Saving Criminal Law from Determinism

March 24, 2013 § Leave a comment

The Problem

Assume for the sake of argument that a certain kind of determinism is true. The elements of folk psychology (e.g., intention, knowledge) are real and explain our actions. We are, however, not responsible for how we come to form our intentions. We are not the causal source of the intentions we form in our minds, but our intentions are the correct explanations of our actions. Something else explains the intentions we form, such as things that happened to us in our childhood that we are not responsible for. We are therefore not morally responsible for our actions.

This is usually thought to be a problem for criminal law. The idea is that the point of mens rea, specifically the mens rea of intention, is supposed to be moral responsibility. We only punish those who are morally responsible for their actions. If people are never morally responsible for their actions, we shouldn’t be punishing them. The whole criminal law loses its justification for punishment.

The Solution

The point of mens rea is not moral responsibility.

The point of the law generally and the criminal law more specifically is to prevent domination. A dominates B by some action (e.g., trespassing on B’s property) only if A does the action intentionally. It does not amount to domination if A does it by an excusable mistake thinking it is his own property. Thus the point of mens rea is not to only punish those who are morally responsible for their actions but to only punish those who do actions that dominate. It doesn’t matter then if determinism turns out to be true and A is not morally responsible for his intentional actions because his intentional actions will still dominate B and should therefore still be prohibited by the criminal law.


There is another kind of determinism that says that our folk psychology is wrong. That our intentions do not explain our actions. That our intentions are mere epiphenomena atop the actual causal explanations of our actions. The actual explanations are at the level of physics, or chemistry, or biology and our folk psychology is completely mistaken.

If this is the case there is no difference between an intentional action and a non-intentional one. In both cases the explanations those actions are the same (e.g., atoms striking atoms). So one couldn’t be domination while the other one isn’t.

If this kind of determinism is true, then this argument doesn’t save the criminal law.


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