THERAPEUTIC JURISPRUDENCE

Brothers Karamazov written by Dostoevsky in 1879  became an all time best seller  which also provides us even today many useful insights into the field of "Therapeutic Jurisprudence". Until recently there has been no general theory concerning the impact of legal processes upon participant wellbeing and its implications for attaining justice system objectives. This gap has been filled by Therapeutic Jurisprudence.

Admirers of the book include scientists such as Albert Einstein, philosophers Ludwig  Wittgenstein^] and Martin Heidegger, as well as many other famous writers.

Sigmund Freud called it "the most magnificent novel ever written" and was fascinated with what he saw as its Oedipal themes. In 1928 Freud published a paper titled "Dostoevsky and Parricide" in which he investigated Dostoevsky's own neuroses.

Dostoevsky considered the introduction of the European Jury trial and its adversarial justice and alleged discovery of truth would supplant Russia's pure, Christian attitude to truth.

The Brothers Karamazov is a message for Russians and also all of us not to accept the court as the most civil and equitable means of achieving justice. Looking into the attorney's statements, the lay and expert witnesses, the introduction of dubious expert witnesses on both sides of the trial, the judge and public response to trial, all capture well author's disillusionment with Western Judicial reforms of the nineteenth century.

The experts contradict one another, and the doctor from Moscow and Doctor Herzenstube take the case to pursue their personal vendettas against each other, overall making "the expert testimony appear ludicrous."

It is here that the value of Therapeutic jurisprudence becomes useful. TJ says that the processes used by courts, judicial officers, lawyers and other justice system personnel can impede, promote or be neutral in relation to outcomes connected with participant wellbeing such as respect for the justice system and the law, offender rehabilitation and addressing issues underlying legal disputes.

The fact that evidence can be misconstrued to deny the truth and the fact that evidence is essential to proving the truth indicates Dostoevsky's belief that "evidence…is a two edged sword that can cut either way.

At the AUGP TJ Centre, It is our desire, to be a strong proponents worldwide in adapting the use of more comprehensive, psychologically optimal, and emotionally intelligent means of dealing with conflicts.

 It is also our goal to propose new processes to be added to the range of existing processes—such as in the use of mediation in civil, criminal, and family law cases and the establishment of special intervention courts or lists to address broader issues underlying legal problems where such an intervention is consistent with other justice system principles.

Prof. Lakshman Madurasinghe

 

The Development of Jurisprudence: A Historical Overview

 

Jurisprudence, derived from the Latin jurisprudentia (knowledge of law), is the study of the nature, sources, and purpose of law. Its development spans centuries, reflecting humanity’s evolving understanding of justice, authority, and societal order. From ancient legal codes to modern legal theories, jurisprudence has been shaped by philosophical, religious, and political influences. This summary explores its progression through key historical periods and schools of thought, culminating in contemporary trends as of 2025.Ancient Jurisprudence: Foundations of Legal ThoughtThe earliest forms of jurisprudence emerged in ancient civilizations, where law was intertwined with religion, custom, and morality. In Mesopotamia, the Code of Hammurabi (circa 1754 BCE) established one of the first written legal codes, emphasizing retributive justice ("an eye for an eye"). These laws reflected a divine mandate, with rulers acting as intermediaries between gods and people. In ancient Egypt, the concept of Ma’at—representing truth, balance, and cosmic order—guided legal principles, blending moral and legal authority.
In ancient Greece, philosophers laid the groundwork for Western legal thought. Socrates, Plato, and Aristotle explored the relationship between law, justice, and the state. Plato’s Republic envisioned an ideal state governed by philosopher-kings, where laws served the common good. Aristotle distinguished between natural law (universal moral principles) and positive law (human-made laws), a distinction that would influence later jurisprudence. His emphasis on reason and ethics introduced a philosophical lens to law, moving beyond divine command.
Roman law, particularly the Corpus Juris Civilis under Emperor Justinian (6th century CE), was a landmark in legal systematization. Roman jurists like Gaius and Ulpian developed concepts of property, contracts, and legal personality, which remain foundational in civil law systems. Roman law’s emphasis on codification and legal reasoning influenced medieval and modern legal traditions.Medieval Jurisprudence: Religion and Natural LawThe fall of the Roman Empire shifted legal thought toward religious frameworks. In Europe, the Catholic Church dominated medieval jurisprudence, with canon law governing ecclesiastical matters and influencing secular law. Theologians like Thomas Aquinas (13th century) synthesized Christian doctrine with Aristotelian philosophy, developing a robust theory of natural law. Aquinas argued that human laws must align with divine law, derived from God’s eternal reason, and that unjust laws lacked moral legitimacy. This natural law tradition emphasized universal moral principles, shaping legal thought for centuries.
In the Islamic world, Islamic jurisprudence (fiqh) emerged from the Quran and Hadith, interpreted through schools of thought like Hanafi, Maliki, Shafi’i, and Hanbali. Jurists used ijtihad (independent reasoning) to apply divine law to new contexts, balancing scripture with practical governance. Similarly, Jewish law (Halakha), rooted in the Torah and Talmud, developed sophisticated legal reasoning, influencing religious and communal life.Early Modern Jurisprudence: Sovereignty and RationalismThe Renaissance and Enlightenment ushered in a shift toward secular and rational approaches to law. The rise of nation-states prompted questions about legal authority and sovereignty. Hugo Grotius (17th century), often called the father of international law, argued for a secular natural law based on human reason rather than divine will. His work On the Law of War and Peace (1625) laid foundations for international legal norms, emphasizing mutual consent among nations.
Thomas Hobbes, in Leviathan (1651), introduced a positivist view, arguing that law derives its authority from the sovereign’s command, not divine or moral principles. This marked a departure from natural law, prioritizing political stability over ethical considerations. John Locke, conversely, emphasized individual rights and consent, influencing modern liberal jurisprudence. His ideas about natural rights to life, liberty, and property became cornerstones of constitutional law.
The Enlightenment also saw the codification of laws in Europe, notably through the Prussian Allgemeines Landrecht (1794) and the Napoleonic Code (1804). These codes reflected rationalist ideals, aiming for clarity, universality, and accessibility in law, shaping civil law traditions.19th Century: Legal Positivism and Historical JurisprudenceThe 19th century marked the rise of legal positivism, which separated law from morality. John Austin’s The Province of Jurisprudence Determined (1832) defined law as the command of a sovereign backed by sanctions, rejecting natural law’s moral underpinnings. Positivism emphasized law as a human construct, focusing on its formal sources (legislation, precedent) rather than its content. This approach suited the growing complexity of industrialized societies and colonial legal systems.
Simultaneously, the Historical School, led by Friedrich Carl von Savigny, argued that law evolves organically from a society’s customs and traditions. Savigny’s emphasis on the Volksgeist (spirit of the people) countered positivism’s universalism, highlighting law’s cultural and historical context. This school influenced German legal scholarship and the development of the Bürgerliches Gesetzbuch (BGB, 1900).20th Century: Diverse Schools of JurisprudenceThe 20th century saw a proliferation of jurisprudential schools, reflecting diverse ideological and philosophical currents. Legal realism, prominent in the United States, challenged positivism’s formalism. Realists like Oliver Wendell Holmes and Karl Llewellyn argued that law is shaped by social, economic, and psychological factors, not just rules. They emphasized judicial discretion and the practical effects of legal decisions, influencing modern judicial pragmatism.
In Europe, Hans Kelsen’s Pure Theory of Law (1934) refined positivism by proposing a hierarchical system of norms, with a “grundnorm” (basic norm) as the foundation of legal validity. Kelsen’s work aimed to make jurisprudence a science, free from moral or political bias, and influenced international and constitutional law.
The revival of natural law came through thinkers like Lon Fuller, who emphasized law’s moral purpose and procedural fairness. H.L.A. Hart’s The Concept of Law (1961) bridged positivism and natural law, introducing the “rule of recognition” to explain how legal systems gain authority while acknowledging law’s moral dimensions.
Critical legal studies (CLS), emerging in the 1970s, challenged traditional legal doctrines, arguing that law perpetuates power imbalances. CLS scholars like Roberto Unger viewed law as a tool of social domination, advocating for transformative change. Feminist jurisprudence, led by figures like Catharine MacKinnon, critiqued law’s patriarchal biases, pushing for gender-equitable reforms.Contemporary Jurisprudence: Pluralism and Global ChallengesAs of 2025, jurisprudence is characterized by pluralism, integrating insights from multiple schools. Legal positivism remains influential, particularly in analytical jurisprudence, with scholars like Joseph Raz refining Hart’s theories. Natural law continues to inform debates on human rights and ethics, especially in international law. Postmodern and critical theories, including critical race theory and postcolonial jurisprudence, challenge Eurocentric legal frameworks, emphasizing marginalized perspectives.
Globalization has reshaped jurisprudence, with international law addressing issues like human rights, environmental law, and global trade. The Universal Declaration of Human Rights (1948) and subsequent treaties reflect a global consensus on universal norms, though tensions persist between state sovereignty and international obligations. Jurisprudence now grapples with technology’s impact, including AI, data privacy, and cyberlaw, raising questions about legal personhood and accountability.
Therapeutic jurisprudence, focusing on law’s psychological and social effects, and environmental jurisprudence, addressing ecological crises, are gaining traction. These approaches reflect a broader trend toward interdisciplinary legal thought, incorporating economics, sociology, and psychology.ConclusionThe development of jurisprudence reflects humanity’s quest to define justice and order. From ancient divine laws to modern pluralistic theories, it has evolved through philosophical, cultural, and political shifts. Ancient and medieval periods rooted law in religion and morality, while the Enlightenment introduced rationalism and sovereignty. The 19th and 20th centuries saw positivism, realism, and critical theories diversify legal thought. Today, jurisprudence navigates global and technological challenges, balancing universal principles with cultural diversity. As societies evolve, jurisprudence remains a dynamic field, adapting to new ethical, social, and technological realities.