The Nature of Juristic Paradigms: Exploring the Theoretical and Conceptual Relationship between Adversarialism and Therapeutic Jurisprudence

Abstract

Problem solving courts appear to achieve outcomes which are not common in mainstream courts. There are increasing calls for the adoption of more “therapeutic” and “problem solving” practices by mainstream judges in civil and criminal courts in a number of jurisdictions, most notably in the United States and Australia. Currently, a judge who sets out to exercise a significant therapeutic function is quite likely to be doing so in a specialist court or jurisdiction, outside the mainstream court system, and, arguably, from outside the adversarial paradigm itself. To some extent, his work is tolerated but marginalized. But do therapeutic and problem solving functions have the potential to define, rather than complement, the role of judicial officers? The basic question addressed in this Article is, therefore, whether the judicial role could evolve to be not just less adversarial, but fundamentally non-adversarial. In other words, could we see — or are we seeing — a paradigm shift not just in the colloquial, casual sense of the word, but in the strong, worldview changing sense meant by Thomas Kuhn?

Keywords: Therapeutic jurisprudence, Paradigm, Thomas Kuhn, Adversary system