USQ Law Society Law Review
Katie Lush
Winter 2021
high rates of recidivism.7 Professors David Wexler and Bruce Winick examined and reviewed a legal system steeped in logic and fact, which primarily focused on punishment, to determine the extent of therapeutic and antitherapeutic outcomes produced.8 Wexler and Winick subsequently developed a framework that discussed ‘the law as legal rules, legal procedures and the roles and behaviours of legal actors.’9 They describe Therapeutic Jurisprudence as a ‘lens’ through which to examine the processes of the legal system and their effectiveness for desired outcomes.10 By simply asking different questions, Wexler and Winick began a dialogue that has enabled participants within the legal system to begin finding creative solutions to some of the more substantial problems. They have encouraged proponents of Therapeutic Jurisprudence to ‘look carefully at promising literature from psychology, psychiatry, clinical behavioural sciences, criminology and social work, to see whether those insights can be incorporated or brought into the legal system.’11 This examination of legal processes through the lens of Therapeutic Jurisprudence has led to numerous reforms being developed which ‘enable the legal system to focus more on problem-solving, without sacrificing the rule of law [or] the principles that our legal system serves, such as predictability and stability.’12
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PROBLEM SOLVING COURTS
As participants within the legal system, in particular judges, shifted their focus towards problem solving, there began the development of what is now known as problem solving courts. These include drug courts, domestic violence courts, mental health courts, and Indigenous sentencing courts. What makes these courts different from those in the mainstream system is their focus on producing an outcome which not only satisfies the law, ‘but also promotes the resolution of underlying problems such as substance abuse or domestic violence. They seize upon a moment when people are open to changing dysfunctional behaviour - the crisis of coming to court - to give them the opportunity to change’13 The rise of problem solving courts has begun a cultural and political transformation of the law, especially amongst the judiciary and legal practitioners. ‘In this movement, there is a very strong interest in the "new" lawyering, and in lawyering and judging with an ethic of care.’14 Attempting to solve the complex social issues which the legal system faces on a daily basis, has forced both the judiciary and legal practitioners to seek far more holistic and creative approaches to their clients and their work. Problem solving courts are one of the positive results of this process.
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Susan Daicoff, ‘The Future of the Legal Profession’ (2011) 37(1) Monash University Law Review 7, 8. Wexler, ‘Therapeutic Jurisprudence: An Overview’, above n 6, 125. 9 David B Wexler, ‘From Theory to Practice and Back Again in Therapeutic Jurisprudence: Now Comes the Hard Part’ (2011) 37(1) Monash University Law Review 33, 33. 10 David B Wexler, ‘Therapeutic Jurisprudence’ (2004) 20 Touro Law Review 353, 357. 11 Wexler, ‘Therapeutic Jurisprudence: An Overview’, above n 6, 129. 12 Shirley S Abrahamson, ‘The Appeal of Therapeutic Jurisprudence’ (2000) 24 Seattle University Law Review 223, 223. 13 Michael King, ‘What Can Mainstream Courts Learn from Problem-Solving Courts’ (2007) 32 Alternative Law Journal 91, 91. 14 David B Wexler, ‘New Wine in New Bottles: The Need to Sketch a Therapeutic Jurisprudence Code of Proposed Criminal Processes and Practices’ (2014) 7 Arizona Summit Law Review 463, 479. 8
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