counsel or advise the person but also consider the consequences of the decisions and opinions taken.
In addition to accountability, Practicing Therapeutic Jurisprudence underscores the fiduciary duty in the practice of law. No longer can we work with the law and in legal areas and not consider the economic, social, moral, ethical and psychological impact of our work on the person and collectivity. We have a duty to anticipate and take measures to reduce the harm that may be caused by legal interventions and processes. At times I have warned lawyers in personal injury cases, you may win this case but if the litigation continues for much longer and at this level of conflict, you may lose your client to suicide. Practicing Therapeutic Jurisprudence seeks to reduce the carnage of litigation by design. With a focus on the quality of the lawyer- client relationship from the outset of a case, Practicing Therapeutic Jurisprudence aspires to reduce the need for referrals for treatment to help the parties survive the divorcing process, initiate preventive strategies that anticipate and address the psychological harm caused by sexual harassment, and ameliorate the factors and conditions that contribute to burnout for all professionals that work in close contact with the law.
The collection of studies in Practicing Therapeutic Jurisprudence take the step forward from praising the intuitive abilities and natural therapeutic qualities that some people possess to incorporating the expectation of compassion and cultural sensitivity as an essential part of everyone’s professional role. We are expected to be able to enter into the other person’s inner world. We are expected to try and understand their context and be sympathetic to the options before them and the struggle in decision making they are facing. For those that are weak in these areas of interpersonal competence, these qualities of sensitivity and compassion can be learned. Interpersonal skills and competencies should be taught as part of curriculum and required for graduation.
Psychology and the legal profession, as viewed by Therapeutic Jurisprudence, are moving away from an ethical framework based on morals, virtues and personal qualities such as the capacity for compassion, ability to trust, and humility. To quote Gerald Koocher & Patricia Keith-Spiegel, “[p]rofessional conduct in line with principle ethics is seen as acting according to moral principles (do no harm, respect personal autonomy, accord dignity, and accept accountability). Subscribing to principle ethics implies that ethical behavior can be fostered and be the result of professional obligation and deliberate adherence to rules rather than moral commitment according to one’s conscience and personally held standards.” [FN1]
Principle ethics conflicts with traditional ethical cannons of zealous advocacy wherein the lawyer is expected to suspend moral judgment and advocacy is the goal. In psychology and after Tarasoff, we no longer tell our clients that in ethical dilemmas their welfare will come first. We tell them that should the safety of third parties be at risk, our first professional responsibility is to the community at large and welfare of others. Our second level of duty is to our professional standards and the standard of care. Lastly, and after these two levels of duty have been exercised, we will consider the client’s welfare. Zealous advocacy, in psychology, would probably risk ethical violations and put the community at risk.
Practicing Therapeutic Jurisprudence looks to the teaching of law, curriculum revision and the training of lawyers as new areas for potential change. New trends in professional training posits that if one is not naturally compassionate, sensitive and respectful, one can learn to be so. Clinical judgment can be taught. The professional judgment standard can be defined and explained. As lawyers move into more encompassing roles, care must be taken in those areas that touch on personal and professional boundaries, dual roles and bartering for services. The potential for abuse and exploitation increases.
The model of client-centered lawyering may be inappropriate given its focus on advocacy from the client’s viewpoint. The lawyer may be held accountable by professional standards and fiduciary duties to relate to the client’s legal situation in ways that do not foster individual interests over a community standard. The exploration of new roles and expectations for lawyer/client relationships proposed in Practicing Therapeutic Jurisprudence may require a revision of ethical codes and re-training for those whose professional development followed traditional models of advocacy and adversarial role modeling.
Practicing Therapeutic Jurisprudence introduces the novel task of analyzing psycho-legal soft spots in case management. The process of law, the relationships between people, and the ethics of the process are as important as the outcome of litigation. The analysis of psycho-legal soft spots as a teaching and capacitating tool for continuing education provides a framework for highlighting and sensitizing the dynamic aspect of a case’s development in an explicit and systematic way. Case developments become units of analysis that are then generalized to larger constructs to teach awareness and responsibility for the outcomes of small decisions we make throughout a case.
Practicing Therapeutic Jurisprudence leaves us with lingering questions when we look at the expectations for research. Are the tools of the social sciences adequate for measuring outcomes of human interaction? How do we deal with empirical uncertainty in every day life? We had better find out. The only way to improve research designs is by seeing if they can adequately address our questions. The Therapeutic Jurisprudence lens can help us with blind spots in law.
Let’s briefly look at one such blind spot and see how the Therapeutic Jurisprudence lens can help clarify areas in need of study. At a time when cultural diversity and awareness are requirements for professional practice, we have areas of law and psychological thought that date back in history. For example, how would one begin to design an empirical study to test the reliability and falsifiability of the dying declaration as an exemption to the hearsay rule? The first problem is that we enter an area of law that is thought to be based on indisputable judicial fact. Spontaneous declarations of a dying person are thought to have a special quality that allows their admission into evidence, as an exception to hearsay evidence. The question becomes how could Therapeutic Jurisprudence methodology help free research in this area from the restraints of ideology and limitations of social science research methods?
Let’s look at the task before a research project on dying declarations. First of all, one must examine the ideological foundation of a dying declaration. I suggest the basic postulates of the Dying Declaration as an exemption to the hearsay rule to be:
1. Presupposes a religious belief system wherein there is a belief in the afterlife;
2. That at the time of death, one will come face to face with one’s creator (that is stress);
3. That this face-to-face encounter will inspire a moral transformation in those that have not lead exemplary lives;
4. Presumes that one fears God;
5. That if one should lie at the moment of death, there are serious consequences such as going straight to hell with no further opportunities for repentance;
6. Presumes that one is aware of the fact that one is about to die and that death is final;
7. That one is able to intellectually function just prior to one’s death in a rational, organized, coherent and goal directed manner;
8. Assumes that one is competent to be able to die and offer a dying declaration;
9. Assumes that the motive to lie is silenced by one’s awareness of the imminence of death;
10. Assumes that at the precise moment facing death, one’s mind is induced to speak the truth;
11. Basically assumes that the dying declaration is a religious experience.
12. There is likewise a parallel premise structure for the listener to a dying declaration.
Are these universally held truths? Are there any universally held truths that law wants to uphold for all citizens? Have these premises been subject to empirical study and debate in the social sciences? What are the variables that you would use to measure the construct of dying declarations? What information would you need to know to be able to assess the reliability of a dying declaration? Can the dying declaration construct be subject to testing? What is the margin of error in dying declarations? What would a Daubert gate-keeping hearing have to say as to the scientific foundation upon which the dying declaration is based? Could there be some problems with cultural diversity and sensitivity issues in the assumed universality of the dying declaration religious model? We have a lot of work to do with ideology and research methods that hopefully the Therapeutic Jurisprudence lens will continue to help direct our efforts in these soft and blind spots.
Before concluding, I would like to comment on the contributions of Professors Wexler & Winick. In Professor Wexler and Winick’s personal styles we find qualities that are rare in academic settings. Their little attention to professional titles and co-authorship recognition and eagerness to work with experienced and novice colleagues are signs of mental health. They evoke confidence that the ideas behind Therapeutic Jurisprudence can stand on their own merit and that their mark in history is made and need not be reaffirmed and proclaimed at every opportunity.
Both Professor Wexler and Winick have a high degree of acceptance and openness for different understandings of Therapeutic Jurisprudence. They do not correct people and set them straight so that others think like they do. Therapeutic Jurisprudence is not imposed on research projects or ideas under consideration. It is an attitude towards data collection, reflection, and responsibility; however you want to do it.
Professors Wexler and Winick enjoy their work as instigators and mentors. They are able to keep a balance between digging for more meaning and letting the student/colleague find their way without pushing, dominating, or turning the relationship into one-upmanship or another opportunity for ego enhancement.
The research style of Therapeutic Jurisprudence is directly linked to Professors Wexler and Winick’s personal styles wherein intellectual property rights are not possessed but willfully shared. Participation is open, colleagues are treated with confidence inspiring tact and given psychological space wherein they are listened to, their ideas reflected upon, and joined with others who are actively engaged in similar or parallel research.
Professors Wexler and Winick have incredible skills of networking and connecting that require an enormous amount of hard work, thoughtfulness, commitment to an idea, and stamina. While they serve as the key link between new combinations of people, professions, countries and ideas, their own lives carry the burdens of maintaining continuity, stability and focus.
[FNa1]. DENNIS STOLLE, DAVID WEXLER & BRUCE WINICK. PRACTICING THERAPEUTIC JURISPRUDENCE, LAW AS A HELPING PROFESSION (2000) (presented at the University of Puerto Rico, School of Law on November 29, 2000).
[FN1]. GERALD KOOCHER & PATRICIA KEITH-SPIEGEL, ETHICS IN PSYCHOLOGY, PROFESSIONAL STANDARDS AND CASES 5 (2d ed. 1998).
