Therapeutic Jurisprudence in the Appellate Arena-a Louisiana Jurist's Response

• Jurisdiction: United States,Federal,Louisiana
• Citation: Vol. 24 No. 01
• Publication year: 2000

SEATTLE UNIVERSITY LAW REVIEWVolume 24, No. 2FALL 2000

Therapeutic Jurisprudence in the Appellate Arena-A Louisiana Jurist's Response

Sol Gothard(fn*)

Therapeutic jurisprudence is concerned with the law's impact on emotional life and psychological well-being; it is interested not only in law reform, but also in how existing law may be most therapeutically applied.(fn1) Although the study of the law as a therapeutic agent may be a relatively new field,(fn2) the combination of common and civilian traditions of Louisiana law incorporates the concepts of therapeutic jurisprudence. In his article, The Judicial Revival of Louisiana's Civilian Tradition: A Surprising Triumph for the American Influence,(fn3) Professor Kenneth Murchison recognizes that the Louisiana judiciary is an American creation, however, its method of interpreting law derives from the civilian tradition of Western Europe, which recognizes that decisions rendered by the judiciary have an impact on society.(fn4) In this Article, I will show how Louisiana jurisprudence incorporates the concepts of therapeutic jurisprudence.

In his law review article, Professor Murchison(fn5) reviews the theoretical framework of Louisiana jurisprudence as described by Justices Mack Barham and Albert Tate, both of whom served on the Louisiana Supreme Court during the 1970s.(fn6)

As summarized by Professor Murchison, Justice Barham described Louisiana civil law and jurisprudence as "a heritage" that is "essentially a matter of technique rather than substance."(fn7) The main component of this technique is a rejection of the common law doctrine of stare decisis, which frees civilian judges from past decisions that do not serve present social needs.(fn8) While Justice Barham recognized that legislation is the primary source of law, he also recognized the legitimacy of other sources, including customs, and he argued that judicial decisions should be evaluated by their potential for producing socially desirable results.(fn9)

Louisiana jurisprudence, as described by Justice Tate, views the judge as the legislator's colleague, whose job it is to translate abstract legislation into solutions for specific problems.(fn10) The judge is to apply a functional approach that relies not on "logic alone," but also on "policy considerations of what rule is best for the community as a whole and of...