Saturday, March 29, 2008

Labour Law- Key Cases


Unfair dismissal

Airbus UK v Webb
(unreported, EWCA Civ 49, 7 February 2008, CA)

Five employees were found guilty of misconduct for misusing company time (by watching television during working hours). Four employees were given final written warnings, but one employee was dismissed. This was because he had been given a final written warning for a similar act of misconduct thirteen months earlier. The warning had expired three weeks before the second act of misconduct. The employee brought an unfair dismissal claim which was upheld by an employment tribunal and the Employment Appeal Tribunal (EAT).

The Court of Appeal (CA) over turned the decision of the EAT, and held that the employee was not unfairly dismissed because the employer had relied on an expired warning. In a previous case Diosynth Ltd v Thomson [2006] IRLR 284 CS it was held that a spent warning should be ignored for all purposes. However the CA said that Diosynth was only authority for stating that it would be unreasonable for an employer to rely on an expired warning as a principle reason for dismissal. The CA also stated that under Diosynth the expired warning 'tipped the balance' in favour of dismissal (as other factors taken together would not have justified dismissal), but in the present case the employee was dismissed mainly because of his misconduct and not because of the expired warning.

Implications for employers:
  • Employers who take expired warnings into account before implementing a dismissal will not necessarily have unfairly dismissed the employee. However, such a practice is still very risky.
  • As a matter of best practice employers should not rely on expired warnings, especially not as the principal reason for dismissal.
  • If an employer does rely on an expired warning and there is also underlying misconduct, it may be reasonable to take the warning into account as well -provided that the subsequent misconduct is sufficient to warrant dismissal in its own right.

Stress

Deadman v Bristol City Council
[2007] IRLR 888 CA

A council employee was accused of sexual harassment. The council's policy was that all harassment claims should be sensitively dealt with and investigated by a three-person panel. However, the investigation was carried out by a two-person panel and the employee raised a grievance. The council upheld his grievance, but left a letter on his desk informing him that the claims would be investigated by a three-person panel. The employee went off sick with depression and did not return to work. He then brought a personal injury claim. He argued, based on several Council documents that were not in his employment contract, that the Council had a contractual obligation to act sensitively and had failed to do so by merely leaving the letter on his desk telling him that the matter would be re-investigated.His claim was upheld by the High Court which held that the council was in breach of the employment contract and that it was reasonably foreseeable that such a breach would case a psychiatric illness.

This decision was overturned by the Court of Appeal which held that the use of a two-person panel was in breach of contract but it was not reasonably foreseeable that this would cause the employee a psychiatric illness.

Implications for employers:

  • Employers will only be vulnerable to such claims if the harm suffered by the employee was a reasonably foreseeable result of the employer's actions.
  • At the very least, employers should follow their own policies and procedures and any statutory procedures carefully.
  • If employers implement contractual procedures, very careful attention should be paid to the wording as there may be a contractual term that the employer must follow its published procedure to the letter in the investigation of any complaints made against the employee.
  • Employers will always be subject to the implied obligation of mutual trust and confidence, and the duty to take reasonable care, but any damage suffered by an employee must still be reasonably foreseeable.

Sex discrimination

Madarassy v Nomura International plc 
[2007] IRLR 246, CA)

The Court of Appeal held that an employer is not obliged to prove that an employee was treated fairly once she had established that as a pregnant woman she had been discriminated against.

The employee, a banker, who claimed that she had suffered discrimination while pregnant went on maternity leave in March 2001. She also claimed that when she was on maternity leave she was not informed that her department was being restructured which put her at a disadvantage in the restructuring and redundancy process. In November 2001 she was dismissed for redundancy. She brought £1 million proceedings for discrimination citing 33 allegations. These allegations were dismissed by the employment tribunal and Employment Appeal Tribunal, apart from one concerning the employer's failure to carry out a health and safety assessment relating to her pregnancy.

The Court of Appeal had to decide what degree of unfair behaviour an employee was required to establish to transfer the burden of proof onto the employer to prove that it did not act unfairly. The Court of Appeal concluded that there had to be more than a set of circumstances where the tribunal could 'conclude' discrimination. Differences in status and treatment were not sufficient to establish a prima facie case of discrimination. It also ruled that the employer was correct in not carrying out a risk assessment as there was no evidence from the employer that her working conditions put her at risk. The employee is intending to appeal to the House of Lords.

Implications for employers:

  • This is an important decision for employers who are now less exposed to sex discrimination claims in such circumstances as it will be harder for employees to establish that discrimination took place.
  • In cases under the Sex Discrimination Act 1975 the employee always has to prove a prima facie case of sex discrimination. Previous cases have set this threshold at a very low level. The level now appears to be higher.
  • However if a similar dismissal does take place the timing i.e straight after return from maternity leave will not of itself show a prima facie case of discrimination against the employer.
  • There must be some other link in addition to the timing which suggests there may be a discriminatory reason for the dismissal, thereby enabling the employee to get the claim off the ground.
  • An employee wishing to claim discrimination also now needs to show more than mere differences in status or treatment to force the employer to show that they have not discriminated. There needs to be something more than that.
  • Despite this decision obviously the safest, most cautious, course of action for employers is always to try and avoid dismissing employees (or selecting them for redundancy) whilst they are pregnant, or during/upon return from maternity leave.

New Book-Employment Law

An Introduction for HR and Business Students

 
 
Kathy Daniels
 
Pages: 288   Published: March 2008
 
ISBN: 1843981882
ISBN13: 9781843981886
 
Price: £24.99
 


Description
 
 
Employment Law can be a challenging subject for students who have no prior experience of studying or working with Law.

Employment Law: An Introduction for HRM and Business Students is an ideal text for those business students on undergraduate and postgraduate courses who are taking a module in Employment Law. It covers a comprehensive range of topics enabling students to gain a solid understanding of the key principles of the subject. The engaging, authoritative writing style and range of learning features make this a refreshingly accessible and student-friendly read.

This new edition has been thoroughly updated, and includes expanded coverage of the impact of EU Law, and Discrimination Law including ageism, sexual orientation, religious belief, harassment and disability.

Each chapter includes summaries of topical and relevant cases, direction to key sources of legal information and suggestions for further reading while covering the CIPD Standards for the Employment Law elective on the Professional Development Scheme (PDS).

This text includes a range of case studies, tasks and examples to consolidate learning and includes a brand new section on Employment Law study skills to help students get to grips with how to access and read law reports, understand the sources of the law, find and use up-to-date legal information (particularly websites) and how to prepare for exams and written assignments.
  
 
Contents
 
Cases referred to in this book
Legislation referred to in this book
Preface
Acknowledgements

Studying Employment Law
The Formation of Employment Law
The Employment Tribunals and Employment Appeal Tribunal
Contract of Employment
Atypical Contracts and the Variation of Contracts
Individual Protection Rights
Discrimination (1)
Discrimination (2)
Termination of Employment (1)
Termination of Employment (2)
Trade Union Legislation
Privacy and Confidential Information
Health and Safety Legislation

Useful Websites
Index.
  
 
About the author(s)
 
Kathy Daniels

Kathy teaches at Aston Business School and is a tutor for ICS Ltd in Employment Law and related topics. She is also a tutor on the Advanced Certificate in Employment for the Chartered Institute of Personnel and Development. She is a fellow of the CIPD. She is a lay member of the Employment Tribunals, sitting in Birmingham. Prior to these appointments she was a Senior Personnel Manager in the manufacturing sector. Kathy has also written for a number of other CIPD texts including ''Employee Relations in an Organisational Context'', ''Equality, Diversity and Discrimination'' with Lynda Macdonald, and the forthcoming textbook from the Aston Centre of Human Resources, ''Strategic Human Resource Management: Building Research-Based Practice''.

Friday, March 21, 2008

Mediation at Workplace

The Gibbons review heard evidence that early mediation or conciliation in the workplace is the key to resolving disputes before irretrievable breakdown in relations occurs.The issue is how far it may be possible to place more weight on such "alternative dispute resolution" mechanisms so as to reduce the volume of claims reaching employment tribunals and improve the quality of outcomes. How far can experience of resolving disputes in other areas such as family or commercial law be applied to the field of employment? 

Workplace conflict damages business performance by reducing levels of employee engagement.

CIPD supports the view that there is a clear business case for mediation, which can be summarized as follows:

    * Time - mediation is often completed in one meeting, compared with the two days or more typically required for tribunal hearings

    * Legal representation for the parties is optional and, in the absence of a legal framework, less critical to outcomes

    * Proceedings are confidential so that parties are less likely to be trapped by positions adopted earlier

    * Mediation takes a problem-solving approach to complaints, which reduces disruption and future problems

    * Agreement is less likely to mean that one party wins and the other loses, leading to lower employee turnover

    * The process is evidently fair since both parties contribute to finding a solution

    * "Win-win" solutions support trust-based relationships and a culture of good people management.

Constraints on the use of mediation

How far can mediation be expected to take more of the strain of handling workplace conflict? Some employers, particularly in the public sector, have invested in training their staff to undertake mediation; others make use of mediation services provided  external sources. However mediation is not the only option for organisations that seek to reduce or deal with workplace conflict. Investigations by outside persons may help to create a shared understanding of the facts which will facilitate early resolution. Employee Assistance Programmes can also be useful in providing employees with a way of raising issues which are worrying them.

More generally, mediation is likely to be most effective where organisations have in place training and support for line managers in people management skills. Our members' experience suggests that, where such training has taken place, matters relating to alleged breaches of discipline or complaints by employees have been handled competently and concluded effectively. HR managers can support line management to restore trust-based relationships that have been disturbed by complaints including those related to discrimination, harassment and bullying.

However CIPD survey findings suggest that such training is not as common as it might be:

    * only 30% of respondents train any employees in mediation skills

    * training is more common in the public services (53%) than in other sectors (manufacturing and production 15%)

    * 1in 4 employers use internal mediation

    * 1 in 5 employers use external mediation (e.g. ACAS).

"Transactional" mediation and compromise agreements

A distinction can be drawn between "relational" mediation, which aims to produce a meeting of minds between the parties, and "transactional" mediation, which is primarily aimed at agreeing a settlement figure – perhaps with some conditions - which will compensate the employee for losing his or her job. Where a complaint has been resolved internally within an organisation through relational mediation, a compromise agreement may be considered as a means of endorsing the outcome. With the passage of time from an initial conflict emerging, the chances of successful relational mediation diminish but there may still be value in pursuing transactional mediation as a way of "drawing a line" under the relationship.

 Where the aim is to agree a compensation figure in return for an employee leaving the organisation, whether or not there is a process of mediation, employers increasingly rely on concluding a compromise agreement with the employee. This is in order to ensure that no further statutory claims can be brought against the employer in respect of the employee's service with the employer. The Government should recognize the value of compromise agreements in resolving issues in a way that meets the interests of both employer and employee, without the use of statutory machinery, provided that the employee receives independent advice. 

 

Unfair Dismissal

 

A dismissal may be fair or unfair depending on the circumstances of the dismissal.


You need to work through the following four steps to identify whether you can make a claim for unfair dismissal:-

Step one: who cannot claim unfair dismissal

There are some employees who can never claim unfair dismissal. They are:-

People who are not employees, such as independent contractors or freelance agents. Employers often claim that people who are actually employees are self-employed. It is important to check the relationship between the employee and their 'employer', because this will determine the employee's actual employment status .

 See my full article at:

http://www.citehr.com/unfair-dismissal-vt16349.html

 

Peoples' SAARC Declaration -2007


"People'summits",since 2000 held annually parallel to the South Asian Association Regional Cooperation (SAARC)Summit aims to promote people to people dialogues,exchanges and linkages in South Asia to address Regional issues.

This joint civil society initiative provides a platform to act on a "people's agenda" and helps civil society to engage with national governments and regional Institutions. The participation of Afghanistan in the 6th People's summit was welcomed in which more than 200 people from 8 countries participated in New Delhi.

Prof.Madurasinghe was a member of the Drafting team.

Read Full Text

A Brief History of Human Rights

Societies have located the beginnings of human rights in religious documents. The Vedas, the Bible, the Qur'an and the Analects of Confucius are some of the oldest written sources which address questions of people’s duties, rights, and responsibilities. Some early reforms were reflected in the biblical books of Chronicles and Ezra, which state that Cyrus released the followers of Judaism from slavery and allowed them to migrate back to their land.

Read Article

Tuesday, March 18, 2008

Human Rights and Governance



An article I contributed to the Bar Association Journal 2007 Vol X111 ISBN: 1391-1198


Various developing countries that are quite similar in terms of their natural resources and social structure have shown strikingly different performance in improving the welfare of their people. Why is this? Research suggests that some countries do better than others because they have 'good governance' and a good human rights record. Good governance and human rights are a vital part in ensuring country’s progress with justice & fair play.

140 years ago Daniel Webster had this to say at Justice Story’s funeral :
Justice sir, is the greatest interest of man on earth. It is the ligament which holds civilized beings and nations together. It is the end of civil society. Justice is truth in action and make the legal system in each country viable as an instrument of national fulfillment.

Justinian in the Institutes says:
Justice is the earnest and constant will to render to every man his due. The precepts of the law are these:

To live honourably ; To injure no other man ; To render to every man his due.
Governance is the process whereby public institutions conduct public affairs, manage public resources and guarantee the realization of human rights. Good governance accomplishes this in a manner essentially free of abuse and corruption, and with due regard for the rule of law. The true test of "good" governance is the degree to which it delivers on the promise of human rights: civil, cultural, economic, political and social rights. The key question is: are the institutions of governance effectively guaranteeing the right to health, adequate housing, sufficient food, quality education, fair justice and personal security?

COMMISSION ON HUMAN RIGHTS

Concerning governance The Commission on Human Rights has emphasized the following:

Recognizing the need for a closer examination of the role of good governance for the promotion of human rights and the relationship between good governance practices and the promotion and protection of all human rights in all countries,

1. Recognizes that transparent, responsible, accountable and participatory government, responsive to the needs and aspirations of the people, is the foundation on which good governance rests, and that such a foundation is a sine qua non for the promotion of human rights;

2. Emphasizes, in this context, the need to promote partnership approaches to international development cooperation and to ensure that prescriptive approaches to good governance do not impede such cooperation;

3. Requests the United Nations High Commissioner for Human Rights to invite all States to provide practical examples of activities that have been effective in strengthening good governance practices for the promotion of human rights at the national level, including activities in the context of development cooperation between States, for inclusion in a compilation of indicative ideas and practices that could be consulted by the interested States when required;

The Commission also requested the High Commissioner to invite States to provide practical examples of activities that have been effective in promoting good governance, including through development cooperation.

HUMAN RIGHTS


Societies have located the beginnings of human rights in religious documents. The Vedas, the Bible, the Qur'an and the Analects of Confucius are some of the oldest written sources which address questions of people’s duties, rights, and responsibilities.

Several theoretical approaches have been advanced to explain how human rights become part of social expectations. The biological theory , natural law theories and an "interests theory" defense of human rights.

Ultimately, the term "human rights" is often itself an appeal to a transcendent principle, not based on existing legal concepts. The term "humanism" refers to the developing doctrine of such universally applicable values. The term "human rights" has replaced the term "natural rights" in popularity, because the rights are less and less frequently seen as requiring natural law for their existence.

VIOLATIONS OF HUMAN RIGHTS

Human rights Violation is abuse of people in a way that it abuses any fundamental human rights. It is a term used when a government violates national or international law related to the protection of human rights.

According to the Universal Declaration of Human Rights, fundamental human rights are violated when, among other things:

* A certain race, creed, or group is denied recognition as a "person". (Articles 2 & 6)
* Men and women are not treated as equal. (Article 2)
* Different racial or religious groups are not treated as equal. (Article 2)
* Life, liberty or security of person are threatened. (Article 3)
* A person is sold as or used as a slave. (Article 4)
* Cruel, inhuman or degrading punishment is used on a person (such as torture or execution). (Article 5) (See also Prisoners' rights)
* Victims of abuse are denied an effective judicial remedy. (Article 8)
* Punishments are dealt arbitrarily or unilaterally, without a proper and fair trial. (Article 11)
* Arbitrary interference into personal, or private lives by agents of the state. (Article 12)
* Citizens are forbidden to leave or return to their country. (Article 13)
* Freedom of speech or religion are denied. (Articles 18 & 19)
* The right to join a trade union is denied. (Article 23)
* Education is denied. (Article 26)

MONITORING

Human rights violations and abuses include those documented by non-governmental organizations such as Amnesty International, Human Rights Watch, World Organisation Against Torture, Freedom House, International Freedom of Expression Exchange and Anti-Slavery International.

Only a very few countries do not commit significant human rights violations, according to Amnesty International. In their recent human rights reports the Netherlands, Norway, Denmark, Iceland and Costa Rica are the only countries that did not violate at least some human rights significantly

MILLENNIUM REPORT

In his Millennium Report, We the peoples, the Secretary-General emphasized that "better governance means greater participation, coupled with accountability. Therefore, the international public domain – including the United Nations – must be opened up further to the participation of the many actors whose contributions are essential to managing the path of globalization … For the United Nations, success in meeting the challenges of globalization ultimately comes down to meeting the needs of peoples. It is in their name that the Charter was written; realizing their aspirations remains our vision for the twenty-first century."

ANCIENT SYSTEMS

Ancient history is replete with examples of good governance and Kautilya says in his Arthashastra: "In the happiness of his subject likes the king's happiness, in their welfare his welfare. He shall not consider as good only that which pleases him but treat as beneficial to him whatever pleases his subject".

2000 years ago, Tiruvalluvar, in Tamilnadu spelt out in 1330 verses the three purusharthas of existence, dharma, artha and kama. In his chapter on artha, like Kautilya's Arthashastra, he also dealt with the characteristics of a well-run administration or shall we say the ethics of good administration.

Justice M Rama Jois in his Shri Bhau Lecture Series gave a talk entitled
"Reforming our polity on the basis of Dharma". In this talk he has provided valuable insights into the concept of Dharma. This is what he says:
From most ancient times, as a part of Dharma, one of the ideals placed before individuals was that for a higher or greater interest, lower or personal interest should be subordinated.

Idealism is incorporated in a verse in Hitopadesha; It reads "Sub ordinate the interest of an individual for the sake of the family, of the family to sub-serve the interest of the village, of the village in the interest of the state, of all wordly interest in order to attain eternal bliss".

The Arthashastra talks about the principles of governance and lays down rules of administration. It also discusses in detail the role of the king, his duties, rate of taxation, use of espionage, and laws for governing the society. The Indica of Megasthenes, on the other hand, gives a vivid description of the Mauryan society under the rule of Chandragupta. Megasthenes described the glory of the Mauryan capital of Pataliputra. He also talked of the lifestyle in the cities and villages and the prosperity of the Mauryan cities.

Ashoka believed in high ideals, which, according to him, could lead people to be virtuous, and peace loving. This he called Dhamma .His rock edicts and pillar inscriptions propagated the true essence of Dhamma. Ashoka asked the different religious groups (Brahmins, Buddhist and Jain) to live in peace. His lofty ideals also included shunning violence and war, stopping animal sacrifice, respect for elders, respect of slaves by their masters, vegetarianism, etc. Above all, Ashoka wanted peace in his empire.

Ashoka believed that the King should look upon his subjects as a father treats his children. He took care of his subjects in various ways and was responsible for carrying out a lot of welfare activities during his reign like building of roads, planting of trees along these roads, wells, rest houses for travelers, hospitals for the sick, etc. The Dhamma Mahamattas (officers responsible for promoting the policy of Dhamma) looked after these welfare activities across the empire. Ashoka had a friendly relation with his neighbors and sent and received envoys to/from them.
Many United Nations documents have this to say about governance:

GOVERNANCE

The concept of "governance" is not new. It is as old as human civilization. Simply put "governance" means: the process of decision-making and the process by which decisions are implemented (or not implemented). Governance can be used in several contexts such as corporate governance, international governance, national governance and local governance.

Since governance is the process of decision-making and the process by which decisions are implemented, an analysis of governance focuses on the formal and informal actors involved in decision-making and implementing the decisions made and the formal and informal structures that have been set in place to arrive at and implement the decision.

GOOD GOVERNANCE

Good governance is achieved under a democratic political system in which the actions of all sectors contribute to the good of society. It is most likely to occur when the government sector has high quality public sector institutions and when the nation has a strong civil society.

Good governance means an institution's activities are transparent and open to public examination.

Good governance has 8 major characteristics. It is participatory, consensus oriented, accountable, transparent, responsive, effective and efficient, equitable and inclusive and follows the rule of law. It assures that corruption is minimized, the views of minorities are taken into account and that the voices of the most vulnerable in society are heard in decision-making. It is also responsive to the present and future needs of society.

Participation

Participation by both men and women is a key cornerstone of good governance. Participation could be either direct or through legitimate intermediate institutions or representatives.

Rule of law

Good governance requires fair legal frameworks that are enforced impartially. It also requires full protection of human rights, particularly those of minorities. Impartial enforcement of laws requires an independent judiciary and an impartial and incorruptible police force.

Transparency

Transparency means that decisions taken and their enforcement are done in a manner that follows rules and regulations. It also means that information is freely available and directly accessible to those who will be affected by such .

Responsiveness

Good governance requires that institutions and processes try to serve all stakeholders within a reasonable timeframe.

Consensus oriented

There are several actors and as many view points in a given society. Good governance requires mediation of the different interests in society to reach a broad consensus in society on what is in the best interest of the whole community and how this can be achieved..

Equity and inclusiveness

A society’s well being depends on ensuring that all its members feel that they have a stake in it and do not feel excluded from the mainstream of society.

Effectiveness and efficiency

Good governance means that processes and institutions produce results that meet the needs of society while making the best use of resources at their disposal.

Accountability

Accountability is a key requirement of good governance. Not only governmental institutions but also the private sector and civil society organizations must be accountable to the public and to their institutional stakeholders. Accountability cannot be enforced without transparency and the rule of law.

GOOD GOVERNANCE AND HUMAN RIGHTS


Good governance and human rights develop together. Outlined below are some key principles of good governance and their link to human rights.

Democratic government and processes

A truly democratic government cannot occur unless individuals have guaranteed civil and political rights.

The primacy of the rule of law

The primacy of the rule of law and an impartial legal system protects the civil rights of all people in relation to their property, personal security and liberty. The legal and judicial system should be independent of the government so that it can serve the interests of its citizens rather than a particular political party.

A strong civil society

Civil society is about people contributing to the governing of their country through their participation in the community. It is difficult to participate if you are poor, unemployed, hungry, homeless and uneducated. People who live under these conditions are being denied their economic, social and cultural rights.

Careful management of the national economy

A government which does not manage its economy well will not have enough resources to guarantee basic human rights. However, if these rights are not met it is difficult to create the accountable and transparent institutions so vital to good governance and to sustainable development.

Good governance is an ideal which is difficult to achieve in its totality. Very few countries and societies have come close to achieving good governance in its totality. However, to ensure sustainable human development, actions must be taken to work towards this ideal with the aim of making it a reality.

Therapeutic Jurisprudence as a model for rehabilitation


An Article I contributed to the Bar Association Law Journal in May 2004

Therapeutic jurisprudence looks to the interface between mind and body for an explanation as to the cause of psychological and behavioural dysfunction and for the means of its resolution. According to this approach, the physical nervous system is the means by which the inner core of the individual is expressed. A healthy, positive and fulfilled mind requires a healthy nervous system. Imbalance in the nervous system occurs due to the impact of stressful situations. There are experiences in life that can overpower a weak nervous system such as grief, child abuse, family breakdown, crime, poverty, unemployment and bankruptcy. 

The result is physical change in the nervous system called stress. The quality of the individual nervous system and its coping ability and the nature of a stressful life event will determine how it reacts to stress. Medicine recognizes the adverse impact that stress produces in physical and psychological functioning . Research suggests that stress causes impairment in the functioning of the brain . It also has found that stress leads to problems such as anxiety, insomnia, posttraumatic stress disorder, substance abuse and crime.

Natural law is of course the name of one of the main approaches within western jurisprudence. Western natural law theory emphasizes that humans are rational by nature and should be ordered according to objective and universal principles derived from human nature or, as some suggest self-evidently perfective of that nature. The result of such an ordering is said to be the promotion of happiness and fulfilment.

However,  therapeutic  approach to natural law is not founded upon the attempted ordering of life according to reason or the derivation of principles of right conduct through practical reasoning as is advocated by some natural law theorists. The natural law or order seen in humanity by us is expressed in the innate tendency in human nature to develop, to grow to full potential through the progressive optimization of the psyche. We see that tendency to be an example of the growth that is seen in the natural environment. According to our  approach, the source of that tendency is the inner core of humans. The enjoyment of full potential is the basis for happiness, fulfilment and right action and is attained through techniques that remove psychological imbalance and promote self-actualization. A fully developed individual acts in harmony with other human beings and in harmony with nature. Therapeutic  jurisprudence sees the role of law to be the promotion of full individual development.

There are elements in the writings of early Western philosophers such as Plato, Cicero, Marcus Aurelius and Aquinas that are similar to those emphasized in our  approach to natural law: the location of the source of natural law within the individual; the use of an inner technology to promote self-development; and the development of the full potential of the individual as a means of promoting right action (King, 1997). However, the methods advocated by these philosophers have not been widely used in the West and their practical relevance has been lost.

Nevertheless the ideal of self-development continues to be valued in legal thought and practice. Indeed, it is a goal cherished in international human rights instruments such as the Universal Declaration of Human Rights. Article 21, states that "Everyone, as a member of society...is entitled to realization, through national effort and international cooperation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality". 

However, the law has generally emphasized the pursuit of self-development through action. From the law's perspective, self-development is the ability to express one's personality in the best possible manner through the pursuit of one's tastes and interests in activity provided such activity is in harmony with others and with society as a whole. Law regulates human behaviour and seeks to ensure the provision of the necessary resources to promote this goal. However, the law has generally not emphasized the need for inner development such as that emphasized in our  approach.
The law also recognizes that psychological imbalance impedes right action. In sentencing an offender, a court must look into the need to  require an offender to have appropriate counselling or treatment to resolve psychological issues that lead to offending. However, a closer inspection of the concept of the psyche presented in our model suggests that it is richer than that underlying common criminal justice principles such as deterrence and rehabilitation.

The Therapeutic Model

Western approaches to law have been grounded in a view of human nature that emphasizes the value of the reasoning process in structuring right action. The law assumes that one can determine what is right by such a process. Thus, the very nature of the court process involves a rational inquiry to ascertain the facts giving rise to a legal problem and the application of principles of law to the facts to provide a solution. Further the principles used by courts in determining a solution are inspired by the view of humans as essentially motivated by rational processes. Hence, the criteria used by a court in assessing civil liability for negligence is the reasonable man: would a reasonable cardiologist have performed the heart operation in the way that the defendant did it? In assessing the defence of self-defence in a criminal trial in common law jurisdictions, the question whether a person used reasonable force is often relevant. 

Further, human rationality is the main assumption behind the principle of deterrence whereby people are coerced into compliance with the law. Drawing from utilitarianism, humans are seen to be rational creatures seeking pleasure and avoiding pain. If the threatened punishment is great enough then people will see that the potential pleasure arising from the criminal act is outweighed by the prospective sanction and avoid such conduct.

In addition, the development of the theory and practice of the law has been significantly influenced by a theory that sees humanity as essentially rational by nature. According to natural law theory, human beings using the process of reasoning are able to derive universal principles of right conduct from human nature (King, 1997). Such principles are the basis of law. Natural law theorists have sought to promote principles of right reasoning in order to promote right action. A modern variation of natural law theory sees the essential principles as not derived from human nature but as self-evident and perfective of it.

While we acknowledge the role reasoning plays in guiding human action, we also we also see  reasoning to be a particular mode of the functioning of the whole person. According to this approach, each aspect of the psyche and the functioning of the physiology must be taken into account in considering human behaviour. Its emphasis, therefore, is on the promotion of an optimal functioning of the inner core  rather than on the use of systems of reasoning or the use of force in order to promote right action.

Inner self , though there is no abiding person, has two connotations: lower self and higher Self. The lower self is that aspect of the personality which deals only with the relative or changing  aspect of existence. It comprises the mind that thinks, the intellect that decides, the ego that experiences. This lower self functions only in the relative states of existence: waking, dreaming and deep sleep.

The psyche therefore ranges from the senses that bring in information from the environment, the mind that receives that information and is the receptacle of memory; the intellect that discriminates, the level of feeling and intuition which support the decision-making process and the ego, the sense of "I" that synthesizes the experience of each other aspect of the psyche. In this model, desire is the impulse to action. If there is an error in perception, incorrect comprehension of a social situation, unbalanced emotions or poor decision-making ability, then the individual will be limited in the ability to interact effectively and harmoniously with the environment. Courts see daily proof of this fact with defence counsel in criminal cases submitting that their client has an anger management problem or poor cognitive skills or that their awareness and cognitive functioning were impaired by a drug or combination of drugs and that this was why the offending behaviour occurred.

Indeed, many people who come into a lawyer's office for advice and representation do so in relation to a law problem that arose from and/or generates stress in their lives. Those seeking a divorce suffer the life-wrenching stress of a broken relationship; those injured in an accident go through the trauma of inhibition in day to day functioning and, in some cases, the loss of work; and many offenders have a history of life trauma or have had the misfortune of a stressful life event that has precipitated their offending behaviour. Further, the court process itself into which these clients come can be foreign, alienating and stressful.

Members of the legal profession and judiciary have also paid increasing attention to the effects of stress in their own lives. Though some judges have been sceptical about stress having any relevance to the judiciary , others have highlighted large caseloads, the demand for prompt decisions, increased media scrutiny and increased demands from the legal profession as sources of stress. For lawyers, the demands of billing to meet increased target, having to meet deadlines, the lack of activities outside the law and consequent imbalance in lifestyle, the adversarial nature of the practice of law and increased dissatisfaction with the nature of legal practice are reported as sources of stress. Judges and lawyers are also not immune from life traumas common to humanity such as relationship breakdown, illness and grief.

For Therapeutic  jurisprudence, the problem of stress and the absence of the development of full inner potential are issues that need to be addressed to promote the great ideal of the law: fostering self development. Commonly, for the attainment of this goal, the law has been directed to the attainment and preservation of two essential principles: freedom and justice. The primary focus of each has been in terms of the outer expression of life. Hence, freedom of speech, freedom of movement, freedom of religion and the like have been cherished in human rights declarations and in legal and political writings as enabling people to fully explore and express their individuality. The law has sought to promote social justice by providing equal opportunity in terms of access to education, training and employment and to the material goods necessary to promote the expression of individual tastes and interests and the development of the self.

However, Therapeutic  jurisprudence points out that a person may enjoy the freedoms cherished by the law and have access to abundant material resources and still not enjoy fulfilment in life or attain full development. Indeed, such people may suffer from problems such as psychological and social dysfunction and be engaged in criminal behaviour and substance abuse. In addition to the material freedoms, the need is for inner freedom—freedom from stress and the resultant dysfunction. From this perspective, justice requires giving people access to the knowledge and techniques that promote such freedom. This also applies to the dispensation of justice to offenders. The application of punishment may well serve the demand for retribution but as an instrument of crime prevention and rehabilitation it is limited in its ability to prevent offending for it does not give the offender the means to resolve life stress that has lead to offending behaviour nor the means to deal with life challenges in the future. The same critique applies in relation to the use of systems of reasoning or educating people as to what is right or wrong: they do not remove psychological dysfunction.

A Paradigm shift in thinking

The principal technique used to resolve the problem of stress and to promote the development of the individual is a value –based spiritual model while the behavioural focus stresses on guided count down deep relaxation technique that also focuses on an eight point removal of negative traits that are ingrained. During the practice of relaxation the body settles down and attains a deep level of rest—a level far more profound that simply sitting down and closing the eyes. Rest is a natural healing mechanism of the body. The deep level of rest gained during this practice, dissolves stress and fatigue and thereby alleviates a wide range of physical and psychological problems.

The state of awareness gained through the practice of relaxation  is fundamentally different from other states of mind. Although the body is deeply rested, unlike in sleep the mind remains perfectly alert This is the experience of that aspect of the psyche referred to above as 'the Higher Self'. Researchers have found records of experience of inner silence in literature from writers from diverse fields, centuries and nations suggesting that the experience is not culture-specific but universal to the human condition..
The behavioural principle is that the regular experience of pure stillness facilitates functional and organizational changes in the brain that promote the progressive optimization of each aspect of the psyche and the unfolding of full potential in life. 

Research on relaxation methods provide significant support for this model of human development and its explanation for dysfunctional behavior. In considering research on stress reduction and self-development techniques generally it is important to note that techniques differ from each other in how they are practiced and in their effects on mind and body. 

The research on silence inducing deep relaxation  has found changes in body and mind during the practice suggesting the attainment of a unique state of mind . Research has found that during the experience of  silence there is increased orderliness and integration between the different parts of the brain. 

Research has also found significant improvement in diverse aspects of mind, body and behavior through regular practice. On a physical level, it has measured improvements including decreased incidence of disease and decreased health care costs, reversal of aging . As to psychology, measured benefits include decreased anxiety, increased intelligence, self-actualization, field independence and creativity and improved self-concept and academic performance . Alexander found that meditating offenders in a Massachusetts maximum security prison experienced greater self development in a year than college students commonly achieve over a 4 year undergraduate degree.

On a behavioral level, findings include improved marital relations, improved productivity and employee relations at work, and decreased substance abuse and recidivism. Typically, rehabilitation programs reduce offender recidivism by 10% with the higher rate of 25-30% being achieved with appropriately targeted programs. A recent study tracked offenders who had learnt silence inducing  techniques while in the Californian prison system. It found that over a 15 year following release they had 43.5 % fewer new convictions than a control group .

 Impact on  Legal Practice and Legal Education

The legal method, with its emphasis on the intellect and reasoning processes, has been seen to fragment the lawyer's personality, alienating him or her from feeling and intuition and from deeper levels of the self within. Such fragmentation inevitably adversely impacts psychological well being and the ability of the lawyer to lead a happy and fulfilling life. Some have suggested that there is a lack of spirituality in legal practice, with lawyers lacking inner directedness. Further, questions have been raised as to the worth of legal practice with its emphasis on the intellect over feeling, winning over a satisfactory outcome for all and long hours spent in generating income for the practice over a balanced life that allows for both inner and outer development and fulfilment. 

Such questioning has resulted in an exploration of different approaches to law that promote psychological well being and the resolution of conflict. An emerging approach to law explores the effect of law, the legal system and legal practice on psychological well being. This is Therapeutic jurisprudence (for example, Wexler & Winick, 1996). There is also an increasing resort to alternative methods of resolving legal problems such as mediation, collaborative legal practice in divorce cases and holistic legal practices. Critics of the adversarial nature of legal practice have suggested that rather than gladiators, lawyers should be seen as healers. From this perspective, just as doctors seek to heal an ill patient, lawyers seek to heal social conflict (Young, 1998). There has also been a growing recognition of the role that emotions play in the formation of law and in legal processes (Bandes, 1999).
These developments in legal theory and practice point to a search for a more comprehensive understanding of what it means to be a healthy and fulfilled human being living in harmony with others in society. The new concept of the psyche brings together the diverse aspects of individual functioning and provides a framework for explaining their relationship with the social environment. In doing so, it offers a framework in which the diverse problems facing the law, lawyer and their clients may be considered.

From the perspective of Therapeutic  jurisprudence, the law needs to move beyond a conception of the personality that emphasizes the pre-eminence of reason. Wholeness of personality comes not from the subjection of the personality to reason, but from the optimization and integration of the psyche through the direct experience of deep silence. Such experience brings about the resolution of psychological dysfunction and an integrated and measurable development in mind, body and behaviour. As a result, perception, feelings, thinking and decision-making aspects of the personality operate in harmony. This is healing of the psyche at the most profound level. However, the lack of the inner experience of the inner core and the accumulation of stress by the nervous system produces dysfunction in the different aspects of the psyche and inhibits the full development of the individual. 

Dysfunction in lawyers can fundamentally be seen to be a function of the system that produces them: legal education. Indeed, in several Western countries law students are reported to have depression and anxiety rates almost four times that of the general population (Sells 1994, 42). Sells attributes such problems not only to the pressures of legal education but to the inordinate focus on objectivity in legal education. Law students are taught to view a legal problem dispassionately, using the techniques of abstraction and reasoning. He says that problems emerge when objectivity becomes more than a way of approaching legal problems but a way of life, when one is limited to a particular and restricted way of looking at the world.