Prof. Dr Lakshman Madurasinghe Behavioral Scientist, Attorney-at-Law, Senior Professor Azteca University, North America ; Justice Priyasath Dep, PC- Former Chief Justice of Sri Lanka ; Justice Kumar Ekaratne Attorney-at-Law, former High court Judge ; Fr. Dr. Noel Dias – Former Editor-in-Chief of Sri Lanka Journal of International Law. Faculty of Law Colombo ; Ms. Dilrukshi Somasundaram- Attorney-a-Law , Lecturer in Law ; Ms. Susinidu Croos- Lecturer
Abstract
Therapeutic Jurisprudence looks to the interface between mind and body for substantiation on the explanation for cerebral and behavioural dysfunction and for the means of its resolution. According to this approach, the physical nervous system is the means by which the inner core of the person is expressed. A healthy, positive and fulfilled mind requires a healthy nervous system. Imbalance within, the nervous system occurs thanks to the impact of stressful situations. There are situations in life that will overpower a weak nervous system like grief, maltreatment, family breakdown, crime, poverty, severance, and ruin.
The result is a physical change in the nervous system called stress. The quality of the individual nervous system and its managing capability and thus the nature of a stressful life event will determine how it reacts to worry. Medicine recognizes the adverse impact that stress produces on physical and cerebral functioning. Research suggests that stress causes impairment within the functioning of the brain. It also has been found that stress results in problems like anxiety, wakefulness, posttraumatic stress complaint, medicine abuse, and crime.
Natural law is in fact the name of one of the main approaches within western justice. Western natural law proposition emphasizes that humans are rational by nature and should be ordered according to objective and universal principles deduced from mortal nature or, as some suggest self-evidently perfective of that nature. The results of such an ordering are claimed to be the creation of happiness and fulfilment.
A central feature of a well-functioning democracy is a well-functioning judiciary. As the third arm of government, the judiciary and courts provide an essential check on executive power and require judges to model the highest standards of integrity and ethical behaviour expected in civil society. Despite its importance, judicial wellbeing has not received the same research attention as the wellbeing of lawyers and law students. Alongside a large and growing body of international research revealing alarmingly high rates of depression and anxiety within the legal profession, sits a much smaller collection of studies relating to judges, As senior members of a stress-prone profession, managing workloads bordering on the oppressive, in the context of professional isolation, intense scrutiny and often highly traumatic material, there is good reason to expect that judicial officers are at particular risk of work-related stress. Given the impact of judicial decisions on people’s lives, and the pivotal role they play in our democratic system, courts arguably have a duty, not only to individual judges, but to the community more generally, to investigate and promote judicial wellbeing.
stress is defined as ‘the reaction people have to excessive demands of pressures, arising when people try to cope with tasks, responsibilities or other types of pressures connected with their jobs but find difficulty, strain or worry in doing so.’
‘Not being able to cope’ is a common denominator in other definitions of stress. It is important to note that stress is not confined to managers, it is also common among manual workers.
Previous research evidence has found that organisations with developed people management policies are more successful in the longer term. The concern of successful companies for employee welfare and development has been found to be a significant predictor of differences between the profitability and productivity of companies.
Key words: Therapeutic Jurisprudence, Stress, Depression
Introduction
Signs and health consequences of stress
Stress causes complex changes in the body’s chemical processes affecting the way people feel, think and behave. The immediate physical effects include a faster heart rate, a dry mouth and throat, butterflies in the stomach and excess perspiration. However, individuals react in different ways – some may hyperventilate, others may have headaches/migraine, muscle tension in their neck and shoulders, dizziness, blurred vision, skin rashes and allergies. Chronic stress can lead to physical and mental disorders.
Increases in colds and other infections as the immune system is weakened are early signs of stress. Other warnings could include backache and digestive illnesses. More serious conditions may follow such as ulcers, hypertension, angina and coronary heart disease.
Heart attacks and increased susceptibility to tumour growth can be the ultimate consequences. Fatigue seems a common reaction which is also related to difficulty in sleeping and insomnia. Other problems include anxiety, panic, irritability, hostility and aggression, psychosomatic complaints, depression and even ‘nervous breakdowns’. Dealing with everyday tasks becomes daunting and consumption of alcohol, tranquillizers or tobacco increases as people under stress try to ‘cope’. In terms of work, the end result may be ‘job burn out’ – when a person has depleted energy reserves, is pessimistic and dissatisfied, and has a low resistance to illness.
Sources of stress
Organization culture and management style can be a source of stress. Poor communications and indifferent leadership also create anxiety. Lack of competence causes stress too. This may arise from poor selection practices at the time of recruitment, promotion or transfer. It may arise because people have been inadequately trained for the new job. Social and economic events outside the employment relationship cause stress and need to be considered. Lack of control and ambiguity in work is one of the main reasons for stress. According to the UK
Department of Health’s self-reported work-related illness survey in 1995, 46% of respondents declared that their stress-related illness was due to work overload, high pace, pressure of deadlines, too much responsibility and too little training. Other sources of stress include continual exposure to higher management, clients and customers; work which is repetitive or lacking in variety, fragmented or involving short cycles of activity. The work environment can also be a source of stress, due to noise, poor lighting or ventilation, physical isolation and poor ergonomics of VDUs and other equipment. An important and often overlooked cause of stress is the failure of individuals to take responsibility for self-management of their learning and development and their consequent loss of confidence and inability to do the job. This also results in anxiety over their employability. Trading and financial difficulties may bring a fear of redundancy or transfer and/or career stagnation which may lead to stress.
Poor relationships are major causes of stress. (Bullying, harassment and violence at work are not uncommon.) Other causes of stress include conflicting demands at work and home. Stress of a Client Fees, Arrest, Jail Term, Uncertainty, Family, Job, Society, Social stigma, Guilt Stress of a Lawyer Physical…Cramps. Fatigue, Interfering thoughts, Fear of forgetting important details Fees, Witness preparation, Perception of Judge. Opposing Counsel, Vacation, Emotional withdrawal
What is Therapeutic Jurisprudence?
- Therapeutic jurisprudence (T.J.) is an interdisciplinary method of legal scholarship that aims to reform the law in order to positively impact the psychological well-being of the accused person.
- The therapeutic jurisprudential approach argues that holistic solutions must be sought to address the behavioral, emotional, psychological, or situational issues of the accused person.
- T.J. is the only theoretical approach that is concerned with the impact of legal processes upon participant well being and its implications for attaining justice.
- Law is a social force that produces behaviors and consequences.
- Sometimes these consequences fall within the realm of what we call therapeutic; while other times anti – therapeutic consequences are produced .
- TJ inherently favors outcomes that advance human dignity and psychological wellbeing. Starting with foundations in mental health and mental disability law, criminal law, and problem-solving courts and with a geographic focus on the United States
What we propose from a Therapeutic Jurisprudence perspective
DIGNITY
According to Michael Perlin, ”Dignity is the core of the entire T.J. enterprise”. He argues that we cannot seriously write about or think about T.J. without relevant conceptualizations of dignity to us.
Robert Schopp has connected dignity with TJ using this definition: In ordinary language, dignity refers to the quality of being worthy or honorable; true worth and excellence
COMPASSION
TJ is founded upon the psychology of compassion, understood as a sensitivity to and concern for the surfing of others and a commitment to alleviating and preventing it.
- In the context of TJ is any person upon whom the law acts or any actor within the legal process.
- The principle of compassion lies at the heart of all religious, ethical and spiritual traditions, calling usalways to treat all others as we wish to be treated ourselves. Compassion impels us to work tirelessly to alleviate the suffering of our fellow creatures, to dethrone ourselves from the centre of our world and put anoher there, and to honor the inviolable sanctity of every single human being, treating everybody, without exception, with absolute justice, equity and respect
EMOTIONAL INTELLIGENCE
- Emotional Intelligence Honesty, compassion, empathy, listening, understanding various points of view, hard work (with life balance), curiosity, and a commitment to healthy professional habits and attitudes are part of emotional intelligence (EI). Law schools have not traditionally focused on these things, but there is a trend now toward promoting EI and wellness.
LAW PRACTICE APPLICATIONS
- The use of this approach is becoming more widespread, and principles of therapeutic
jurisprudence have also been discussed in light of family law, employment law, torts, and in personal injury law. - The therapeutic jurisprudential approach is aligned closely with the subsequent development of the mental health court and is also relied heavily upon in other problem-solving court models including drug and other specialist courts.
TJ EMBRACES MANY ASPECTS OF THE LAW
- TJ now embraces many aspects of law and policy and presents a strong International orientation.
In addition to formal applications in judging and lawyering, TJ’s application has expanded to fields such as: family law, education settings, forensic psychology, psychiatry, elder law, employment
CONCLUSION
Restorative justice and remedial justice punctuate the significance of empowering parties, of laboriously involving them in disagreement resolution processes and of using processes that exhaustively address underpinning issues. They also stress the value of helping parties manage feelings associated with their legal problems and the significance of professionals exercising emotional intelligence in their work. The values and processes they promote have significant counteraccusations for the functioning of courts, attorneys and the justice system in general. They challenge conventional allowing about courts, legal practice and the part of petitioners and guests, while offering a richer and further professionally satisfying vision of their separate places. Still, they aren’t a nostrum for the justice system’s problems. Restorative justice isn’t effective in all cases, and other values of the justice system may overweigh remedial values in particular cases.