Freedom, social control, and the problem-solving court movement

Date21 December 2010
Published date21 December 2010
AuthorJames L. Nolan
James L. Nolan Jr.
Purpose – This chapter considers the consequences on liberty in
relationship to the development of the international problem-solving
court movement.
Design/methodology/approach – The research, which relies principally
on ethnographic fieldwork in six different common law countries
(England, Ireland, Scotland, Australia, Canada, and the United States),
explores the development of local problem-solving courts in each
jurisdiction. These include drug courts, community courts, domestic
violence courts, and mental health courts. The ethnographic fieldwork was
supplemented with data from various other sources, including government
reports, parliamentary debates, evaluations of individual court programs,
publications issued by various advocacy groups, media accounts, public
statements and articles by problem-solving court judges, and analyses of
specialty courts in law reviews and other academic journals.
Findings – The research reveal that the five countries outside of the
United States demonstrate greater concern with protecting the dignity of
Social Control: Informal, Legal and Medical
Sociology of Crime, Law and Deviance, Volume 15, 65–89
Copyright r2010 by Emerald Group Publishing Limited
All rights of reproduction in any form reserved
ISSN: 1521-6136/doi:10.1108/S1521-6136(2010)0000015006
the court, due process, and individual rights – or what the Australians
refer to as open and natural justice.
Originality/value – It is the first large-scale comparative study of
problem-solving courts in the common law countries where the movement
is most advanced.
At the end of my book The Therapeutic State, I reflect on the effects of a
therapeutically oriented state on matters of individual liberty. In the book, I
pose the question: does a therapeutic orientation foster the kind of liberty
that it often promises or does it inhibit individual liberty, if only
unwittingly? I note that state actors at the helm of therapeutically oriented
processes often see themselves as advancing programs that are beneficial and
liberating for individuals. I also observe that these programs sometimes
have unintentional consequences that are anything but liberating.
In the past decade, scholars have continued to explore these and related
questions as it concerns the consequences of the advancement of a
therapeutic culture on state processes. Of particular interest, in this regard,
is Daniel F. Piar’s recent examination of therapeutic influences on American
constitutional law. Piar observes the extent to which the ‘‘triumph of the
therapeutic has transformed the role of law in American life.’’ As he puts it,
‘‘If law once was reason, logic, or experience, it is now good feeling,
individual fulfillment, and therapeutic healing.’’ Piar notes both the promises
and the dangers of this development. On the one hand, the therapeutic
approach offers to expand ‘‘the roster of constitutionally protected liberties,
making the modern age ostensibly one of great personal freedom.’’ On the
other hand, ‘‘such freedom has its price, for the therapeutic culture ironically
risks fostering dependence in the name of self-fulfillment’’ (Piar, 2003). Thus,
therapeutically oriented law may actually ‘‘have the effect of increasing state
power at the expense of the self-reliance and personalautonomy necessary for
true democratic freedom’’ (Piar, 2003).
The impact of the therapeutic culture on legal practices, however, has
extended far beyond the realm of constitutional law, the focus of Piar’s
work. In fact, in the past two decades, a new legal theory has emerged that
specifically refers to itself as therapeutic jurisprudence (TJ). Although the
theory was first developed in the area of mental health law, it has since
spread to various other areas of law.
As Ian Freckelton (2008) observes,
Therapeutic jurisprudence as an approach to the law has proved extraordinarily
successful within a surprisingly short time. It has influenced thinking on law across an

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