A view from Vienna: New wine and new bottles for the practice and substance of law

It seems that every time you turn a corner in Old Vienna, you see sights like this one. (photo: DY, 2015)

Location indeed: It seems that every time you turn a corner in Old Vienna, you see sights like this one. (photo: DY, 2015)

Yup, as the real estate folks might say, sometimes it’s all about location, location, location.

As I wrote over the weekend, I’m in Vienna, Austria, for the International Congress of Law and Mental Health. Among other things, this biennial gathering allows me to reconnect with people and ideas associated with therapeutic jurisprudence (TJ), the pioneering school of legal thought that examines the therapeutic and anti-therapeutic properties of law, legal processes, and legal practice.

It struck me how absolutely cool it is to be at this particular conference in a city where matters of the mind have such deep historical roots. It is both inspiring and instructive to exchange ideas with scholars, practitioners, judges, and students who embrace no less than a transformative commitment to creating laws and legal systems that advance psychological well-being.

Professor David Wexler, a co-founder of therapeutic jurisprudence, is fond of invoking a “new wine” and “new bottles” analogy for describing TJ’s role. In a 2014 law review article about the criminal justice system, David suggests that we “think of TJ professional practices and techniques as ‘liquid’ or ‘wine,’ and . . . think of the governing legal rules and legal procedures—the pertinent legal landscape—as ‘bottles.'”

In other words, the “wine” of the law is how lawyers and other legal stakeholders go about doing their work. This may include essential lawyering tasks such as interviewing clients, negotiating settlements, and conducting litigation. The “bottles” of the law are the substantive rules that define legal rights, responsibilities, and relationships and the procedural structures and mechanisms by which we attempt to resolve legal matters.

I like the wine and bottles analogy, and it certainly applies to my realm of employment and labor law and policy. A TJ-inspired “wine” for employment law practice involves acting preventively concerning employment disputes, trying to mend work relationships rather than to further fracture them, and engaging in smart, sensitive client counseling.

A TJ-inspired “bottle” for employment law includes drafting and advocating for the anti-bullying Healthy Workplace Bill, the very topic that attracted me to therapeutic jurisprudence in the first place. Properly constructed workplace bullying legislation creates incentives for employers to act preventively and responsively towards bullying behaviors and provides targets with a legal claim for damages.

I realize that some readers may pass over articles in which I toss around this unwieldy sounding term. “Therapeutic jurisprudence” is a mouthful, yes? But let’s think about it: How much better would our laws and legal systems be if they were designed mainly to encourage psychologically healthy outcomes? If you understand the significance of this question, then you now comprehend the essence of therapeutic jurisprudence and why it’s so important.

One response

  1. Pingback: What’s in a name?  Thinking about therapeutic jurisprudence | Therapeutic Jurisprudence in the Mainstream

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