Judith Herman’s “Truth and Repair,” Part 3: Applications to therapeutic jurisprudence
In this, my third look at Dr. Judith Herman’s important new examination of psychological trauma, Truth and Repair: How Trauma Survivors Envision Justice (2023), I would like to connect the theme of trauma and justice to therapeutic jurisprudence (TJ), a multidisciplinary school of theory and practice that examines the therapeutic and anti-therapeutic properties of law, legal processes, and legal institutions.
To summarize: Dr. Herman holds that the final stage of recovering from trauma is justice, reasoning that “(i)f trauma is truly a social problem, and indeed it is, then recovery cannot be simply a private, individual matter.” She identifies acknowledgment, apology, and accountability as the key elements of justice. Also, she identifies restitution, rehabilitation (of the offender), and prevention as the key elements of healing.
Basic TJ principles hold that, whenever reasonably possible, outcomes of legal events (e.g., litigation, negotiation, or drafting of documents such as wills and trusts) should affirm the dignity and promote the psychological health of the parties involved.
These general goals are a strong match for Dr. Herman’s elements of justice and healing.
Truth and Repair frequently endorses restorative justice (RJ) — a concept and practice often mentioned in the same breath as TJ — as a promising avenue toward helping trauma survivors obtain justice. Herman invokes Australian criminologist and RJ adherent John Braithwaite in observing that RJ is about focusing on “repairing the harm of a crime rather than punishing offenders for breaking a law.” In fact, Braithwaite’s own work has closely analyzed what he sees as the similarities and differences between RJ and TJ.
I’ve noted on many occasions that therapeutic jurisprudence scholarship and practice need to better incorporate trauma-informed understandings and perspectives. Dr. Herman’s positing that justice is a final recovery step for trauma survivors significantly helps us to link trauma-informed prevention and response to TJ, and vice-versa.
For free access to John Braithwaite’s comparison and contrast of TJ and RJ, “Restorative Justice and Therapeutic Jurisprudence,” Criminal Law Bulletin (2002), go here.
For free access to my extensive survey of therapeutic jurisprudence, “Therapeutic Jurisprudence: Foundations, Expansion, and Assessment,” University of Miami Law Review (2021), go here.