Non-Adversarial Justice and Transforming the Justice System

Professor Arie Freiberg recently posted an important new contribution to SSRN. It is available at: http://ssrn.com/abstract=1722388. It is the RG Meyers Memorial Lecture for 2010. The RG Meyer Memorial lectures are organised by the Australian and New Zealand Association of Psychiatry, Psychology and Law (ANZAPPL). Amongst other things, Arie is Dean of the Faculty of Law at Monash University, Chair of the Sentencing Council of Victoria, a respected criminologist and a pioneer in the development and application of therapeutic jurisprudence, problem-solving courts and non-adversarial justice in Australia. I cannot hope to do justice to his paper in a short blog, but I will select a few ideas that particularly appealed to me and comment on them.

In his paper, Arie argues that therapeutic jurisprudence and more broadly non-adversarial justice have the potential to bring about significant change to the justice to a far greater degree than ‘law and’ approaches such as law and psychiatry and psychology. Arie acknowledges the value of ‘law and’ approaches. Through the meeting of different disciplines that they bring, they generate creative insight into the nature and operation of the law and suggest directions for reform.

But his contention is that interdisciplinary study is not enough: “I suggest that what is needed in addition is either a coherent intellectual framework or theory or meta-narrative that will fundamentally change the way that the justice system is perceived and operates”.

Arie acknowledges that non-adversarial justice and therapeutic jurisprudence are not theories. Indeed, David Wexler and Bruce Winick did not introduce therapeutic jurisprudence as a theory but rather as a framework through which the effect of the law, legal processes and legal actors may be studied and proposals for reform formulated. Similarly, non-adversarial justice, despite the limitations in its formulation (which Arie acknowledges), provides a framework through which the approaches that seek to promote more comprehensive, psychologically optimal, participatory and less conflictual ways of resolving legal and associated problems may be understood.

Moreover the idea and practices associated with therapeutic jurisprudence are appealing to judicial officers and lawyers as they have practical relevance to their day to day work. My own enthusiasm for therapeutic jurisprudence began when, as a magistrate, I saw how its practices could be used to improve my judging and how I could place my position and work in the context of its overarching framework.

While ‘psychiatry, psychology and’ studies generally focus on particular psychological dimensions of the law in operation, therapeutic jurisprudence/non-adversarial justice/comprehensive law have broader aspirations. Their frameworks have their limitations, but they do provide a vehicle through which ideas and practices of a wide range of disciplines – principally the behavioural sciences – can gain practical application in the work of justice system professionals such as judges, magistrates and lawyers.

Humanistic psychologist Carl Rogers noted that what may be true in the relationship between therapist and client may also be true in human experience generally. Thus insights from procedural justice concerning the value of promoting participant voice, validation and respect to promote participant respect for court decisions and the legal system; the use of motivational interviewing techniques; the use of communication skills; and broader ideas as to what constitutes offender rehabilitation are gaining application in the work of legal system professionals such as judges, magistrates and lawyers without transforming them into therapists.

For these and other reasons, Arie argues that non-adversarial justice/comprehensive law/therapeutic jurisprudence “can lead to, institutional transformation: not just making the courts work better but changing the justice system itself.” He considers non-adversarial justice in depth and illustrates his points by reference to a case study – mental health courts – and to the use of non-adversarial justice approaches within the legal system of Victoria, Australia.

The paper is well worth reading.