Authored By: Dhruv Singh
National Law School of India University, Bangalore
INTRODUCTION
Imagine a judge sitting on his seat, about to deliver a sentence for a grave crime. The judgment is in, the environment is tense, and the law is lucid. But what if, before delivering a judgment, the judge tends to have a feeling that might change everything, what if the perpetrator was in an inevitable situation? Did he not have any choice? Not in a literal thriller plot, but in a core philosophical sense – that everything the defendant ever did was already fixed beforehand, even before his birth, shaped by the brain chemistry, poverty faced during upbringing, trauma and a million other reasons having their roots way back from the start itself. If that were true, what would be the point of them being incarcerated?
That is not a standalone speculation. It is the real and staunch challenge that the philosophy of determinism poses to criminal justice. Determinism, in its real form, is the idea that every event in the universe – including every human thought, feeling, and action – is the predetermined and inevitable result of what came before it. The universe in this form is a giant chain of cause and effect, and human beings are part of it, not an ostracised entity. We do not choose our genes. We do not choose the households in which we are being nurtured. We do not choose the neurological patterns etched into our brains by early exposure. If all of that creates who we are and what we do, then the concept of legitimate, uncaused free causes starts to look very shaky indeed.
When taking a glance through the lens of philosophical determinism, contemporary criminal law begins to look wholly different, as many of its core principles – from culpability and proportionate punishment to revenge itself – are considered on the belief that individuals act without any external pressure and could have chosen otherwise. If that assumption is not accepted, punishment shifts away from blame and moral desert toward determining the reasons for criminal behaviour and preventing future harm. This article presents an argument that accepting determinism would require a structural rejigging of sentencing, replacing retributive models with a more mannered and rehabilitative way, while also examining its reasons, criticisms, and comparative development across jurisdictions.
- THE EXISTING LEGAL FRAMEWORK: THE FREE WILL THAT NOBODY MENTIONS
1.1 Guilty Minds and the Hidden Assumption Criminal law does not portray its philosophical commitments openly. Statutes do not begin by declaring the nature of human agency. But the free will assumption is still there, imbarked into the fabric of the law at every stage. Consider the most naïve building block of criminal liability: mens rea, or the guilty mind. To be turned in for a grave crime, a defendant must not only have the forbidden thing but must have done it intentionally, knowingly, callously or at least negligently. The reason for this necessity is not a technicity. It portrays a deep moral intuition that punishment is only suited when a person has made a legitimate choice to do wrong.
The same rationale runs through the defences and exceptions that every legal system considers. The insanity defence, established in English law by the M’Naghten rules dating back to 1843, states that a person who, due to mental illness, did not discern what they were doing or did not know it was illegal cannot be held criminally responsible. Why? Because without having a broader view comes the absence of genuine choice, and without legitimate choice, the moral justifications for punishment evaporate. The same reasoning has diminished responsibility, coercion, and automanism. These are not accidental exceptions. They are the law’s acknowledgement that full criminal liability needs a whole functional capacity for pressure-free decision making. Indian criminal law mirrors the same principle in Section 84 of the Indian Penal Code, and so does the American Model Penal Code.
1.2 The Four Pillars of Sentencing and What They Assume
When it comes to punishment, legal systems are usually based on four prominent justifications: retribution, deterrence, rehabilitation, and incapacitation. Each one has its own back-channelling of logic, and each responds very differently to the difficulty of determinism.
Vengeance is the oldest and, in many ways, the most prominent of the four. It says, simply, that wrongdoers have to be punished. It is not wholly about shielding future crime or changing the nature of the offender. It is about justice as a kind of moral accounting – the idea that when someone does something gravely wrong, the right reply is to make them pay for it, not as a defence or a treatment, but because they earned it through their own free will. This is the rationality that drives proportionality: a more grave crime deserves a tougher sentence. It is the engine behind obligatory minimums, sentencing procedures, and the concept of the tariff. In England and Wales, the Criminal Justice Act 2003 prescribes the exact same principle by requiring courts to treat the gravity of the offence as the basic factor in sentencing.
Deterrence requires a more evaluated approach. It is visionary, asking not what the offender deserves but what effect punishment is gonna have. General deterrence tries to dissuade everyone from offending by presenting that crime carries a higher cost. Specific deterrence tries to persuade the individual offender not to reoffend. Neither of these requires voluntary choice in a strong manner, though they do assume that people can reciprocate to incentives and rejig their demeanour in the anticipation of consequences. Rehabilitation goes deep in researching that criminal behaviour often has discernible causes – trauma, addiction, mental ailment, social absence – that can prominently be noticed. Incapacitation is the most candid: it easily discards the offender from circulation to shield the public, asking no philosophical questions at all. Of all four rationales, rehabilitation and incapacitation are the most bluntly compatible with a determinist perspective.
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HOW DETERMINISM WOULD TRANSFORM SENTENCING
2.1 The End of Deserved Punishment
If there is something that philosophical determinism does with staunch lucidity, it removes the foundation or support of retributive punishment. The entire moral barring of vengeance rests on the idea that the offender, at the moment of executing the crime, was legitimately free to do otherwise and chose not to. They had other choices available to them, and they chose the wrong one. That is why they deserve to suffer. But determinism says this picture is a piece of fiction. The offender’s choice was not of his own free will in any ultimate sense. It was the result of a nervous system crafted by genetics and experience, responding to a situation shaped by social and economic powers, producing a result that was, in principle, firm from the outset.
The neuroscientist Robert Sapolsky has made this case with striking force in his recent book, Determined (2023), arguing that every human action, including every criminal act, can be wholly explained by previous biological and environmental causes. The brain that pulls the trigger, or swings the first, or falsifies the moment was built by forces wholly outside the individual’s control. In this situation, blaming a person for their crime is no more legitimate than pointing a finger at someone for having a genetic predisposition to heart disease. It may give a feeling of satisfaction, but it does not pass the philosophical backcheck.
For criminal law, this matters largely. If retribution falls away, so does proportionality as a guiding way. The query of what a defendant deserves, which contemporarily organises sentencing guidelines, tariff calculations, and appeals against large sentences, goes in vain. The seriousness of a sentence would no longer be calibrated to moral guilt. Instead, it would be stuck to something else entirely: the nature of the risk the offender does have, the intensity of interventing requires to address the causes of their behaviour, and the likelihood of foreseen harm. This is a fundamentally different kind of calculation.
2.2 Culpability Becomes a Diagnostic Tool
One of the more subtle but prominent repercussions of a determinist approach would be the transformation of how courts think about culpability. At present, the law considers culpability as a measure of moral blameworthiness. A premeditated murder is more culpable than a killing in the heat of passion, and portrays a greater moral fault. Mitigating factors – mental illness, addiction, a history of abuse – reduce the sentence because they lessen the offender’s moral responsibility.
Under a deterministic policy, all of this would be rejigged in a callow manner rather than moral terms. All illnesses would not reduce a person’s deserved punishment; they would simply be among the causally relevant factors that explain the behaviour and inform the actual response. A defendant who killed in the grip of an acute psychotic episode is not less blameworthy in a metaphysical sense, so much as they are a person whose behaviour had a specific, identifiable cause that calls for a special intervention. The shift sounds subtle, but it reorients the sentencing exercise: not close to moral judgment and toward something more like clinical assessment.
2.3 Rehabilitation Moves to Centre Stage.
With retribution displaced, rehabilitation would not just be a secondary consideration – something courts usually mention but rarely allow to override proportionality – it would become the primary target of any sentence. And this would require a legitimate rethinking of what sentences look like. Fixed-term prison sentences are proportional to the offence graveness would be staunch to justify on a wholly consequentialist basis if there is no evidence that they reduce reoffending more efficiently than alternatives. What would be just is a sentence structured to help the individual defendant evaluate the causes of their behaviour.
These points in the way of indeterminate or reviewable sentences are tied to rehabilitative progress rather than to the time allotted. A person charged with a grave offence might be detained until there is credible evidence that the peril they pose has been largely reduced – not for a attained time that reflects what someone has decided they deserve, but for as long as is required and no longer. This is a prominent departure from contemporary practice, but it is the logical conclusion of taking rehabilitation seriously as the main aim of sentencing.
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THE DANGERS: WHY THIS VISION IS NOT WITHOUT ITS PROBLEMS 3.1 The Risk of Indefinite Detention and the Loss of Rights
There is a reason that retribution-based sentencing, for all its philosophical challenges, has a charming appeal. A sentence based on what the offender deserves has a built-in time. Once they have been turned in for their time, they are free. A sentence based on risk assessment and rehabilitative need has no such natural terminus. If the only question is whether the person is competent enough to be released, then someone who is judged to remain in peril – perhaps because their risk factors are structural and hard to address – could stay detained with no timeline, long after any proportionate connection to the legit offence has dissolved.
A fully deterministic sentencing model would require addressing the risk honestly. Preventive detention without a proportionate connection to the original offence raises grave concern and queries under Article 5 of the European Convention on Human Rights, which shields the right to liberty. Courts have been lucid that detention must not become invaluable, and that the causal link between the original conviction and continued imprisonment must be held tight. A deterministic legislature would require building in robust procedural safeguards – regular review, access to rehabilitation, standalone oversight – to prevent the rational endpoint of purely risk-based detention from becoming an instrument of open-ended incarceration.
3.2 The Philosophical Pushback: Does Determinism Actually Change Anything?
Not all philosophers accept that determinism requires the abolition of moral obligation. Compatibilists – a huge and distinguished group that includes figures such as P.F Strawson and, more eagerly, Daniel Dennett – argue that free will and determinism are not really in clash. What matters for moral responsibility is not whether our choices are uncaused in some metaphysical sense, but whether we are the kind of beings who can reply to reasons, engage with moral norms, and adjust our behaviour in light of them. A person who acts from their own needs, values and reasoning processes is acting in free will in only the sense that matters really, even if those desires and processes were themselves shaped by prior causes.
There is also a deeply practical standpoint. Even if we accepted that human behaviour is wholly determined by prior causes, the science required to make that determination useful in individual sentencing cases is still largely limited. Risk assessment tools – the instruments that courts contemporarily use to estimate the chances of reoffending – are statistical in nature. They enlighten us about groups of people with the same characteristics, not about individuals. A tool that legitimately identifies sixty per cent of high-risk offenders still misclassifies forty per cent. Basing an individual’s liberty on such instruments, particularly where the chances are indefinite detention, raises important concerns about unbiased and accurate decisions.
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LEARNING FROM OTHER SYSTEMS: WHERE HAS THIS ALREADY HAPPENED? 4.1 The Nordic Approach: Less Blame, More Results
The most striking and shocking real-world evidence about what a more consequential sentencing philosophy has to be in practice comes from Scandinavia, and particularly from Norway. Norwegian criminal justice is not wholly grounded in philosophical determinism, but it operates on assumptions about human behaviour that are strikingly consistent with a determinist outlook. The focus is not only on punishment as deserved suffering but on rehabilitation and reintegration as the best way to protect a society. Prison conditions are designed to be as easy as possible, with education, therapy and meaningful work available to all inmates. The maximum sentence for most crimes is around twenty-one years.
The results are remarkable. Norway’s reoffending rate – around twenty per cent within two years of release – is among the least in the developed world. England and Wales, by comparison, see around half of all released prisoners reoffend within a year. The comparison is not easy. Norway has lower inequality, stronger social safety nets, and a smaller prison population to start with. But the direction of the evidence is consistent: treating criminal behaviour as a problem to be understood and reviewed, rather than a moral fumble to be criticised, at a glance, appears to produce better results for society.
4.2 The United States: Neuroscience Creeping Into the Courts
In the United States, the standard does not match that of Scandinavian sentencing reformers, but there are signs of a large shift in how neuroscientific evidence about human behaviour is being used in sentencing. The Supreme Court’s decisions in Roper v. Simmons (2005) and Graham v. Florida(2010) are the most lucid examples. In both scenarios, the court relied in part on neuroscientific research showing that the adolescent brain is not wholly developed in areas responsible for impulse control, long-term thinking, and risk assessment. Because young people’s decision-making capacities are, in a real sense, incomplete, the Court reasoned that they should not face the same level of punishment as adults. Capital punishment and mandatory life without parole were accordingly ruled unjustly for juvenile offenders.
CONCLUSION
This article has argued from the start that the acceptance of philosophical determinism by judges and legislators would require nothing less than a structural rethinking of criminal sentencing. The contemporary framework, with its emphasis on moral desert, proportionate punishment, and the guilty mind as the gateway to criminal liability, is built on assumptions about free will that determinism in a straightforward way challenges. If behaviour is fully caused by prior factors – biological, psychological, social, and situational – then the moral case for retributive punishment collapses, and what remains are largely consequential justifications grounded in prevention, rehabilitation, and risk management.
The transformation this would carry is not necessarily one to fear. A sentencing system that asks what causes criminal behaviour, rather than simply how badly the offender deserves to suffer, would be more realistic about what punishment can achieve and more likely to invest in interventions that largely reduce reoffending. The comparative evidence from Norway and the incremental neuroscientific turn in American jurisprudence all suggest that moving in this direction is not only philosophically strong but also practically beneficial.
But the perils are legitimate. Indefinitely detaining people on the basis of predicted upcoming events are dangerous without the anchor of proportionality to the original offence, is a way to injustice if not constrained by strong procedural safeguards. The science of individual risk prediction is still far too blunt an instrument to carry the weight that a fully determinist sentencing regime would place. And there is something prominent in the philosophical objection that holding people responsible is not just a theoretical mistake but a constitutive feature of how human beings relate to one another.
The most coherent conclusion is that determinism does not offer a complete way out for the contemporary system. What it offers is a corrective – a reason to be more sceptical of largely punitive sentences, more attentive to causal justifications of criminal behaviour, and more committed to rehabilitation as a legit primary aim rather than a rhetorical afterthought. The bench does not need to resolve every metaphysical debate about the nature of free will to take these lessons in a serious manner. It simply needs to ask, more often than it currently does, whether the sentence it is about to impose is likely to make things good – and if not, why it is being imposed at all.
BIBLIOGRAPHY AND REFERENCES
Primary Legal Sources
Criminal Justice Act 2003 (United Kingdom), c.44.
Indian Penal Code 1860, Act No. 45 of 1860 (India), s 84.
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Stafford v United Kingdom (2002) 35 EHRR 32.
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Roper v Simmons 543 US 551 (2005).
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Reports and Institutional Sources
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Ministry of Justice (UK), ‘Proven Reoffending Statistics: Quarterly Bulletin October 2021 to September 2022’ (2024).
