Determinism and the Future of Criminal Sentencing

If legislators and judges all accepted the philosophical theory of determinism, what would be the effect on criminal sentencing? 

Say a man stands before a criminal court in the United Kingdom, charged with theft. The evidence is clear: he knowingly took another’s property. Yet suppose further that every causative condition leading to his act—his upbringing, psychological disposition, neurological state, and immediate circumstances—rendered that act inevitable, such that, the act obtains in all possible worlds so he could not have done otherwise. The court nevertheless proceeds to sentence him, presupposing that he is culpable and that punishment is justly due. 

This is where the tension is born. Determinism, understood as the thesis that all human actions are causally necessitated by prior states, appears prima facie to undermine the very basis upon which such a judgment stands. For if the agent could not have acted otherwise, then it follows that his act is not properly voluntary, and if not voluntary, it is difficult to see how it can ground moral culpability or satisfy the classical definition of justice as rendering to each his due. This difficulty obtains in both naturalistic determinism, as advanced by materialist accounts that reduce human action to mere physical causation, and certain theistic determinisms—most notably within some strands associated with John Calvin—which construe divine causality in a manner that renders no room for genuine contingency in human willing. In both cases, the agent’s act is necessitated, and thus the notion of a “due” grounded in voluntary engagement ceases. The central question therefore arises, as upon what basis can justice, in any robust and universal sense, be maintained? 

This essay contends that the Thomistic account, as articulated with particular precision by Rev. Francisco Marín-Sola, offers a coherent resolution. Whereby a paradigm of determinism can preserve the very tenets needed to enact just and culpable decisions. 

Current Foundations of Sentencing

 The contemporary foundations of sentencing within our Western legal systems today still remain deeply indebted to old classical ideas, even where such foundations are no longer explicitly acknowledged. 

Dating back to Aristotelian and Thomistic philosophy, justice must consist of rendering each man his due. To put it in simpler terms, a person rightly receives what they’re owed in accordance with their actions. This understanding recounts back to antiquity which ultimately shaped how Anglo-European law developed.

 In the Summa Theologiae, Thomas Aquinas defines justice as “Iustitia est habitus secundum quem aliquis constanti et perpetua voluntate ius suum unicuique tribuit” meaning “Justice is a habit whereby a man renders to each one his due by a constant and perpetual will.” (Summa Theologiae II-II, Question 58, Article 1). Therefore locating the very locus of justice rightfully in granting each person what they deserve in alliance with the law. 

Such is also extracted in the English jurist William Blackstone’s Commentaries on the Laws of England (Book I, Section II p. 41), where he states: “This law of nature, being co-eval with mankind and dictated by God himself, is of course superior in obligation to any other… no human laws are of any validity if contrary to this.” He argued thus that the law of nature, born by God, transcends anything humans could even begin to write, and if human law dares to go against it, it becomes utterly worthless. 

The same principle obtains developed in the jurist A. V. Dicey who maintained that “No man is punishable or can lawfully be made to suffer in body or goods except for a distinct breach of law.” (Introduction to the Study of the Law of the Constitution, p. 188.) Modern legal systems therefore still proceed upon the assumption that human beings are morally responsible agents capable of deserving punishment.

 Concluding thus with Henri Grenier in Thomistic Philosophy Volume II: Moral Philosophy, particularly in his sections on voluntary acts and moral responsibility (p. 80–95). Grenier argues that an action is only considered a truly human act if it comes from full knowledge and willingness, only then can it be morally attributed to them. He states that “a human act is one proceeding from deliberate will,” He distinguishes these voluntary acts from things that happen automatically, physically, or involuntarily.

 Grenier buttresses that moral responsibility is contingent upon the fact that an individual person may only be held responsible for an action if they are the voluntary cause of it (p. 110–125). This is imperative in fathoming punishment, because someone doesn’t deserve punishment merely consequent to an event’s existence, but because the individual acted voluntarily and could have done otherwise, making punishment dependent not only on causation but also voluntariness and moral responsibility. 

These classical understandings form the metaphysical foundation of modern sentencing theory, including the four principal aims of punishment: retribution, deterrence, rehabilitation, and incapacitation. Each still depends greatly upon moral culpability and voluntary action. If determinism were to be accepted by the legal system and every human act dependent on prior conditions, then this truly beckons the question of which standards will our laws be held by? 

Counter argument and moderation 

There are several schools of thought concerning determinism and the idea of moral responsibility. I will be tackling 3 different approaches from three different schools: naturalistic determinism, Calvinist predestination, and Lutheran determinism.

The first position, predicated upon the likes of Paul-Henri Thiry d’Holbach, may be defined as naturalistic determinism, wherein all human acts are reduced to the necessitating influx of physical causes. Here, the human agent cannot be what is called a true causa secunda libera (a free secondary cause), but rather a sequential cog of material causality, determined therefore by antecedent conditions such as biology, physics, and randomised atomic dynamics. Metaphysically, the position entails the denial of real potency to opposites within the will. For if every act is necessitated ab extrinseco (from without) by prior physical states, then the will cannot possess an intrinsic principle of self-determination, and is wholly actualised by inferior causes. Consequently then, liberty is not merely constrained but eliminated formally, since the will cannot be said to move itself from potency to act.

 The second position, proposed by the Frenchman, Geneva’s chief minister, John Calvin was dogmatically consolidated at the controversial Synod of Dort in 1618. It [Dort] affirmed an absolute and efficacious divine decree, whereby all that comes to pass is ordained according to the divine will, including the election of some to salvation and the passing over of others. In its classical form, this doctrine asserts a twofold foundation: Unconditional election, which affirms a fiat not grounded in any foreseen merit or cooperation on the part of the agent. And, irresistible grace, which infallibly produces the salutary act in the elect. Now, philosophically, the difficulty does not lie per se in the affirmation of infallible divine causality, which Thomism likewise upholds, but in the mode whereby this causality is conceived. For in the Frenchman’s paradigm, the efficacy of grace appears to exclude, in actu primo (in first act), the real potency to resist at the moment of operation. The will, under efficacious grace, is not simply moved infallibly but also determined whereby the contrary act is not truly possible in that instant. Hence, liberty risks being reduced to a mere spontaneity consequent upon determination, rather than a faculty retaining a genuine ordination to opposites. 

The third position, derived from Martin Luther, especially in De Servo Arbitrio (On the Bondage of the Will, 1525), affirms that after the Fall, the human will is radically incapable of willing the good, unless moved by divine grace. Metaphysically considered then, this position posits a will that retains natural faculties, yet is morally necessitated in the order of salvation, since it cannot elicit a salutary act apart from grace, and thus lacks freedom with respect to supernatural good. If this incapacity implies that the will lacks any real potency to the contrary in its acts—even in the natural order—then liberty is again compromised at the level of faculty.

I must now present the final position of Thomistic determinism, the very position this essay will defend, governed by the account of Francisco Marín-Sola O.P., and will solve any difficulties the previous deterministic positions could not sufficiently explain. 

Thomists believe in a phenomenon known as physical promotion — a term coined by the Spanish Dominican friar Domingo Bañez amidst the De Auxiliis controversy of the sixteenth and seventeenth century. Unlike the previous schools in which I mentioned, this view doesn’t question gods' causality in an attempt to preserve human freedom nor does it remove freedom to preserve gods' causality. 

Now, this “premotion” (præmotio physica)may be defined as the real, ontologically prior (not temporally prior) divine influx by which God, as First Cause, reduces the created intellect and will from potency to act, so that the entire positive actuality of a concrete operation — including the last practical judgment and the elicited volition — exists only under His causality and is infallibly brought into act; it does not function as a separate intermediary motion, but as the very causal grounding of the act’s existence. "Omnis actus creatus dependet totaliter a motione Primae Causae quantum ad suam actualitatem" — "Every created act depends entirely upon the motion of the First Cause for its actuality" (Vol. 1,. pp. 90) In other words, no created act can move from potency into actuality independently, for all actuality must ultimately derive from the First Cause. 

Concurrently, this promotion therefore extends to everything that is positive in the act: its exercise, its intelligible structure, and its determination as a real instance of willing. However, it does not positively determine moral disorder; it is simply incapable of such. Here enters the notion of privation (privatio), is not an entity, property, or effect produced by God, but the absence of a perfection that ought to be present — namely, the lack of conformity of the act to right reason and divine law. Evil therefore possesses no positive ontological existence in itself, but exists rather as a deficiency within the created act. Marín-Sola consequently maintains that evil “non habet entitatem positivam sed privationem in actu creato” — “does not possess positive existence but rather a privation within the created act” (Vol. II,. pp. 175) Because the will is a finite power not identical with its rule, it can elicit an act under a practical judgment that, though fully caused by God in its being, fails in its conformity. Thus, the same divine premotion that infallibly actualises the will “as operative” produces a determinate act ‘in actu exercito’ (in the act as actually exercised or performed), whilst the moral specification as disordered arises from the will’s deficient mode of acting within that very act. The act therefore receives its existence and actuality from God, whilst the disorder within the act belongs properly to the creature. 

There is therefore no uncaused element, for the judgment, the choice, and the act all require and receive their actuality from God; yet the defect is not a positively caused feature, but a privation found in the creature’s finitude. In this way, Fr. Marín-Solà maintains both the universality and infallibility of divine causation and the full imputability of sin to the created agent, thereby preserving moral responsibility without collapsing liberty into mere causal necessity. 

Conclusion

In conclusion, the tension introduced at the beginning of this essay may now be resolved. Determinism, understood as the thesis that all human actions are causally necessitated by prior states, appeared prima facie to undermine the very basis upon which criminal sentencing stands. This essay first traced the basis onto which our current foundations for sentencing rest upon. 

This difficulty was then shown to obtain both within naturalistic determinism and certain theistic determinisms, wherein the agent’s act becomes necessitated and thus the notion of a “due” grounded in voluntary engagement ceases. However, the Thomistic account of Rev. Francisco Marín-Sola preserves both the universality of causation and the genuine voluntariness required for moral imputability. Consequently, the man standing before the criminal court charged with theft may still be justly punished.

Bibliography

Aquinas, Thomas. Summa Theologiae (c. 1265–1274). I–II, Q. 58, Art. 1. 

Blackstone, William. Commentaries on the Laws of England (1765–1769). Book I, Chapter II. Calvin, John. Institutes of the Christian Religion (1559). Book III, Chapters 21–24. 

Dicey, A. V. Introduction to the Study of the Law of the Constitution (1885). Part II. d’Holbach, Paul-Henri Thiry. The System of Nature (1770). Part I. 

Garrigou-Lagrange, Réginald. Reality: A Synthesis of Thomistic Thought (1950). Part I, Chapters 1–3. Grenier, Henri. Thomistic Philosophy, Volume II: Moral Philosophy (1948). Luther, Martin. De Servo Arbitrio (On the Bondage of the Will) (1525). 

Marín-Sola, Francisco. The Thomist Controversy and Molinism (1925). 

Feser, Edward. Philosophy of Mind (2006). 

Fernández, Vidal Fueyo. El P. Francisco Marín Sola, O.P. (1873–1932): Algunos rasgos de su fisonomía intelectual(1993). 

Synod of Dort (1618–1619) Encyclopaedia Britannica: https://www.britannica.com/event/Synod-of-Dort 

Congregatio de Auxiliis (1597–1607) New Advent Catholic Encyclopedia: https://www.newadvent.org/cathen/12144a.htm 

F. D. “Marín-Sola, Francisco.” New Catholic Encyclopedia (1967). : Encyclopedia.com – Marín-Sola, Francisco