New Haven and the Design of Laws under Therapeutic Jurisprudence

1. New Haven and the Design of Laws under Therapeutic Jurisprudence Prof. Dr. Siegfried Wiessner Panel on Legislative Scholarship, Design, Advocacy, and Outcomes 36th International Congress on Law and Mental Health Rome, Italy July 24, 2019

2. I urge that therapeutic jurisprudence should inform both the processes of policymaking and the design of public policy, trained on whether human dignity, psychological health, and well-being are advanced or diminished. • David C. Yamada, On anger, shock, fear, and trauma: therapeutic jurisprudence as a response to dignity denials in public policy, 63 Int’l J. Law & Psychiatry 35 (2019)

3. On the need for proper design of TJ-oriented prescriptions (laws, regulations, etc. – general and abstract rules and institutions): • David Wexler, New Wine in New Bottles: The need to sketch a therapeutic jurisprudence ‘code’ of proposed criminal processes and practices, 7 Arizona Summit L. Rev. 463 (2014)

4. Helpful Methodology: The New Haven School of Jurisprudence Starting-Point: Its Understanding of Law Law in Traditional Positivist Sense: Acommand of the sovereign backed up by sanctions -- static, acontextual, body of rules Law according to New Haven School: A process of authoritative and controlling decision in a given community -- dynamic, contextual, flow of decisions

5. Critical Comparison • The jurisprudence of positivism provides the counter-image to [New Haven’s] empirical, dynamic conception of law. Its common focus on "existing" rules, emanating solely from entities deemed equally "sovereign," does not properly reflect the reality of how law is made, applied and changed. Positivism remains fixated on the past, trying to reap from words laid down, irrespective of the context in which they were written, the solution to a problem that arises today or tomorrow in very different circumstances. Without identifying the conditioning factors of the past decisions they rely on--such as the personality, political inclinations, gender and cultural background of the decision makers, as well as the mood of the times, and other societal factors--positivists try hard, in an ultimately futile quest for "certainty" of law, to predict future decisions. But, as they do not take into account changing and changed contexts (e.g., different legislators, judges, shifts in public opinion), their predictions are unlikely to be precise; they may even be inaccurate. Moreover, positivists gain no help from their theory when asked what the law "should" be. Indeed, their theory eschews any creative or prescriptive function. • S. Wiessner & A. Willard, Policy-Oriented Jurisprudence and Human Rights Abuses in Internal Conflict: Toward a World Public Order of Human Dignity, 93 Am. J. Int’l L. 316-334 (1999)

6. In substance: the lawyer seems to need to have a realistic understanding of the nature of law • Relevance of our discussion: it seems that law deals with fundamental problems about relationships between human beings and their processes of communication in producing and distributing the good and the bad that life has to offer • To conclude: Law: a continuous process of problem-solving Proper Role of Lawyers as problem solvers: “doctors of the social order” Siegfried Wiessner, Doctors of the Social Order: Introduction to New Haven Methodology, in Handbook on Human Trafficking, Public Health and the Law 8-17 (Wilhelm Kirch et al. eds., Georg ThiemeVerlag, Stuttgart, New York, 2014) • Question: how can lawyers actually perform this function? What tools should they employ?

7. New Haven School Or Policy Oriented Jurisprudence (POJ) Or Law, Science and Policy An Interdisciplinary, Problem-Solving, Process Theory About the Law

8. Law = Process of Authoritative and Controlling Decision in a Given Community Legal Decision= Message with Policy Content(“You shall do this …” or “refrain from doing that …”) emanating from a person or persons with authorityin a given community (i.e. persons who the community expects to make legally binding decisions, such as legislators, judges, policemen) and showing control intent(i.e. backed up by the threat of severe deprivations in the case of non-compliance and/or high indulgences in the case of compliance)

9. Suggested Intellectual Framework: First: Clarification of Observer’s Standpoint vis-à-vis the Problem (Introspection) Then: Structure as follows: I. Delimitation of Problem • Conflicting Claims, Claimants, Identifications, Perspectives, Bases of Power, etc. • Past Trends in Decision and Conditioning Factors (predispositional and environmental) • Future Decisions in Light of Changed and Changing Conditioning Factors • Appraisal, Invention of Alternatives and Recommendation of Solution(s) in the Common Interest

10. Recommendation should be based on goal of approximating a public order of human dignity, i.e. maximization of access by all to the processes of shaping and sharing all things humans value, i.e. power, wealth, affection, well-being, enlightenment, skills, rectitude, and respect. Such solution reflects the common interest in the community under consideration. • “Human dignity” is defined as “shared power, enlightenment, wealth, well-being, skill, affection, respect and rectitude.”

11. The Eight Values of Human Dignity • The term “values” is used to designate the broad categories of events that gratify desire. In empirical terms, it signifies the things humans “value.” • They may be used in all relevant intellectual tasks. Analytically, they characterize the assets humans draw on in their efforts to achieve their goals (base values); preferentially, they relate to “preferred events” (scope values). Simply put, the concept of “base values” refers to the aggregate of assets people already have or have access to, whereas “scope values” refer to what people desire.

12. Individual Values (No Hierarchy!): • Power is the making of decisions important to the social context as a whole and enforceable against challengers when necessary by the use of severe sanctions. In domestic legal systems, institutions of power include government at all levels together with parties and pressure groups specialized to influence community decisions. • Enlightenment is the gathering and spreading of information, institutionalized in agencies of research and the information media.

13. Wealth is the production and distribution of goods and services, institutionalized in business corporations and partnerships, trade unions and consumers’ associations. • Well-being is opportunity for safety, health and comfort; relevant institutions include facilities for medical care and disease prevention. • Skill is opportunity to acquire and exercise excellence in a particular operation, including schools, artistic, vocational and professional organizations concerned with maintaining and improving standards of performance and taste.

14. Affectionis giving and receiving intimacy, friendship and loyalty, including the institutions of family and intimate friends plus associations established to express loyalty. • Respectis the recognition and reciprocal honoring of freedom of choice. Distinctive institutions provide recognition of common merit as a human being and particular merit as a member of a group. • Rectitude refers to responsibility for conduct. Its institutions formulate and apply standards of responsibility, and justify and celebrate these norms in religious, metaphysical or ethical terms.

15. To summarize the New Haven School: • Lasswell & McDougal devised a system for portraying the social process; understanding, shaping and using laws, other rules, and policies based on analyzing the whole context of the problem with the intention that legal solution would serve the goal of human dignity • Be aware of your and others’ observational standpoint: observer or actor? Whether you are the prosecutor or the defense lawyer, a scholar, a judge or a diplomat, a perpetrator of an offense or a victim, makes a difference in how you deal with a problem before you • Always start with a clear definition of the problem: “Who gets what?” Define such through communication with yourself: hear thoughts/ formulate them/ evaluate them/ answer them

16. Example • Application of New Haven School of Jurisprudence to the Global Problem of: • Trafficking in Human Beings • Following the model of: • Roza Pati, Trading in Humans: A New Haven Perspective, 20 Asia Pacific L. Rev. 135 (2012).

17. I. Delimitation of the Problem • Human trafficking, an egregious violation of human dignity: procuring, buying and selling of human beings into de facto enslavement • A hallmark activity of the dark underside of international commerce, generating an estimated $31 billion of profits annually for organized crime syndicates around the world • ILO: 12.3 million people in forced labor, bonded labor, forced child labor, sexual servitude --Other estimates: 4 million-27 million -- US records: 800,000 trafficked across international borders yearly, 80% of which are women; 50% minors • Fast-growing black market industry globally: no country immune from this criminal enterprise

18. Affecting communities across the board, on micro- & macro- level: countries of origin, transit or destination • Fountain of growth for organized crime • Challenge to the rule of law through perpetuating culture of corruption • Issue of safety, security and preservation of law of every nation involved or affected • Growing Supply: Feminization of Poverty, Conflicts, Natural Disasters, Effects of Globalization, Global Communications • Growing Demand (Prostitution, Adult-Entertainment Industry, Mail-Order Brides, Cheap Labor, Human Organs and Tissue Trade, etc.) • The controversy about how to address the problem: as a criminal law issue or a human rights issue

19. Non-exhaustive list of known forms of HT: • Compulsory labor: factories, plantations, farms, sweatshops, mines, tourist industry • Bonded labor: inherited or procured • Involuntary servitude; domestic servitude; forced marriages • Forced child labor; child soldiers; begging; drug transporters • Commercial sexual exploitation: street prostitution; escort services; adult entertainment; child pornography(?) • Organ harvest and organ transplant

20. Based on the above definition of the problem, the consequence is a ruptured public order • What next? – Analyze the response to the problem in the past and in the future • With what goal?—“protection, restoration and improvement of public order” (W. Michael Reisman) • How?—through seven specific sanctioning goals…

21. Reisman’s specific sanctioning goals: • Preventing imminent discrete public order violations • Suspending current public order violations • Deterring, in general, potential future public order violations • Restoring public order after it has been violated • Correcting the behavior that generates public order violations • Rehabilitating victims who have suffered the brunt of public order violations • Reconstructing in a larger social sense to remove conditions that appear likely to generate public order violations All applicable at different stages of addressing the HT problem

22. II. Conflicting Claims, Claimants, Their Perspectives, Identifications & Bases of Power In micro- or macro-contexts, claimants could be: • Governments • NGOs / private sector entities • The Perpetrators: - Organized criminal groups - Traffickers, recruiters, fraudulent employers, “clients,” sex tourists, corrupt government officials, etc. - Men and women at all levels, exploiters or clients • The Victims: - All genders and ages: men, women, children - Vulnerable groups: migrant workers, internally displaced persons, refugees

23. III. Past Trends in Decision & Conditioning Factors(predispositional and environmental) • Global Decision-Making Arena: --UN Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children • Regional Model of Decision --Council of Europe Convention on Action Against Trafficking in Human Beings (2005) • Domestic Framework (the case of the U.S.) --The Trafficking Victim Protection Act (TVPA) 2000 Important: Differentiate between the law on the books and the law in action—what countries say and what they do (myth system and operational code)

24. UN Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children Protocol supplementing the United Nations Convention against Transnational Organized Crime (Entry into Force: 12/25/03) • Its HT definition determines the scope of application of the Protocol & the Convention to trafficking activities: prevention, investigation & prosecution of Protocol offences (3 Ps appr.) • Provides a common basis for criminalization of such activities, formulation of laws, i.e. offences and sanctions; drafting of procedures; but also: for support and assistance of victims • Offences will be “established in the domestic law of each State Party independently of the transnational nature or the involvement of an organized criminal group…” Art. 34 (2) Conv. • Elements of transnationality & organized crime only necessary for applicability of Conv. & Prot. between states parties

25. State must ratify the Convention in order to become a party to the Protocol: Conv. & Prot. must be interpreted together • States parties must legislate accordingly (Art. 5 Prot.) • Protocol establishes minimum standards (Art. 3 (a) Prot.) ---domestic legislation might want to cover additional activities-- broader in scope & more severe • Promotes a global approach: cooperation between states (Art. 2 Prot.) • Convention and Protocol facilitate investigation and prosecution of criminal activities across borders: • Specific extradition requirements (Art. 16 Conv.) • Mutual legal assistance, etc. (Art. 18 Conv.) • Substantive & procedural standards to harmonize legislation and eliminate differences

26. Globally Accepted Definition: Article 3 of Palermo Protocol (a) "Trafficking in persons” shall mean: • the action of “recruitment, transportation, transfer, harboring or receipt of persons, • by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, • for the purpose of exploitation. • Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labor or services, slavery or practices similar to slavery, servitude or the removal of organs;

27. Definition cont’d. (b) The consent of a victim of trafficking in persons … shall be irrelevant…where the above means have been used (c) When a child is involved, it will be considered “trafficking in persons” even if none of the above means are used (d) “Child” shall mean any person under eighteen years of age.

28. IV. Projection of Future Trends • In light of changed and changing conditioning factors, the intensity of anti-trafficking action has never been this high • Most likely: we will see concerted efforts of public-private partnerships to work towards ending modern-day slavery • But: progress will be very slow and following the same routine it has shown thus far

29. V. Appraisal & Recommendations Overall Strength: • Creation and Implementation of International Legal Framework as well as Domestic Legislation; Heightened Awareness Overall Weaknesses: • Primarily a criminal justice response: suppress the actions through crime and immigration control • Considered at most a transnational crime, not an international crime

30. Appraisal of Global Action to Address Human Trafficking

31. Academia • Overwhelmingly detached from this grave societal problem • Separate efforts here and there by individual faculty, but very few academic institutions have adequate programs, courses and plans for research and training, or engage generally in the struggle to combat human trafficking.

32. Governments: • Still confusion of smuggling and trafficking—this lack of distinction jeopardizes the proper fight against trafficking in persons • Lip service to the cause of trafficking by certain governments—anti-trafficking work considered more of a seminar and conference-oriented kind of work; real operational activity within the ministries of interior and law enforcement agencies is lacking • Enactment of legislation considered enough of an anti-trafficking effort

33. Over-emphasis on organizing and celebrating anti- trafficking events—rather than focusing on effective steps of implementation • Misperceptions of the importance of anti-trafficking work—in many countries the person in charge of trafficking does numerous other tasks as well—lack of specifically assigned and trained staff to address human trafficking • Dearth of allocation of resources—human and financial: for many governments human trafficking remains at the bottom of the list of priorities

34. NGOs • Struggling for funds, organizations are split amongst those flirting with governments and singing its praises for every little step forward, missing out on criticism of deficiencies of government action; and those who see governments’ work as negative, no matter what. Striking the balance here remains a challenge. • Organizations are situated and identified within the political spectrum—clearly, upon changes in the political leadership of a country, certain NGOs that were once the vanguard of anti-trafficking work, supported financially and in the spotlight, almost disappear, and others come to the surface.—This phenomenon does not allow for the consolidation of experience, damages the institutional memories of anti-trafficking work, and risks reinventing the wheel and bringing anti-trafficking work back to square one.

35. Misallocation of resources: not based on needs on the ground in respective countries. Donors follow their own agenda: “If we have this money for training—this is what we are offering to the NGOs” -- no matter that what these NGOs might need could be something else, such as office resources, personnel, shelters for survivors, and money to operate on day-to-day basis. • Lack of cooperation amongst NGOs themselves—they often see each other as competitor for funds/grants rather than as partners in this difficult struggle.

36. Lack of sharing of information amongst NGOs that could ensure the benefits of concerted efforts to combat trafficking • Lack of transparency about data. Misguided apprehension about what information can be shared and what cannot be shared—it is very hard to conduct proper research because many organizations are unwilling to share their pertinent data.

37. Generally: • Meager international cooperation on policy and enforcement levels amongst countries: mostly lip service paid to cooperation - reality is often delayed action and indifference • Pervasive corruption—some are getting wealthy for ignoring the problem or creating safe havens for traffickers • Corrupt or incapable justice systems, where the few of the traffickers that make it to court end up acquitted or simply fined, and walk out into the streets to continue their pernicious work

38. In some countries: elements of self-served justice create further chaos in the already complicated arena of combatting illicit conduct • Media working in anti-trafficking campaigns—they often hit the issue for a short time and then keep silent for long • Most importantly: root causes not addressed—governments and inter-governmental institutions are to be blamed equally

39. Recommendations 1. Start by calling a spade a spade: human trafficking is a “contemporary form of slavery”—an international crime that should trigger universal jurisdiction --Slavery interpreted, in Kunarac, as encompassing any or all features attached to the right of ownership -- situations of absolute control of one person over another induced through force, fear or coercion – the paradigm of human trafficking --ICC Statute, Art. 7 (1/c) defines “enslavement” as a crime against humanity --Regionally, ECtHR, in Rantsev decision on Art. 4 ECHR (right to be free from slavery), endorses this enlarged definition and formulated novel and specific state duties vis-à-vis human trafficking

40. 2. Focus on all seven fundamental sanctioning goals, paying due regard specifically to two of such goals, often underrepresented in the anti-trafficking effort: --correcting the behavior that generates trafficking by addressing the demand side --reconstructing the society in a way that removes the conditions that generate trafficking on the supply side by addressing the root causes of human trafficking 3. Adopt a human rights approach that goes to states’ obligations to respect, protect and ensure human rights and human dignity

41. Conclusions • New Haven Jurisprudence is not only highly compatible with the goals of TJ, it complements it effectively. It helps not only in the application, but the design of the law -- creating the “bottles” into which TJ “wine” is to be filled • Commonalities: • Starting point: Law should serve human beings, not the other way ‘round. Function of lawyers, in teamwork with experts of other disciplines: diagnostic and therapeutic. In the design phase: doctors of the social order

42. All areas of law should be subject to this human-centered interdisciplinary analysis and devising of solutions, from mental health law to the law between nations. • Goal of an order of human dignity should be the flourishing of individual human beings in social context, defined by maximizing access by all to all things humans value.

43. At this time in history, such common focus on the concrete needs and aspirations of human beings, in particular, the vulnerable, is ever more needed. • Across often encrusted institutional divisions, the goal of an order respecting and fostering human dignity unites both TJ and New Haven and should inspire fruitful cooperation.

44. Go out and fix the world. There will never be a better day!