It suggests that all things being equal, the law should be
constructed in such a way as to enhance the therapeutic
potential of the law and legal actors.
TJ does not suggest that therapeutic ends should
trump other considerations of the law. The law often
serves other purposes that are equally valuable or more
valuable than therapeutic ones. The TJ framework sug-
gests that to achieve truly effective and humane law
reform, policymakers should strive for a solution
where these values converge. However, where these
values conflict, TJ does not itself resolve the conflict,
but it does sharpen and enrich the discussion.The Development of
Therapeutic Jurisprudence
IInniittiiaall OOrriiggiinnss:: TThhee LLaaww
aanndd MMeennttaall HHeeaalltthh
TJ began in the area of mental health law. It aimed
to systematically study the previously neglected aspect
of the law’s therapeutic or antitherapeutic effects in
relation to mental health law, in order to minimize the
antitherapeutic effects and highlight the need for fur-
ther analysis on therapeutic grounds. The first explo-
ration of the framework occurred in 1987, when David
Wexler delivered a paper to the National Institute of
Mental Health in the United States. The impetus for the
development of TJ was a reaction to the antipsychiatry
perspective that had developed in the late 1970s and
through the 1980s in mental health law. TJ suggested
that psychiatry, and indeed the wider disciplines of
the social sciences, had valuable insights to offer to the
field of law and mental health and that the law and the
legal profession should attempt to use those insights
where appropriate.TThhee SSpprreeaadd AAccrroossss
tthhee DDiisscciipplliinnee ooff LLaaww
Through the early part of the 1990s, David Wexler,
Bruce Winick, and a growing group of legal scholars in
the mental health field sought to investigate the scope
of TJ and its application to not only mental health law
but other areas of the law as well. The interdisciplinary
scope and easy applicability of its mission statement—
to enhance the therapeutic potential of the law and
legal actors—made the framework appealing to a num-
ber of different areas of the legal system.
By 1996, TJ had expanded to include legal arenas
such as correctional law, criminal law, family andjuvenile law, sexual orientation law, disability law, health
law, personal injury and tort law, law of evidence, labor
arbitration law, contracts and commercial law, and the
legal profession, as well as theoretical explorations and
empirical examinations of the concept. The wide scope
of the TJ framework quickly made it a valuable resource
for the future development of legal areas and law reform.
Toward the end of the millennium, the concept became
thought of in conjunction with a number of other legal
developments of the comprehensive law movement,
including preventive law, collaborative law, and prob-
lem-solving courts. The convergence between these
practical applications of the legal system and the princi-
ples of TJ has seen the concept move from a theoretical
(and largely academic) enterprise into a collaborative
form of scholarship with truly practical implications.Practical Implications
The move from theory to practice has thoroughly
enriched the scope and application of the TJ frame-
work. This entry will now highlight some of these.PPrroobblleemm--SSoollvviinngg CCoouurrttss
In an important joint resolution in the United States,
the Conference of Chief Justices and the Conference of
State Court Administrators endorsed the continued use
and expansion of problem-solving courts (such as drug
treatment courts, mental health courts, and domestic
violence courts) and made specific reference to the
courts’ use of the principles of TJ. Although TJ and
problem-solving courts (which emerged in Miami in
1989 with the first Drug Treatment Court) developed
around the same time, their development was indepen-
dent of each other, and for almost a decade, they each
continued to show significant development within the
U.S. legal system. However, in the mid-1990s, Judges
Peggy Hora and William Schma began collaborating
with David Wexler and Bruce Winick, speaking at con-
ferences, and writing about the applicability of the TJ
framework to the problem-solving (specifically, drug
treatment) court phenomenon. Since then, the two con-
cepts have developed a symbiotic relationship, and most
problem-solving courts acknowledge the influence of
the principles of TJ in their day-to-day work.GGeenneerraall CCrriimmiinnaall JJuurriissddiiccttiioonn
Recently, scholars and, perhaps more significantly,
judges and court administrators have begun to applyTherapeutic Jurisprudence——— 805T-Cutler (Encyc)-45463.qxd 11/18/2007 12:44 PM Page 805