Psychological Trauma, Social Pain, and Therapeutic Jurisprudence

 

Guest Blogger Dr Cindy Brooks Dollar writes…

What might our world – not just our courts – look like if we committed to practicing the components of therapeutic jurisprudence (TJ)?  Can we extend TJ’s principles beyond its intended legal context and into all of our social interactions?  Given TJ’s interdisciplinary foundation, it seems plausible to extend its principles beyond the legal sphere.

In this blog, I argue that sociology, especially Existential Sociology, offers a means by which to broaden the applicability of TJ’s components since the two perspectives share some concerns and solutions about social life.

The presence of TJ may be identified by various characteristics, but I see three
components as fundamental:

■ Building and maintaining trust and legitimacy by being respectful in
interactions;
■ committing to inclusive participation through encouraging an expression
of standpoint of the parties involved; and
■ transparently making decisions in hopes that the decisions will be
perceived and understood as fair (Dollar, 2018).

In their 1991 book, Essays in Therapeutic Jurisprudence, Wexler and Winick
characterize TJ as a way to study “the extent to which substantive rules, legal procedures, and the roles of lawyers and judges produce therapeutic or anti-therapeutic consequences” (p. ix).  Thus, TJ is concerned with how law – in its written form and its implementation – influences the social-psychological well-being of parties involved in legal conflict.

In some of his earlier work, Wexler (1981) suggests therapeutic responses as those that
are liberty-oriented, although he also appreciates issues of community safety and constitutional rights. Wexler (1981; 1991) describes anti-therapeutic consequences as harmful or severe and without regard to constitutional violations, especially when implemented through coercive means.

I have become particularly interested in the content and consequences of (anti) therapeutic social encounters throughout the course of my research on problem-solving courts (i.e., mental health, drug, and family courts) and with persons reporting drug misuse who are not involved in these courts.  Although I find variations in the narratives of persons I have observed and interviewed, one thing is clear: Across studies and settings, respondents consistently indicate their “problematic behavior” — however they defined it – stems from situations in which they lacked a sense of control or autonomy.

Indeed, participants have recounted specific instances of assault, chronic abuse, marital infidelity, the death or birth of a child as well as general histories of anxiety and/or hopelessness.  Many interviewees labeled these experiences as “a crisis” or
“traumatic” and described them as central to health, wellbeing and decisions to misuse
substances.  As a result of these findings, my research is becoming more explicitly trauma- and crisis-informed.

Although trauma is defined differently depending on the discipline and person studying
it, the phenomenon can be generally defined as an emotional response to a negative event wherein the amount of stress experienced exceeds one’s ability to cope with the incident.  Definitions of crisis can also vary, but most agree that a crisis involves an intensely difficult event whereby a decision must be made to avert further danger.

I submit that it may be intellectually and socially productive to classify anti-therapeutic encounters as potentially traumagenic or crisis-inducing, especially when they occur among an already vulnerable population and/or in an environment that is unfamiliar, uncertain, or adversarial.

Sociology involves the comprehensive study of human relations and thus seems
especially suitable for assisting in broadening TJ’s principles to non-legal encounters. Sociology was established as a formal discipline in the 19th century following growing concerns about modernity and its expected association with over-rationalization, impersonalization, and economic calculations of social relationships.  Existential sociology (ES), a sub-discipline of sociology established by Western scholars in the 1960s, criticized the science-based model that had become common in American sociology.

In launching critiques, existential sociologists relied on the work of Western existential philosophers and their questions about the human condition but recognized existentialist questions and answers as culturally informed.  ES suggests
that modernity brings more instability and coercion to institutions than previous times because contemporary institutions are less reflective of people’s lived experiences.  This detachment produces an increased likelihood of complacently and alienation as people are less likely to see the institutions and their arrangements as relevant to their own lives, especially in any meaningful way.

TJ and ES have several methodological commonalities. Both, for example, are interested
in investigating the holistic, lived reality of the subjects of study.  Since the enactment of law influences the social, emotional, and psychological health of involved parties, TJ understands law as a significant element of human life that must be exercised with the human consequence in mind (Wexler 1992; 2008; Winick; Wexler 2003). ES also promotes a holistic assessment but views all interactions, not just law-based ones, as needing to be cognizant of human consequences because they accumulate to inform subjects about culture and one’s place in it (Kotarba & Fontana 1984). TJ and ES also highlight the importance of observing routine settings. Wexler (1999) and Winnick (1997) argue for investigating “law in action” because that is where (anti)therapeutic consequences are revealed. Proponents of ES similarly argue that
observers must study social phenomenon in the natural, emergent setting. Therefore, some advocates of the approach call for experiential investigations, proposing that they expose the way our bodies anchor social existence and encourage empathetic observation (Tiryakian 1962).

Beyond methodological considerations, I see similarities between TJ and ES as a living
practice. Both stress perceptions and emotions. TJ endorses principled actions (respectful, inclusive, transparent communication) to maintain a sense of dignity and personhood.  ES seeks to generate authenticity through meaningful interactions.  In fact, existential sociologists argue that the feelings of confusion, meaninglessness, anxiety and alienation associated with modernity can be overcome though genuine bonds that encourage wellbeing and humane existence.

We have yet to realize the potential of TJ, likely because therapeutically-oriented courts
continue to operate in the traditional adversarial adjudication system.  Still, I am not willing to underestimate the transformative potential of TJ’s principles.  While justice may seem inconvenient in a world that prizes economically-driven efficiency, a commitment to engage in respectful, honest interactions are central to realizing our collective human potential.

CINDY BROOKS DOLLAR is an Assistant Professor at the University of North Carolina at Greensboro in the Department of Sociology.  Her research focuses on inequality, social deviance, and social control.  Her work has previously published in the Journal of Quantitative Criminology, Critical Criminology, Social Currents, Homicide Studies, The Sociological Quarterly, Deviant Behavior, Sociological Inquiry, Sociological Focus, Sociological Spectrum, Sociology Forum and several interdisciplinary journals. 

References:

Dollar, Cindy Brooks. 2018. Therapeutically (Un)Just Interactions in Family Court Proceedings. Criminal Justice Policy Review. Online First: https://doi.org/10.1177/0887403418812170

Joseph A. Kotarba and Andrea Fontana. 1984. The Existential Self and Society. The University of Chicago press.

Tiryakian, Edward. 1962. Sociologism as Existentialism: Two perspectives on the Individual and Society. New Jersey: Prentice–Hall, Inc.

Wexler, David. 1981. Mental Health Law: Major Issues. New York: Springer

Wexler, David. 1991.  [This in-text citation should be written as Wexler and Winick 1991. That citation is below]

Wexler, David B. 1992. Putting Mental Health into Mental Health Law: Therapeutic Jurisprudence. Law and Human Behavior. 16: 27-38.

Wexler, David B. 1999. Therapeutic Jurisprudence: An Overview (Transcript of public lecture given at Thomas Cooley Law Review Disabilities Law Symposium). Retrieved from https://www.unitedworldschoollawjournal.com/wp-content/uploads/2018/04/Wexler-David-Therapeutic-Jurisprudence-An-Overview.pdf

Wexler, David B. 2008. Two Decades of Therapeutic Jurisprudence. Touro Law Review. 24: 17-29.

Wexler, D. B., & Winick, B. J. (1991). Essays in Therapeutic Jurisprudence. Durham, NC: Carolina Academic Press.

Winnick, Bruce. 1997. The Jurisprudence of Therapeutic Jurisprudence. Psychology, Public Policy, and Law 3(1): 184-206.

Winick, B. J., & Wexler, D. B. (2003). Judging in a therapeutic key: Therapeutic jurisprudence and the courts. The Journal of Legal Medicine 25: 377-388.