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Blogging the Non-Adversarial Justice Conference

May 9, 2010

….John Braithwaite was the first speaker of the conference following the introductory remarks of Arie Freiberg and the introductory comments by the Attorney General. He of course is legendary as a great exponent of restorative justice, and responsive regulation and is the author of Crime, Shame and Reintegration. One of his key points was that adversarial approaches to justice should be a support for non-adversarial justice rather than the latter being simply an alternative to adversarial justice.

Professor Braithwaite focussed on using restorative approaches in addressing the causes of the global financial crisis and allied financial crises. He suggested that restorative justice conference style intervention by regulators could have been used with the US banks in relation to mortgage lending in risky cases at an early stage could have been an effective mechanism in preventing banks taking on further risky mortgages at an early stage. He suggested that this would be more effective than a punitive approach.

David Wexler’s address was on the progression of therapeutic jurisprudence from theory to practice and back again. However, he noted that therapeutic jurisprudence has never been a theory as such, but a field of inquiry, studying the effect of the law, its processes and actors on the wellbeing of those affected by it. He noted that therapeutic considerations can often be factored in without trumping other important justice system goals.

David spoke of the relationship between therapeutic jurisprudence and preventive law in providing an approach that identifies psycho-legal soft spots, where the application of the law and legal practice could provide a risk of emotional vulnerability that could be the emotional fall out of the law and should be addressed in legal practice. Robust counselling is a way in which a lawyer can respond to client needs in this situation.

David also pointed out that the power of a court to adjourn sentencing is a powerful mechanism to promote healing. This is part of the legal landscape that provides opportunities for the application of therapeutic jurisprudence. As part of this approach, although lawyers are not counsellors or social workers, at least they should be at least aware of treatment issues. This is also a matter for legal education to address in training future lawyers.

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