Therapeutic Jurisprudence And The Uniform Code Of Military Justice

7095 Words29 Pages

Lorna Kennedy*


In recent years scholars, throughout the legal and educational domain, have considered a vast range of topics through a Therapeutic Jurisprudence (TJ) lens, to include, the characteristics of mental disability law, family law, criminal law and criminal procedure, employment law, gay rights law, and tort law. But, nowhere has there been a comprehensive plea for therapeutic jurisprudence within the military.
Until recently, little was written about the need for TJ within the military justice system or within the Uniform Code of Military Justice (UCMJ). Indeed, literature is sparse beyond the call for TJ in cases involving PTSD.
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Judged guilty before proven innocent, the soldier is chaptered out without benefit of counseling or representation of counsel. Most certainly without regard for psychologically humane treatment or TJ use.
This article exposes the inequity amongst the ranks, points to the extreme measures taken by the chain of command and examines the way in which soldiers are punished by analyzing the existing paradox of authority between the UCMJ and the judiciary, the history of the laws and authority within the U.C.M.J., and the need for Therapeutic Jurisprudence (“TJ”) when adjudicating within the Military. Part I, discuss the Article I of the Constitution and looks at the historical perspective of military justice. Part II, addresses non-judicial punishment within the UCMJ. Part III, discusses the institutionalized problem within the UCMJ. Part IV, examines TJ and the role of TJ within jurisprudence. Part V, explores the inherent problem of military courts and the UCMJ. Part VI, explores integration of TJ and the UCMJ. Part VII, analyzes legislative reform and proposed resolutions Part VIII, conclude this analysis by summarizing the main reasons why the UCMJ would benefit from a more therapeutic approach. However, this paper addresses another fundamental problem and that is illustration of the current structure of constitutional challenges.
Article I of the Constitution empowers Congress to ‘make Rules
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