4 - Fichte's “expiation contract”

Summary

It is well known that the liberal interpreters of Kant's concept of right (see Chapter 1) and Fichte share the same concept of right, even though they deduce it in fundamentally different ways: the reciprocal restriction of the external freedoms according to the universal law of equal rights. Nevertheless, Fichte develops a theory of penal law clearly incompatible with that of Kant. That is why I wish not simply to compare both of the theories in what follows, but rather – now that I have confronted Kant's theory of penal law with his concept of right in Chapters 2 and 3 – also now to compare Fichte's theory with the concept of right common to Kant and Fichte.

In Chapter 2, I have already criticized Kant's retributivism, and indeed both the classical interpretation of this retributivism as the sole justification of the existence of punishment and the newer interpretation of this retributivism as justification of the degree of punishment. In both interpretations, Kant's retributivism cannot be derived, or deduced, from his concept of right: moreover, his retributivism even contradicts his concept of right. That is why I will now, as a lead in, sketch with what rationales Fichte rejects Kantian retributivism as a justification of the degree of punishment, even though he defines the degree of punishment according to the criterion of talion law.