The nature of juristic paradigms : exploring the theoretical and conceptual relationship between adversarialism and therapeutic jurisprudence
Stobbs, Nigel (2011) The nature of juristic paradigms : exploring the theoretical and conceptual relationship between adversarialism and therapeutic jurisprudence. Washington University Jurisprudence Review, 4(1), pp. 97-150.
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 paper 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?
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|Item Type:||Journal Article|
|Keywords:||therapeutic function, adversarial paradigm, Thomas Kuhn|
|Subjects:||Australian and New Zealand Standard Research Classification > LAW AND LEGAL STUDIES (180000)|
|Divisions:||Current > QUT Faculties and Divisions > Faculty of Law|
Current > Research Centres > Law and Justice Research Centre
Current > Schools > School of Law
|Copyright Owner:||Copyright 2011 Washington University|
|Deposited On:||23 Feb 2012 08:12|
|Last Modified:||23 Feb 2012 10:36|
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