The Science of Rights

Front matter

The

Science of Rights

Grundlage des Naturrechts nach Principien der Wissenschaftslehre -

Preface

FICHTE'S system of philosophy is pre-eminently a philosophy of the free will. Free will is certainly not an object of external perception, but rather of introspection. When we look outwardly, and behold things and events in time and space, we contemplate each thing limited on all sides by other things; each event limited before and after by other events. Such limitation, according to the philosophy of Kant and Fichte, belongs to the category of quality. This category includes affirmation, negation, and limitation: affirmation of the thing or event; negation of it by others which we perceive to exclude it; limitation of the thing or event by others and their limitation by it. This gives reciprocity for the third subcategory of quality. In the "Science of Knowledge" Fichte deduces these three immediate categories of consciousness: the ego, the non-ego, and the mutual limitation of the ego and non-ego. He thus finds the category of quality as the first and most direct form of consciousness. This category of quality considers all manner of objects always under the condition of being limited from outside.

People do most of their conscious thinking in the category of quality, and consequently find all thoughts that do not fit that category "unthinkable." This is the supreme category with "agnostics." But all people do a great deal of thinking in the other great category of the Mind—the category of Freedom, variously called self-activity and self-determination. While quality or mutual limitation is the general form of sense-perception and the understanding, the category of self-activity (called by Spinoza causa sui), or freedom, is the basis of the three great realms of thought that are accounted supreme in human life—the realms of rights and morals, of art and literature, and of the revelation of the divine. The realm of rights and morals concerns the good, a subcategory under the idea of self-activity, and itself including many subordinate categories, like justice, virtue, duty, obedience to the authority of institutions, &. These categories can have no significance in regard to inanimate things and none in regard to living beings which have not developed self-activity to the point of freedom and responsibility.

The realm of art and literature is governed by the category of the beautiful, another sub-category of freedom. For the beautiful is the manifestation of free personality, and the epochs of art take rank in accordance with the adequacy of their manifestation of this attribute. Homer taught the world how to recognize freedom under all phases of nature; the essence of the poetic is trope and personification. It indicates a view of nature that refuses to see mechanical forces, but insists that all movement is free and personal. Modern poetry still imitates Homer, and modern art ornaments all things by decking them out with shapes that seem to realize inward purposes. Thus the real intention (of usefulness for man) is concealed by the appearance of freedom. The ornamented utensil looks as though it assumed its form for its own use and not for the sake of usefulness to others.

The realm of religion, finally, implies the same fundamental category of free personality as all in all. For it looks upon all things as creations of an absolute Person who has made all things for the sake of the manifestation of His infinite freedom.

This category of self-activity is the fundamental form of our inward sense—i.e., of introspection—just as quality is the form of our external sense—i.e., sense-perception. Quality is the form of fate, and its insight sees that all things are what they are because the totality of conditions has necessitated them to be so. The category of self-activity is the form of freedom, and its insight sees that the supreme condition of everything is freedom, and that there is no fate except as secondary or derivative from freedom. In other words, the ultimate motive power in all force is will.

Fichte's system of philosophy sets out from the category of quality and proceeds towards the category of freedom, demonstrating at every step that self-activity is the foundation of the qualitative and showing how the qualitative comes to arise from the self-active. Being or existence is not a sort of quiescent substrate underlying all manner of activity, but the very substance of being itself is pure activity. Having shown how the appearance of being and the qualitative arises in the mind through the process of self-activity, Fichte has completed his theory of the intellect and arrived at the beginning of his theory of the will. He calls this the Practical Part of the Science of Knowledge. It is this Practical Part of the Science of Knowledge which furnishes the standpoint of the present work.

The one supreme fact in the universe, from Fichte's point of view, is the free will. To discuss this idea in its relation to civil society and the State, both of which institutions arise from the recognition of freedom as the most sacred object in the secular world, is the object of the book before us—"The Science of Rights," or of jurisprudence.

Mr. Kroeger, the translator, says in regard to it: "The Science of Knowledge having been established as the science of all sciences, Fichte, soon after its discovery and publication, deemed it advisable to illustrate by an example in what manner other sciences take their starting point from it, and apply the form which it prescribes for all sciences. Intensely interested in the political state of affairs in Europe, he naturally hit upon the Science of Rights, or of Law generally, as the science which it would be most congenial for him to treat; and this preference was strengthened by the reflection that the deduction of the principle of law would involve a circumstantial deduction of the principle of individuality—an extremely difficult and important point in the science of knowledge. . . What our law-books and political treatises lack, the a priori deduction of our fundamental principle of government and law from the conception of reason as reason (or from the ego), Fichte's Science of Rights supplies."

The present work is a translation of Fichte's first sketch of the Philosophy of Rights which appeared in 1796 under the title: "Grundlage des Naturrechts nach Principien der Wissenschaftslehre von Johann Gottlieb Fichte. Jena and Leipzig."

It seems that Kant published a little later in the same year a work on the Science of Right (Rechtslehre), as the first part of his Metaphysic of Morals. (An English translation of Kant's work, by W. Hastie, B.D., 1887, is published by T. & T. Clark, of Edinburgh).

There is an essential agreement between the two works. Fichte held substantially the Kantian doctrine. The two works deserve the careful study of all who wish to see the profound rational principles that exist in the complex of usages and compromises that have grown into our system of law. Hegel wrote his first sketch of a Philosophy of Rights in 1802-3, and published a more elaborate work in 1821. These three works respectively by the three greatest thinkers in modern times furnish a great storehouse of ideas on the subject of jurisprudence and the constitutional framework of States. As a sample, one may refer to Kant's discussion of the three great fundamental powers into which the government is divided, and especially their co-ordination (see pp. 165-173 of Hastie's translation), as a treatment that cannot fail to be of great interest to Englishmen and to all peoples derivative from England. To the English nation belongs the great honour of having invented local self-government and the complete co-ordination of the three departments of government the executive, the judiciary, and the legislative. In Great Britain this constitution grew as a natural growth. In English colonies its essential principles are in process of being reformulated with great success.

In the present active state of the public mind on questions of the ownership of property and the socialistic reorganization of society, it is necessary to appeal to reason rather than to tradition, and show the rationale of the institutions that have come down to us from our forefathers. It has become essential to know what this or that right brings with it—what coheres with the ownership of land, what with the use of money, or the right of taxation, or of the ballot. The system is so complex and the interdependences are so subtle that if one link is thrust out there follow entirely unexpected results in apparently disconnected spheres of rights. The reflections of a Kant, a Fichte, or a Hegel will doubtless provoke dissent in the reader's mind. But they will already have served a good purpose when they have been the occasion for so much study as dissent implies. There is one thing that their study will surely produce. This is the conviction that the progress of the world moves from the consolidation of the three powers of government in one person to the co-ordination of those powers in separate departments; from the constitutional forms in which one type prevails (as that of the family prevails in the patriarchal government of China) to the form in which the family, civil society, the State, and the Church are independent and complete in their functions without usurping the functions of one another. This will destroy the illusion of socialism, which wishes the State to absorb civil society, as well as the illusion of the "Nihilist," who wishes civil society to absorb the State.

W. T. HARRIS.

CONCORD, MASSACHUSETTS, 1888.

Introduction

I.

HOW A REAL PHILOSOPHICAL SCIENCE IS DISTINGUISHED FROM A MERE FORMULAR PHILOSOPHY.

THE character of Reason consists in this, that the acting and the object of the acting are one and the same; and this description completely exhausts the sphere of Reason. Use of language has designated this sublime conception for those who are able to think it, that is, for those who are able to abstract from their own Ego, by the word Ego. Hence, Reason generally has been characterized as Egohood. Whatsoever exists for a rational being exists in it; but nothing is in it except by virtue of an acting upon itself; what it contemplates it contemplates in itself, but there is nothing to be contemplated in it but its acting; and the Ego itself is nothing but an acting upon itself. To enter into explanations about this matter is not worth while. This insight is the exclusive condition of all philosophizing; and unless a person has attained this insight, he is not yet ripe for philosophy. And, indeed, all true philosophers have philosophized from this stand-point; only without being clearly conscious of it.

This inner acting of the rational being occurs either necessarily or through freedom.

The rational being is simply in so far as it posits itself as being; that is, in so far as it is self-conscious. All Being, that of the Ego as well as that of the Non-Ego, is a determined modification of consciousness; and without consciousness there is no Being. Whosoever assumes the latter assumes a substrate of the Ego, which is to be an Ego without being such, and thus contradicts himself. Hence, only those are necessary acts which result from the conception of the rational being, or through which the possibility of self-consciousness is conditioned; but these acts are most certainly all necessary, and result as certainly as there is a rational being. The rational being necessarily posits itself; hence, it necessarily does also all that may belong to this act of positing itself through itself.

The rational being in acting does not become conscious of its acting, since itself is its acting, and nothing more; but that whereof we are conscious is assumed to be external to consciousness, and hence external to the acting—it is the object of the acting. The Ego becomes conscious only of that which arises for it in and through this acting; and that which thus arises is the object of consciousness, or the thing. No other sort of thing exists for a rational being; and since we can speak of a thing and of being only in their relation to a rational being, no other sort of thing exists at all. Whosoever speaks of another thing does not know what he says.

That which arises in a necessary acting of the Ego, but whereof the Ego does not become conscious, from the reason adduced, itself appears as necessary; that is, in representing it the Ego feels itself not free. Hence, objects are said to have Reality. The criterion of all reality is the feeling of being forced to represent something in the manner in which it is represented. The ground of this necessity we have seen; if the rational being is to be as such, it must act in this necessary manner. Hence, the expression of our conviction of the reality of a thing is this: as true as I live, or as true as I am.

If the object has its ground solely in the acting of the Ego, and is completely determined through the Ego alone, it follows that, if there be distinctions amongst the objects, these their distinctions can arise only through different modes of acting on the part of the Ego. Every object became for the Ego determined in this particular manner, in which it is determined, simply because the Ego acted in the manner in which it did act; but that the Ego did so act was necessary, for just such an act was one of the conditions of self-consciousness. By reflecting on the object, and distinguishing from it the mode of acting whereby it arises, this mode of acting becomes—since the object appears, as we have shown, as not the product of the free Ego—a mere comprehending, a mere taking hold of a given object. Hence, also, this mode of acting, whenever it occurs in the (described) abstraction, is called a comprehension, or a conception.

Only through a certain determined mode of acting does a certain determined object arise in us; but if this acting is necessary, then also this object surely arises. The conception (or comprehension) and its object are, therefore, never separated; nor can they be separated. The object is not without the comprehension, for it is through the comprehension; and the comprehension is not without the object, for it is that through which the object necessarily arises. Both are one and the same, viewed from different sides. If you view the act of the Ego as such, that is, in its form, then it is comprehension; but if you view the content of the act, the what is done—abstracting from the that is done—then it is an object. When one hears some Kantians speak about a priori conceptions, one would believe that they existed in the human mind in advance of all experience, like empty rows of shelves, waiting to have something put on them. What can such people take a conception to be, and what can have induced them to accept KANT'S doctrines thus interpreted?

We have said that, in advance of that which arises through an acting, the acting itself and the determined mode of acting can not be perceived. Hence, for the common man, and upon the standpoint of common consciousness, there are only objects and no conceptions; the comprehension vanishes in the object, and becomes one with it. The philosophical genius, that is, the talent to find in and during the acting not only that which arises in it, but also the acting itself, as such, and to unite these utterly opposite directions in one comprehension, thus to catch one's own mind in the act, as it were; this talent first discovered the conception in the object, and it was thus that a new field was added to the sphere of consciousness.

Those men of philosophical mind made known their discoveries. Nothing is easier than to produce with freedom, and under no necessity of thinking, every possible determination in our minds, and to cause our mind arbitrarily to act in every possible manner; but nothing is more difficult than to observe that mind as acting in real, that is, in necessary acting. The former mode of proceeding gives us conceptions without objects, or an empty thinking; and only in the second manner does the philosopher become the observer of an actual thinking of his mind. The former is an arbitrary repetition of the original modes of Reason's acting, after the necessity, which gave them significance and reality, has passed away; the latter alone is the true observation of reason in its modes of proceeding. From the former arises an empty, formular-philosophy, which considers itself as having done enough when it has proved that one may think any thing without being anxious concerning the object, that is, concerning the conditions of the necessity of this thinking. A real philosophy posits conception and object together, and never treats one without the other. To introduce such a real philosophy, and to abolish all merely formal philosophy, was the object of KANT'S writings. I can not say whether this his object has as yet been observed by but one philosophical author. But I can say this, that the misunderstanding of that system has shown itself in a two-fold manner: firstly, through the so-called Kantians in this, that they also conceived KANT'S system to be such an empty formular-philosophy, and held the difference to be only that it was the former one reversed; and hence they continued to philosophize in the same empty manner, as had always been done before only from an opposite side; and secondly, through some sharp-sighted skeptics, who saw clearly enough where philosophy was at fault, but who did not see that KANT had remedied this fault. Mere formal thinking has been indescribably injurious in philosophy, in mathematics, in the natural Sciences, and indeed in all pure Sciences.

II.

WHAT THE PROBLEM OF THE SCIENCE OF RIGHTS, AS A REAL PHILOSOPHICAL SCIENCE, WILL BE.

To say, therefore, a certain determined conception is originally contained through and in Reason, can only signify: a rational being, as sure as it is such, acts in a determined manner. The philosopher has to show of this determined act, first, that it is a condition of self-consciousness, and this furnishes the deduction thereof; but he has also to describe this determined act as well in regard, secondly, to its form, to the manner of acting in it, as, thirdly, in regard to its content, to that which arises in this act for the reflection. He thus furnishes at the same time the proof of the necessity of this conception, determines it, and shows its application. None of these parts can be separated from the others, without wrongly treating even these separates, and without falling into formal philosophy. The conception of Rights is assumed to be an original conception of Reason; it must, therefore, be treated in the above manner.

1. Now, in regard to this conception of Rights, it results—as we shall hereafter show in its deduction—that this conception becomes a necessary condition of self-consciousness, because a rational being can not self-consciously posit itself as such, without positing itself as an individual, or as one of many rational beings, which many it assumes outside of it by assuming itself.

2. What the manner of acting in the positing of the conception of Rights is, can be even sensuously represented. I posit myself as rational, that is, as free. In doing so I have the representation of freedom. In the same undivided act I posit other free beings. Hence, I describe through my power of imagination a sphere of freedom, which these many separate beings divide amongst themselves. I do not ascribe to myself all the freedom which I have posited, because I must also posit other free beings, and must ascribe part of it to them. Thus, in appropriating freedom to myself, I at the same time restrict myself, by leaving freedom to others. The conception of Rights is, therefore, the conception of the necessary relation of free beings to each other.

3. Finally, as regards the content of the conception of Rights. The conception of freedom involves originally only the power, through absolute spontaneity, to form conceptions of our possible causality; and it is only this power which rational beings necessarily ascribe to each other. But that a rational individual, or a person, should find himself to be free requires something more, namely, that a result in the external world should follow the thinking of his activity, or that he should perceive the effect of his free causality.

Now, if the causalities of rational beings should work upon the same world, and should thus be able to influence, check, and oppose each other, as is indeed the case, then freedom—in the latter signification of the word—would be possible for persons who stand under this reciprocal influence, only on condition that all of them restrict their causality within certain limits, and divide the world, as it were, amongst them. But since they are posited as free, such a limit to their freedom could not lie beyond freedom—since then the limit would cancel, but not restrict it as freedom; but must rather be freely posited by all; in other words, all must have made it their rule, not to disturb the freedom of those with whom they are placed under reciprocal influence.

And thus we have the whole object of the conception of Rights, namely, a community between free Beings as such. It is necessary that every free being should assume other free beings as existing; but it is not necessary that all these free beings, as free beings, should coexist together; the thought of such a community and its realization are, therefore, altogether arbitrary. But when it is thought, through what conception or determined mode of acting is it thought? It appears that it is possible in thought to have every member of this community so restrict his own external freedom through inner freedom as to make it possible that all other members shall also be free. Now, this is the conception of Rights.—If this conception is thought as a practical conception—because the thought as well as the realization of such a community is arbitrary—then it is purely of a technical-practical character; that is to say, the conception of Rights does not demand that such a community be erected, but merely demands that, if it be erected, it shall be established on the basis of the conception of Rights.

In all this our representation of the conception of Rights we have refrained from expressly refuting those who attempt to deduce the conception of Rights from the Moral Law, because, as soon as the true deduction of that conception has been established, every impartial mind will accept it as the true one without demanding that the incorrectness of other deductions be shown up. But for partisans and narrow-minded disputants, it would be lost time to write. The rule of law, Restrict your freedom through the conception of the freedom of all other persons with whom you come in contact! receives, it is true, a new sanction for conscience through the Moral Law; but the deduction of this sanction forms a part of the Science of Morality, and does not belong to the Science of Rights. It might be said that many learned men, who have written systems of natural law, have treated in them without knowing it that very part of the Science of Morality, had they not forgotten to state why obedience to the Moral Law always conditions absolute inner harmony of the rational Being. Indeed, most teachers of morality seem not to have considered that the Moral Law is purely formal, and hence empty; and that a content for it must not be surreptitiously obtained elsewhere, but must be thoroughly deduced. We can state at once how the matter stands in our case. I must necessarily think myself in contact with the men nature has placed me amongst, but this I can not do without thinking my freedom as restricted by their freedom, and hence I must act in accordance with this necessary thinking, or my thinking and my acting are in contradiction, and I am not in that absolute harmony with myself which constitutes morality. I am, therefore, bound in conscience, through my knowledge of what shall be, to restrict my freedom; or, in other words, morally bound to respect the conception of Rights. Now, it is this moral aspect of the question which belongs to the Science of Morality, and not to the Science of Rights; in the latter science men are bound only by their arbitrary resolution to live in community with others; and if any one is not willing to restrict his arbitrariness at all, the Science of Rights has nothing to say to him other than this: that he must, in that case, remove from all human society.

In the present work the conception of Rights, as the condition of self-consciousness, is deduced at the same time with its object; it is derived, determined, and secured in its application, as should be done by a real science. This has been done in the first, second, and third books of our science. It is then further determined in the second part, and the manner stated, in which it must be realized in the sensuous world.

III.

CONCERNING THE RELATION OF THE PRESENT THEORY OF RIGHTS TO KANT'S SCIENCE.

With the exception of some excellent suggestions in recent writings by Mr. EHRHARDT and Mr. MAIMON, the writer of this had discovered no trace of a distrust in the manner in which the Science of Rights had been heretofore treated, until—after the completion of the present work—he was most agreeably surprised by KANT'S important work, A Perennial Peace.

A comparison of KANT'S doctrines of Rights, as they appear from that work, and the principles of the present science may not be disagreeable to many readers.

It can not be clearly seen from KANT'S work, whether he deduces the conception of Rights, according to the usual method, from Morality, or whether he assumes another deduction. But some remarks (page 15) concerning the conception of a Law of Permission make it very probable that his deduction agrees with our own.

A Right is evidently something which one may use or not use, and is, therefore, the result of a pure Law of Permission; of a law which simply allows you rights, leaving you at liberty to use them or not as you please—a law, moreover, which, being restricted to a certain sphere, permits the conclusion, that beyond that sphere each one is left to his own free will. This permission does not lie expressly in the law, but is merely argued from the limitedness of the law. The limitedness of a law shows itself in this, that it is a conditioned law. Now, it is absolutely not comprehensible how from the unconditionally commanding and thus universal Law of Morality it were possible to derive a Law of Permission.

KANT'S assertions that the state of peace or of law amongst men is not a condition of nature, but of art; and that we have the right to compel persons, though they have not attacked us, to submit to the supremacy of government as the only security against future possible attacks from them; agree wholly with our science, and are deduced in our science in the same manner as in KANT'S work.

Our science also agrees with KANT'S work in its deduction of the principle, that a state government can be erected only on the basis of an original but necessary compact; and, furthermore, of the principle, that the people must not themselves exercise the executive power, but confer it, and that hence a Democracy, in the pure significance of the word, is an utterly unlawful form of government.

But I differ with KANT in his statement, that the division of legislative and executive power is sufficient to secure the maintenance of rights in a state. The chief points which I hold on this subject, and which are developed at length in the present work, I shall here state as concisely as possible.

The conception of Rights involves that when men are to live in a community, each must so restrict his freedom as to permit the coexistence of the freedom of all others. But it does not involve that this particular person, A, is to restrict his freedom by the freedom of those particular persons, B, C, and D. That it has happened so that I, A, must conform myself particularly to the freedom of these, B, C, and D, of all other men, is purely the result of my living together with them; and I so live with them, simply by my free-will, not because there is an obligation for me to do so. Thus it is originally within the free-will of every citizen, whether he chooses to live in this particular state or not—though he must live in some state, if he wants to live at all with other men. Now, as soon as he expresses the resolve to enter a particular state, and is accepted as a member of it, then he is, by this simple, natural declaration, subjected to all the restrictions which law prescribes for that state. By his mere statement, I will live in this state, he has adopted all its laws. The laws of the state become formally his laws by his resolve to live in the state; but, materially, they -have been determined without his consent by the conception of Rights and the position of the state. Again, the law, Restrict your freedom by the freedom of all others, is a purely formal law, and as such not capable of application. For how far is the sphere to extend, within which no one may hurt him, but beyond which, he may also not go, without being regarded as a disturber of the freedom of others? This the parties must arrange amongst themselves. Applying this to the state: each one, on entering the state, must arrange with the state what is to be his particular sphere of free activity, (his property and his civil rights.) When he has so arranged, by what has his sphere been determined? Evidently, by his own free resolve; for without it he would have had as much right to what the others possess as they have themselves. But how is it determined, how much can be allowed to each individual? Clearly, by the common will in accordance with the rule: This number of men are to be free in this particular sphere of general freedom, hence, each one has as his share so much.