1,720,993 research outputs found
The Adversarial Court System - Is it fair?
No full textThe adversarial system of litigation assumes that parties are able to present their disputes before an impartial tribunal, by use of professional legal advocates. This work critiques some of the fundamental assumptions of the adversarial system and examines two case studies in which it has failed to deliver justice for litigants
Therapeutic jurisprudence-A strong community and a maturing discipline
No full textThis core belief, which unites members of the TJ community, is that the law has an agency, which may be either helpful (therapeutic) or harmful (anti-therapeutic). In saying that it has “agency,” we conceive of law not simply as an inanimate, reactive and abstract set of rules and processes, shaped and driven by external forces, but as a dynamic, organic and proactive social force, implemented by actors who have significant power and discretion to influence the extra-legal consequences of their legal work in both designing and applying law (for general discussion of the concepts of the therapeutic design of law (TDL) and therapeutic application of law (TAL), see Wexler 2015; this volume, Chapter 1). In characterizing that agency as “therapeutic,” we mean that, in its capacity as a social force of this nature, it can have both positive and negative consequences for the emotional and psychological wellbeing of all the individuals who come into contact with it and for all the human relationships it touches. By being aware of the existence, causes and consequences of these therapeutic and anti-therapeutic effects, even relatively small changes in how law is designed and applied can significantly improve its effectiveness and the way it contributes to a healthier and more resilient community
Ethical Theory in Context
No full textThis chapter outlines the major ethical theories underpinning the applicaiton of ethics in a social context, particularly in legal and criminal justice contexts
Maintaining the ethic of service [Editorial]
No full textThis issue of Precedent is concerned with professional legal ethics. ln my view, professional ethics are rules about how you do your job, based on moral principles. By virtue of the nature of the work they do, the reputation of the institution through which they are admitted to practice (the court), and the consequences that can flow if they act inappropriately or incompetently, lawyers are under constant scrutiny in all aspects of their lives. Errors, omissions or misdeeds in both their professional and their personal lives have the potential to damage them, their clients, the profession itself and the court. We ought never to take for granted the trust the public places in us to preserve the integrity of the legal system itself, especially in times when that system may be under threat, either from without or from within
Restorative justice: Making amends, repairing relationships and healing
No full textSince the late 1970s, there has been a significant expansion in techniques for using mediated interactions between offenders and those affected by their behaviour. This trend began with juvenile justice conferencing, family group conferencing and Indigenous sentencing circles. The umbrella term used to describe these techniques and processes is ‘restorative justice’ (‘RJ’ to its fans and practitioners).Two important catalysts for this expansion were an increased awareness of the marginalisation of victims in the criminal justice system, and concerns over climbing recidivism rates
Mainstreaming therapeutic jurisprudence and the adversarial paradigm—incommensurability and the possibility of a shared disciplinary matrix
Full text linkProblem-solving courts appear to achieve outcomes that are not common in mainstream courts. There are increasing calls for the adoption of more therapeutic and problem-solving practices by mainstream judges in civil and criminal courts in a number of jurisdictions, most notably in the United States and Australia. Currently, a judge who sets out to exercise a significant therapeutic function is likely to be doing so in a specialist court or jurisdiction, outside the mainstream court system, and arguably, outside the adversarial paradigm itself. To some extent, this work is tolerated but marginalised.\ud
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However, do therapeutic and problem-solving functions have the potential to help define, rather than simply complement, the role of judicial officers? The core question addressed in this thesis is whether the judicial role could evolve to be not just less adversarial, but fundamentally non-adversarial. In other words, could we see—or are we seeing—a juristic paradigm shift not just in the colloquial, casual sense of the word, but in the strong, worldview changing sense meant by Thomas Kuhn?\ud
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This thesis examines the current relationship between adversarialism and therapeutic jurisprudence in the context of Kuhn’s conception of the transition from periods of ‘normal science’, through periods of anomaly and disciplinary crises to paradigm shifts. It considers whether therapeutic jurisprudence and adversarialism are incommensurable in the Kuhnian sense, and if so, what this means for the relationship between the two, and for the agenda to mainstream therapeutic jurisprudence.\ud
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The thesis asserts that Kuhnian incommensurability is, in fact, a characteristic of the relationship between adversarialism and therapeutic jurisprudence, but that the possibility of a therapeutic paradigm shift in law can be reconciled with many adversarial and due process principles by relating this incommensurability to a broader disciplinary matrix
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