FROM AN ARTICLE I SUBMITTED TO THE BAR ASSOCIATION JOURNAL IN 2004
Therapeutic Jurisprudence looks to the interface
between mind and body for substantiation on
the explanation for cerebral 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 person is expressed.
A healthy, positive and fulfilled mind requires
a healthy nervous system. Imbalance within, the nervous system occurs thanks to the impact of
stressful situations. There are situations in life that
will overpower a weak nervous system like grief, maltreatment, family breakdown, crime, poverty, severance, and ruin.
The result is a physical change in
the nervous system called stress. The quality of
the individual nervous system and
its managing capability and thus the nature of
a stressful life event will determine how it reacts
to worry. Medicine recognizes the adverse impact that stress produces
on physical and cerebral functioning. Research suggests
that stress causes impairment within the functioning of
the brain.
It also has been found that stress results in problems like anxiety, wakefulness,
posttraumatic stress complaint, medicine abuse, and crime.
Natural law is in fact the name of one of the main approaches within
western justice.
Western natural law proposition emphasizes that humans
are rational by nature and
should be ordered according to objective and universal principles deduced from mortal nature or,
as some suggest self-evidently perfective of that nature.
The results of such
an ordering are claimed to be the creation of happiness and fulfillment.
Still, the remedial approach to natural law isn't innovated upon
the tried ordering of life according to reason or
the derivate of principles of right conduct through practical logic as
is supported by some natural law proponents.
The law or order seen in humanity by us
is expressed within the ingrained tendency in trait to develop,
to grow to full eventuality through
the progressive optimization of the psyche.
We see that tendency to be an illustration of
the expansion that is seen within
the natural terrain. According to our approach,
the source of that tendency is the inner core of humans.
The enjoyment of full eventuality is
the basis for happiness, fulfillment, and right action and
is attained through ways that remove cerebral imbalance
and promote self-fulfillment.
A completely developed individual acts consonant with other populace and consonant with nature. Therapeutic justice sees
the part of the law to be the creation of full individual development.
While we admit the part logic plays
in guiding act,
we also see the logic to be a specific model
of the functioning of the entire person. According to
this approach, each aspect of the psyche and thus the
functioning of the physiology
must be taken under consideration in considering the right
action.
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.
The psyche thus ranges from
the senses that bring in information from
the terrain, the mind that receives that information and
is the container of memory; the intellect that
discriminates,
the position of feeling and suspicion which support the decision-making process and thus the pride,
the sense of "I" that synthesizes the experience of
every other aspect of the psyche.
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 that 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 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 counseling 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.
Indeed, most of us
who visit a counselor's office for advice and
representation do so in reference to
a law problem that arose from and/ or generates stress in
our 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 performing and,
in some cases, the loss of work; and lots of malefactors have a history of life trauma
or have had the mischance of a
stressful life event that
has rained their offending behaviour. Further,
the court process itself into which
these guests come is frequently foreign, alienating, and stressful.
Members of
the bar and judiciary have also paid increasing attention to
the consequences of stress in their own lives. Though
some judges are skeptical about stress having any applicability to
the bar, others have stressed large caseloads,
the demand for prompt opinions, increased media scrutiny, and increased demands from
the bar as sources of stress. For attorneys,
the demands of billing
to meet raised targets, having to meet deadlines,
the lack of conditioning outside
the law and consequent imbalance in life, the inimical nature of
the practice of law and increased dissatisfaction with
the character of legal practice are reported as sources of stress. Judges and attorneys also aren't vulnerable to life traumas common to humanity like relationship breakdown, illness and grief.
For Therapeutic justice,
the matter of stress and thus the absence of
the event of full inner eventuality are issues that need to be addressed to request the good ideal of
the law fostering self-development. Generally, for
the attainment of this thing,
the law has been directed to
the attainment and preservation of
two essential principles freedom and justice.
The primary focus of everyone has been in terms of
the external expression of life. Hence, freedom of speech, freedom of movement, freedom of religion such
like have been cherished in human rights affirmations and
in legal and
political writings as enabling people
to completely explore and express their individuality.
The law has sought to promote social justice by furnishing equal occasion 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 thus the development of
the self.
Still, Remedial justice points out that
a person may enjoy the freedoms cherished by
the law and have access to abundant material coffers and still not enjoy fulfillment in life or attain full development. Indeed, similar people
may suffer from problems like cerebral and social dysfunction
and be engaged in felonious behavior and substance abuse. In addition to
the fabric freedoms, the necessity is
for inner freedom — freedom from stress and thus the attendant dysfunction.
From
this station, justice requires giving people access to knowledge and ways that promote similar freedom.
This also applies to
the division of justice to malefactors.
The operation of discipline could serve the demand for retribution but as
an instrument of crime forestallment and recuperation, it's limited in
its capability to stop offending for it
doesn't give the lawbreaker the means to resolve life stress that
has led to offending behasviour 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 than 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 this 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 the 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 provides 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 the mind and body.
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 learned silence-inducing techniques while in the Californian prison system. It found that over a 15 years 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 fulfillment.
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 integrated and measurable development in mind, body and behavior. As a result, perception, feelings, thinking and decision-making aspects of the personality operate in harmony. This is the 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.
Prof.Lakshman Madurasinghe
