The past, present and future of mental health law: a therapeutic jurisprudence analysis

This article uses a therapeutic jurisprudence perspective to review the evolution of mental health law in the Western world by examining developments at various stages in history, in particular the 20th century. It suggests that one of the major challenges for the future, from a therapeutic jurisprudence perspective, will be to help minimise the stigma, prejudice and discrimination associated with mental health law. The article concludes with the suggestion that the question of whether mental health law itself, because it contributes to discrimination against mentally disordered people, may be anti-therapeutic requires more investigation and consideration.     

The performance of law students at a London college

This article examines the value of jurisprudence in legal education. It argues that jurisprudence should be mandated at an early stage of the students' law curriculum as the legal ideals that may be imparted through a jurisprudence course cannot be adequately taught in a professional ethics course or through teaching jurisprudential perspectives in doctrinal subjects. Law schools have a special responsibility to get students thinking about what law is, what makes law legitimate, and how law is related to justice, morality, politics and rationality. A mandatory jurisprudence course should be intentionally structured along these themes.     

法理学还要与部门法学疏离多久——以桑本谦先生的法律解释理论为分析视角

传统的建构型法律解释学和桑本谦先生所主张的解构型法律解释学都面临困境,而从部门法制度和部门法实践的角度来看,法律解释学并非无药可救。法律解释学的发展必然是和法律制度的发展、部门法实践的发展、法律共同体的发展乃至法治的发展联系在一起的。抽象的法理学建构和抽象的法理学解构都具有局限性。法理学视野下法律解释学所面临的困境,其实质是中国法理学所面临的困境,而造成这种困境的原因就在于法理学一直以来对部门法学所采取的疏离态度。     

一般法理学的“乌托邦”——述评《全球化与法律理论》

全球化对传统法理学体系结构的封闭、研究对象的狭隘和理论视角的片面提出了挑战。特瓦宁教授提出要复兴一般法理学,为描绘世界的总体法律图景提供适当的概念工具,为在更广阔的背景中审视法律现象选取有效的观察视角,为提炼和概括超越特殊法律文化的元语言(meta-language)探求实际可行的道路。尽管他的理论设计是完美的,却难以付诸法理学研究的实践。     

Prolegomenon to a Southern Jurisprudence

It is good to take stock from time to time and to see how things stand in jurisprudence. So, what is the relationship of doctrine and theory with jurisprudence? Is private law theory apolitical while public law contains politics for the very many constitutional ends in the Global South? In India, legal theorist Chhatrapati Singh very originally asked if legal systems and normative systems were the same? Chhatrapati’s enquiry was however a species of the classical approach to the law that promotes the law’s purity. On the contrary, the postcolonial approaches account for the historical life as well as the political proclivities of the law. The private law theory often seen as impersonal and non-imperial comes under scrutiny in the postcolonial approaches. Duncan Kennedy and Roberto Unger notably problematized contract theory, while Upendra Baxi argued for mass tort as public law—contract and tort are both private law—to offer, if you will, a jurisprudence of the South. A southern jurisprudence essentially rejects an impersonal reading of the private law.

     

中国经济法学的困境与出路——兼对社会法等部门法划分的反思

中国经济法学困境不在于以我国所定义的经济法内容本身,而在于经济法研究的经济法学出现了问题。经济法学其实是最具中国本土特色的部门法学,同时也是经济法学困境的原因所在。经济法学界研究路径转型对经济法学困境突破至关重要。通过学习和借鉴世界两大法系的务实禀赋,审视与检讨传统部门法划分理论,以一种非传统部门法划分理论审视经济法,包括但不限于以非传统部门法划分标准审视经济法的独立性、经济法划分的相对性、经济法回归到经济政策的法条解读或其他可能、经济法总论仅具有形式意义、经济法总论与分论是"形散而神不散"的关系等,这将是中国经济法及其经济法学的必然出路。     

论诸法学流派对法律方法的理论支援

法律方法理论不仅受规范法学理论的制约和支持,而且也受其他法学流派的制约和支持。不同法学流派所支持的具体法律方法不尽相同。如价值法学之于价值衡量、社会法学之于事实替代、规范法学之于效力识别、经济分析法学之于利益衡量、多元论法学之于法律续造等,都更容易产生支持效果。尽管不同法学流派各自支持不同的法律方法,但这不否定某一法律方法受多个法学流派理论支援的情形,也不否定一个法学流派可以支持多种法律方法的情形。     

再论法律解释学

本文通过对法律解释学与概念法学、法社会学、价值法学、解释学法学、立法学关系的揭示,旨在厘清法律解释学的概念及其范围。法律解释学是一个偏重方法论的学科,属于实用法学的范畴,是一种能够在一定程度上体现实践理性的法学。法律解释学把司法作为思考问题的出发点,以建构裁判规范为己任,强调根据法律进行解释是其基本方法,但它并不否认其他法学方法融入裁判规范。当代法律解释学承认制定法、法律价值、事物的本质、公共政策、良善风俗等都可以通过发现、论证、解释、衡量进入作为裁判规范的法律,都可以作为法官法源。法律解释学是以司法方法论为核心内容的实用法学。     

通往司法的法理学——中国法理学的现实主义路向

法理学研究与司法实践是建构法治国家的两个紧密关联的重要方面。当前中国法理学研究中存在宏大叙事和文本主义的倾向,在司法实践中则有死守"法律形式主义"的可能,两者因与现实脱节而构成目前中国法理学研究的困境,而引致这种困境的则是占据主导的传统"立法者的法理学"。通过超越传统司法推理模式,转换"立法者"的姿态,而以法律现实主义的立场与方法,确立一种通往司法的法理学,或可摆脱前述困境。     

论法律人工智能的法理逻辑

法律人工智能的法理是"实践之法理",是证成法律人工智能实践之正当性的理据,它反映人工智能的技术理性与法律实践理性相融合以揭示法律运行的规律和特征,是"法外之理"的又一阐释。法律人工智能的法理逻辑在于辩护和证成,其价值不仅为法律人工智能提供法理解释和学理支撑,还在于规范和引导法律人工智能的发展。法律融合人工智能有其天然条件,探究其蕴含之法理是法律融合科技之法理的新命题,法理形式理性是辩护法律人工智能之法理的本质特征。法理之要义应在于指导人工智能理解和遵循立法及司法规律,符合法律任务的特征,满足法律实践的需求,定位和发挥"辅助手"的作用,最大限度地发挥人工智能的技术优势。     

‘Tolling for the luckless,the abandoned and forsaked’: Therapeutic jurisprudence and international human rights law as applied to prisoners and detainees by forensic psychologists

Objectives. There has been an explosion of interest in therapeutic jurisprudence as both a filter and lens for viewing the extent to which the legal system serves therapeutic or anti‐therapeutic consequences. However, little attention has been paid to the impact of therapeutic jurisprudence on questions of international human rights law and the role of forensic psychologists. The paper aims to provide an intersection between human rights, therapeutic jurisprudence, and forensic psychology. Method. Human rights are based on legal, social, and moral rules. Human rights literature generally considers legal rights but such policy statements do not provide principles to guide forensic psychologists in addressing moral or social rights. Therefore, a framework to guide forensic psychologists is required. Conclusion. As duty‐bearers, forensic psychologists need to address the core values of freedom and well‐being in rights holders (in this instance, prisoners and detainees with a mental illness). The paper proposes that human rights principles can add to the normative base of a therapeutic jurisprudence framework, and in‐turn, therapeutic jurisprudence can assist forensic psychologists to actively address human rights.     

Therapeutic jurisprudence and responsivity: Finding the will and the way in offender rehabilitation

Correctional systems worldwide are currently undergoing a shift towards rehabilitation. Underpinning rehabilitation are the principles of risk, need, and responsivity. Responsivity includes internal responsivity (offender characteristics) and external responsivity (staff and setting characteristics). The responsivity principle has been neglected in the literature. While contemporary psychological theories of offender rehabilitation address internal responsivity, they do not address external responsivity, particularly in relation to the impact of the law. Therapeutic jurisprudence as a legal theory provides the opportunity to complement psychological theory and to address responsivity in offender rehabilitation. Therapeutic jurisprudence utilizes psychological knowledge to determine ways in which the law can enhance individual well-being. The purpose of this article is to demonstrate a psycholegal approach to offender rehabilitation. Psychological approaches can be applied to motivate offenders and provide them with the opportunity to make informed decisions about participation in rehabilitation programmes. However, this approach will not succeed without harnessing correctional staff as legal actors and potential therapeutic agents. A cognitive--behavioural model of an organizational culture change towards rehabilitation is proposed. In this endeavour “the will and the way” in both offenders and staff can be harnessed to maximize the therapeutic effects of the law.     

The Jurisprudence of Constitutional Conflict: Some Supplementations to Mattias Kumm

Abstract:  Mattias Kumm has developed a jurisprudence of constitutionalism beyond the State (CBS) proposing principles, to be applied by courts of both the Community and the municipal levels, about how to deal with constitutional conflicts. This CBS is supposed to be part of neither the Community nor the municipal legal systems but to emerge from a legal practice comprising the whole of Community and municipal laws. Preliminarily Kumm claims, situating himself, for argument's sake, within the framework of analytical jurisprudence, that there is no legal reason for a court not to choose a different ultimate legal rule than the one it used to adhere to. These supplementations argue that Kumm's preliminary claim is erroneous. If accepted, this argument eliminates one of the reasons for the development of CBS. Concerning Kumm's main claim, these supplementations argue that the substantive content of CBS—its principles—may well be, and indeed largely already are, accommodated within the traditional structure of legal systems founded on ultimate legal rules, and that the structure proposed by Kumm would make impossible any distinction between general and legal discourses, thereby seriously undermining the determinacy of law. It also argues that Kumm's CBS can be reconstructed, within the analytical framework, only as outright supremacy of EC law.     

Sex crime legislation: Proactive and anti-therapeutic effects

Therapeutic jurisprudence may have its major role within law practice, but analysis of the law from a therapeutic perspective is a task that should not be neglected; how a piece of legislation is designed and formulated certainly influences the therapeutic outcome of a legal process. This article uses sex legislation as an example to demonstrate how the old rape law based on coercion has anti-therapeutic effects on rape victims. If the law requires resistance, it implies that a woman is sexually available until she resists physically, resulting in an attitude that a woman reporting rape without injuries should be mistrusted. This mistrust of the victim and the victim's attendant feelings of self-blame aggravate the victim's trauma. On the other hand, a modern rape law based on lack of consent gives the signal that a woman is not available until she has given her consent, resulting in a different starting position for the investigation. Since the will of the victim must be respected, the victim herself must be respected in the legal process. Furthermore, being able to tell one's story in a respectful atmosphere can be more important for the well-being of the victim than the outcome of the reported case.     

The unintended impact of the therapeutic intentions of the New Zealand Mental Health Review Tribunal? Therapeutic jurisprudence perspectives

Mental health review bodies engage in complex decision-making that may explicitly incorporate a therapeutic philosophy. Examination of select decisions of the New Zealand Mental Health Review Tribunal offers a foundation for understanding some implications of a pro-therapeutic approach. This analysis draws upon therapeutic jurisprudence scholarship in relation to three aspects of the hearings as documented in the written decisions: advocacy, therapeutic intervention, and the dignitary potential of the proceedings. The research explores the unintended consequences of a pro-therapeutic approach and evaluates the potential application of therapeutic jurisprudence within a mental health law context.     

Responding to violence against women: social science contributions to legal solutions

Violence against women represents a serious problem in America. Not only does intimate partner violence represent a significant threat to women, but it also counts among its victims, children living in the violent household. By its very nature, intimate partner or domestic violence may be approached as either a legal or a social problem. However, there is a shortage of legal approaches that have been informed by sound social science research. One promising framework for developing such integrated responses to intimate partner violence is therapeutic jurisprudence, which encourages legal professionals to work closely with social scientists to develop system responses based on empirical data. Such an approach contrasts sharply with the current practice of developing law based on assumptions, which frequently reflect traditional paternalistic and sexist attitudes toward women. This paper begins by examining the current theories and scientific knowledge on domestic violence with particular emphasis on the supporting data. A theoretical framework for conceptualizing domestic violence characterized as patriarchal terrorism as distinct from common couple violence is examined and offered as a means of explaining inconsistencies in research findings. Following a review of current legal responses to domestic violence, the paper concludes by outlining alternative strategies and recommendations for future efforts that are supported by current theory and research.     

Therapeutic jurisprudence: A framework for evidence-informed health care policymaking

Translation of evidence-based practice (EBP) into health care policy is of growing importance, with discussions most often focused on how to fund and otherwise promote EBP through policy (i.e., at system level, beyond the bedside). Less attention has been focused on how to ensure that such policies - as enacted and implemented, and as distinguished from the practices underlying policies - do not themselves cause harm, or at least frustrate accomplishment of "therapeutic" goals of EBP. On a different front, principles of therapeutic jurisprudence (TJ) in law have been developed, most prominently in certain areas of law (e.g., mental health and family law), to support more collaborative, less traumatic advocacy and conflict resolution. This paper draws on current applications of TJ and translates such into a therapeutic approach to health care policymaking that moves beyond promotion of EBP in policy. Health care policy itself may be viewed as an intervention that impacts health, positively or not. The goal is to offer a framework for health care policymaking grounded in TJ principles that does not focus on which evidence is "right" for policy use, but rather how we can better understand how consequences of policy, intended or not, affect the well-being of populations. Such framework thus moves policymaking from an either/or debate to a data- and human-driven process. Utilizing TJ framing questions, policies can be developed and evaluated through open dialogue among diverse voices at the table, including - like interventions - the "patients" or, here, targets of such policies. Collectively, they clarify how ends sought - to enhance (or at least not impair) health - can best be achieved through policy when needed, recognizing that as an intervention, there are limits to and boundaries on the usefulness of policy.     

Defamation in cyberspace: A Japanese perspective

The aim of this paper is two-fold: first, to introduce how Japanese law and its jurisprudence have dealt with the case of on-line defamation, which is arguably one of the most acute problems in modern society, and second, to critically examine the efficacy of such an approach. The recent decision of the Supreme Court in on-line defamation (as oppose to off-line defamation) will be introduced as an exemplar of the way Japanese law and its jurisprudence have dealt with such an acute problem. A first step will be to provide, by way of background, a brief overview of how defamation in a conventional sense has been treated by the Japanese legal system. The second step will be to outline how the Japanese jurisdiction has dealt with on-line defamation, that is to say, to what extent the Japanese court regulates on-line defamatory comments made by the ordinary people. A third step will be to examine the efficacy of such an approach, and the final step will be to examine whether the UK court can learn a lesson from the Japanese jurisdiction. The author will draw upon Japanese jurisprudence, in order to consider whether a valuable lesson might be offered to the UK jurisdiction.     

全球化与法理学的变革和更新

全球化进程深刻地改变着法的存在方式、价值取向和发展方向 ,也必然引起法理学的理论变革与更新。本文以法律本体论、法律价值观、法律人格观、法律发展观、法治观等五个法理学的基本论题为主题 ,分析或展望全球化所可能引起的法理学的理论变革和更新。     

The Concept of Jurisprudence*

Abstract. The first part of this article contains (i) considerations as to the relationship between jurisprudence and legal dogmatics, legal philosophy, and sociology of law; (ii) considerations about the status of jurisprudence both as a meta- and an object-theory. These lead to the suggestion that jurisprudence should be defined as a general juristic theory of law and legal science. In the second part, the character and elements of this definition are explained systematically. The article's main thesis is that jurisprudence is not distinguished from legal philosophy and sociology of law by its subject or its method, but by the specifically juristic research aspect or perspective it is based upon.