Tuesday, March 18, 2008

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.


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