The Ethics of Therapeutic Jurisprudence: A Critical and Theoretical Enquiry of Law, Psychology and Crime

For more than a decade, therapeutic jurisprudence has informed legal procedures, rules, institutions and actors. Most recently, academic and applied criminologists have seized upon this doctrine to interpret the behavior of criminal justice programs, agencies, and personnel. The expressed purpose of therapeutic jurisprudence is to assess, through social and behavioral science inquiry, the impact of the law on the mental and physical wellbeing of individuals affected by legal decisions and processes. As such, therapeutic jurisprudence aims to conceive of and rely upon the law as a therapeutic agent, thereby promoting the interests of a more just and civil society. At issue in this article is whether the central normative dimension of therapeutic jurisprudence limits (and erodes) prospects for humanism and justice, promoting instead a logic of identity that displaces (and denies) individual and group differences. This is a pervasive ethical dilemma at the core of therapeutic jurisprudence, especially in its relationship to mental health law and criminological enquiry. To substantiate this claim, this article examines how therapeutic jurisprudence wrongly assumes law's legitimacy, neglects (or dismisses) the ideology embedded within legal texts, promotes a unitary moral subject in law, and fosters a state of false consciousness among citizens. Contributions from anarchist theory, feminist jurisprudence, postmodern psychoanalysis, and critical legal studies inform this critique.