Analyzing the Normative Nature of Therapeutic Jurisprudence

Abstract

Recent writings have debated TJ’s normative nature. Some proffer TJ as the potentially dominant legal paradigm, capable of reinventing law and justice systems at their core. Critics assert that TJ: violates zealous representation and the right to effective assistance of counsel; is inappropriately patronizing; allows indeterminate sentencing; raises due process issues; and violates individual rights. Strong arguments are presented on both sides of the debate but the conclusions are far from final or ultimately convincing. I have recently argued that adopting an Aristotelian natural law virtue theory of justice and drawing clear distinctions between three different normative levels (legal practice, legal theory, and legal order) provide the necessary tools to clarify these debates and support more definitive conclusions. In keeping with this approach, this paper argues that TJ is normative at the level of legal practice and perhaps at the level legal theory. However, TJ doesn’t provide a higher order source of legal order norms. Further, the refutation of TJ as a source of legal order norms is critical for TJ to remain respectful of people’s individual and cultural values; and, to uncover the relationship between TJ and the adversarial system as two parallel vectors in the comprehensive justice movement.