Review: Emma Jones and Anna Kawalek, ‘Dissolving the stiff upper lip: Opportunities and challenges for the mainstreaming of therapeutic justice in the United Kingdom’

I want to start this review with a large question: what is the purpose of law? I am drawing a distinction here between law and laws, singular and plural, because it is easier to imagine what the purpose(s) of laws themselves are. In the singular, however, law takes on the character of a monad: in broad terms, an (almost) essential idea, concept, or whole identifiable without specific material form (see Leibniz’s Monadology, for those interested). The law is conceptually omnipresent, derived, depending on perspective, from nature, from social interaction, or from necessity, but in all cases with some sort of regulatory function.

The reason I begin here is because therapeutic justice offers the opportunity to reimagine the law in a way that ‘validates the consideration of law’s impact upon psychological and emotional wellbeing’ (76). By centring affect, it allows a reflection not just on the skills of practitioners and the logics of client cases, but instead a recognition of the meaningful relationships of care that develop within legal spaces. Jones and Kawalek invite UK legal communities to interrogate the ‘perceived rationality of “thinking like a lawyer”, often interpreted as requiring emotions and feelings to be disregarded or suppressed’ (77), upending a supposed predilection against emotional indifference. They suggest two avenues for how ‘[therapeutic justice] can be incorporated into legal education. Firstly, as a discrete topic area[; s]econdly, by using [its] approach[es] to teaching and learning […] throughout […] the law school curriculum’ (77). They view clinical legal settings as particularly conducive.

Already, despite the purported rationality of the law, emotive terms enter legal determinations in decisive ways. Consider that judges require to be satisfied – an unequivocally affective term – of propositions and arguments and that client experiences can be more about principle than substance, about affront rather than material consequence. It seems worthwhile, therefore, to explicitly explore affect in the law, rather than simply gloss over it. Of course, this necessarily creates a space of antagonism with the ‘[t]raditional UK legal norms of objectivity, impartiality[,] and rationality’ (80). As legal communities increasingly address systemic, structural, and institutional biases, however, interrogating whether these norms are actually present or just assumptive labels papered over dominant perspectives is imperative. Less dramatically, ‘growing interest in non-adversarial dispute resolution’ (80), which require manifestly different communication and relational skills, makes having an understanding of the complex intersections of psychology and law entirely practical. Jones and Kawalek offer persuasive case studies throughout their article.

Instead of simply regulatory, what if the law could be seen ‘in a richer way by pondering the therapeutic and anti-therapeutic impact of “legal landscapes” (legal rules and procedures) and of the “practices and techniques” (legal roles) of actors such a lawyers, judges, and other professionals’ (Wexler 2014, cited on 82)? If the law adopts a mediatory role, cognisant and appreciative of the multiple dimensions of affective relationships between the legal systems and participants, and, indeed, between participants themselves, there is a chance that it is not just judges who will find themselves satisfied.

Exemplary quotations:

‘Incorporating [therapeutic justice] within clinical legal education would thus enable it to be considered both within the development of lawyering skills, but also in relation to ethics and values in a way which applies the abstract to concrete experience.’ (79)

‘What is clear is that non-adversarialism is becoming more prevalent within legal spheres across the British Isles. Increasingly, there is a need to move towards a system encompassing the therapeutic ideal, especially in cases involving vulnerable individuals. It is also clear is that this change needs to exist on a broader level than simply the practices themselves, and instead should be anchored in a therapeutic legal or political climate.’ (82)

Review by Arün Smith, Student Advisor

Full citation: (2019) 63 International Journal of Law and Psychiatry 76 <> (Open Access)

To receive monthly updates on the work completed by the University of Strathclyde Law Clinic straight to your email, please sign up here.