Abstract
The paper reconstructs Fichte’s relational conception of human rights in the Foundations of Natural Right (1796/7) and brings it into conversation with the current debate on the philosophy of human rights. Fichte’s thus far underappreciated account is thereby made accessible, and its original and attractive philosophical features highlighted. I proceed in three steps. First, I argue that Fichte has a complex understanding of human rights. He defends ‘one true human right’ (das eigentliche Menschenrecht) to be part of a legal community in which two ‘original rights’ (Urrechte) are secured: a right to bodily inviolability and a proto-property right to secure access to a (sufficient) part of the world. Second, I show that, for Fichte, the substantive aim of original rights is to establish and secure a non-violent intersubjective relation called ‘free reciprocal efficacy’ (freie Wechselwirkung) which is normatively less demanding than a full relation of right and recognition in Fichte’s sense, or of justice. In this context, I unpack Fichte’s specific understanding of the human body (Leib) as a medium of free (reciprocal) efficacy rather than a biological entity in the original right to bodily inviolability. Third, I elaborate on the peculiar normative status of Fichtean human rights, in particular as non-positive and non-moral.
Introduction
The idea of human rights as rights one possesses simply in virtue of being human has been the object of ongoing criticism. In contrast to the ‘orthodox’ view that indeed regards human rights as rights one has qua human, so-called ‘political’ accounts hold that one has human rights only in virtue of the historically specific post-World War II regime of international law.1 A middle view is that human rights are indeed grounded in factual relations between persons (as the political view suggests), while these relations are regarded as less thickly and concretely determined (than the post-World War II regime of human rights) and in some sense essential to human life. For example, I take Derrick Darby to be advancing such a middle view when arguing that rights are ‘acquired by virtue of some form of social recognition’, explicitly including ‘informal and nonlegal forms of recognition’ (Darby 2009: 1, 86).2 Conversely, human rights are sometimes also viewed as enabling or fostering a specific type of social relation (Gould 2014, Müller 2017 on Rawls). The idea that social relations of recognition ground (human) rights and/or that these rights foster such relations is essential to what may be called a relational account of human rights. It is surprising that Johann Gottlieb Fichte is not mentioned by contemporary authors putting forward such an account, like Darby.3 Fichte introduced the concept of recognition into the Western philosophical tradition, and it is a crucial concept of his rights-centred political and legal philosophy developed in the Foundations of Natural Right According to the Principles of the Wissenschaftslehre (1796/7) [FNR]. Including a discussion of Fichte in the debates about relational accounts of human rights would not only make these historically more accurate, but also philosophically more fine-grained: A decisive feature of my interpretation of Fichte’s account of human rights is, in fact, that they are grounded in and have as their aim a social relation less demanding than a full relation of recognition (a relation of ‘free reciprocal efficacy’). Accordingly, with this article, I aim to make Fichte’s view accessible to the current debate on the philosophy of human rights.4
Moreover, the article contributes to the historical study of Fichte. Although Fichte’s practical philosophy of the Jena-Period (1794–99) has recently received a lot of scholarly attention,5 Fichte’s view on human rights specifically has not.6 In filling this gap, I offer original interpretations of two aspects of the FNR.7 First, I show that the meaning of the first original right to bodily inviolability depends on Fichte’s understanding of the human body as a Leib rather than a Körper in this context. Roughly, by Leib Fichte refers to the body as a medium of free action and by Körper to the body as a biological entity. Thus, he already employs a terminological distinction similar to the one attached to these two different German terms for body8 in later philosophical traditions, notably phenomenology.9 Second, I emphasise the thus far underappreciated difference between the less demanding intersubjective relation of ‘free reciprocal efficacy’ (freie Wechselwirkung) and a full relation of recognition, arguing that human rights only have the former as their goal.
The paper is divided into three parts. First, I show that Fichte holds a complex understanding of human rights. He defends ‘one true human right’ (das eigentliche Menschenrecht) to be part of a legal community in which ‘original rights’ (Urrechte) are secured. Although Fichte does not refer to them as such, I maintain that ‘original rights’ are human rights in a derivative sense: deserving them depends on nothing more than one’s humanity; they are rights one should have qua human. Accordingly, I do, like others,10 focus on ‘original right’ (Urrecht) to derive the substance of Fichtean human rights but offer a more thorough justification for this. Note that Fichte never uses the term ‘human right(s)’ (Menschenrecht, -rechte) in the chapter on original right, while using it in the 1793 texts and both appendices to the FNR (see below).
In the second and longest section, I defend the claim that, for Fichte, the substantive aim of human rights is to establish and secure a particular kind of non-violent relation called ‘free reciprocal efficacy’ (freie Wechselwirkung) [FRE].11 FRE constitutes a minimal form of cooperation (see Kosch 2021: esp. 233 and cf. Gottlieb 2020: esp. 119). Crucially, this relation is not a fully egalitarian or just relation. Since we are concerned with human rights, this seems adequate: we usually view them as minimal standards. Fichte also provides a (relational) justification of human rights which I will touch upon (section 3), but, unlike in previous scholarship (see esp. Clarke 2014), this it is not my focus. My argument in support of the claim that, for Fichte, human rights aim at establishing and securing FRE, refers to each of two ‘original rights’ in turn: the right to bodily inviolability and the right to secure access to a (sufficient) part of the world.
In the third section, I present my view about the exact normative status Fichte ascribes to human rights, especially in light of the following often cited remark:
The human being has actual rights only in community with others […]. An original right, therefore, is a mere fiction, but one that must necessarily be created for the sake of a science of right. (FNR: 102; GA, I.3: 403f.)
In short, my view is that by stating that an original right is a ‘fiction’ Fichte is not implying that the idea of human rights as rights one has qua human is mere ‘nonsense upon stilts’.12 Nevertheless, he does think that they are abstract and worthless without being institutionalised: Original rights ought to be realised in every rightful legal community but must be enforced and specified in particular contexts.13
1 A Complex Understanding of Human Rights
As I have mentioned, Fichte uses the term human right(s) (Menschenrecht(e)) in both appendices to the FNR. In the first appendix, ‘Outline of family right’, Fichte writes that ‘rape’ constitutes a ‘disregard for all human rights’ (FNR: 276; GA I,4: 107). For the purposes of this section, the occurrence in the second appendix on ‘the right of nations and cosmopolitan right’ is more relevant, and therein cosmopolitan right. There, Fichte introduces
one true human right that belongs to the human being as such [das eigentliche Menschenrecht, das dem Menschen, als Menschen, zukommt]: the right to be able to acquire rights (FNR: 333; GA, I.4: 163)
The context of this quote is that Fichte asks himself which – if any – rights someone who is not a citizen of any state has: ‘Is he therefore devoid of all rights, or does he indeed have any? Which rights, and on what basis?’ (ibid.)14 As we have seen, Fichte’s answer is that they have the right to acquire rights. Since Fichte also thinks that acquiring rights (through different types of contracts) is generally only possible within legal communities (FNR: 102; GA, I.3: 403f.), he is thereby postulating a right to be part of a legal community. Fichte’s one true human right, then, sounds a lot like Arendt’s famous ‘right to have rights’ (Mohr 2011: 377; Mohr 2012: 53; Neuhann 2020a: 257f.; Rothhaar 2015: 212; Picardi 2022: 116). Both may be called meta-rights.15 Note that Fichte’s is a prima facie meta-right which may be forfeited (FNR: 333f.; GA, I.3: 164).16
On my interpretation, original rights (Urrechte) are those rights to which one has a meta-right. Differently put, every human has the right to be part of a political entity that secures at least two original rights. Before I come to their content, it is crucial to understand their systematic position in the FNR.
The FNR is divided into two main parts and the two appendices I mentioned. The first part is subdivided into three main divisions (Hauptstücke) and the chapter on original right is the first one of the third main division called ‘Systematic application of the concept of right; or the doctrine of right’.17 Before this division, in the first main division, Fichte ‘deduced’ the concept of right and in the second he aimed to show that this concept is in principle applicable to the spatio-temporal world. I will come back to the first and second main division in section 2.
The concept of right expresses the normative idea that one should limit one’s own external freedom to enable others’ external freedom.18 If we keep the structure of the FNR in mind, we see that original rights are the first step in or the minimal condition for realising the concept of right in the world.
In relation to the meta-right, this means that it is not a right to membership in any legal community but a political entity that secures a minimum of rightfulness. This threshold is articulated by the two original rights:
(1) the right to the continued existence of the absolute freedom and inviolability of the body [des Leibes] (i.e. there should be absolutely nothing that exercises an immediate effect on the body);
(2) the right to the continued existence of our free influence with the entire sensible world. (GNR: 108; GA, I.3: 409)
I will provide a detailed interpretation of the content of these rights in section 2, referring to them as the right to bodily inviolability and the right to secure access to a (sufficient) part of the world. In that section, I will also argue why it is warranted to interpret the second right as aiming to secure access to a part of the world while, on the surface, this is contradictory to ‘entire sensible world’.
Besides introducing these two substantial original rights, Fichte also provides a more general depiction of ‘original right’ in relation to personhood:
This right, or these rights, are contained in the mere concept of the person as such and are therefore called original rights. (FNR: 87; GA, I.3: 390)
For Fichte, a person is defined as a ‘rational individual’ (vernünftiges Individuum), i.e. a ‘rational being’ that has posited itself as an individual (FNR: 53; GA, I.3: 361). This means that a person is someone with specified (individual) and therefore limited abilities to act in the empirical world (not merely potential and therefore unlimited possibilities).
The distinction between ‘human’ and ‘person’ provides a helpful way of expressing the relationship between the one true human right and original rights in Fichte: Every human has the right to become a person (cf. Mohr 2011: 371f.) – and therefore, in a derivative sense, every human also deserves those rights which are necessary for personhood (original rights). To be the subject of original rights, no particular feature besides humanity is necessary.19
A clarification regarding the minimal definition of human rights as rights one has qua human (which I presupposed above) in relation to ‘natural right’ is in order here. First, note, that this minimal definition corresponds to what Griffin sees as the secularised idea of natural rights from the 18th century: ‘The secularized notion that we are left with at the end of the Enlightenment is still our notion today […]. Its intension has not changed since then: a right that we have simply in virtue of being human.’ (Griffin 2013 [2008]: 1f.).20 Yet, Fichte does not think human rights are rooted in human nature, if by nature we mean ‘observable features of human beings and their behavior in relation to each other’ (James 2014: 354), e.g. their average amount of necessary caloric intake. If, however, we assume a broader notion, in which ‘human nature’ includes or essentially involves reason, then Fichte’s human rights are indeed based therein.21 In this context, it has been argued that it is more precise to refer to the FNR as a philosophy of ‘Vernunftrecht’ despite having ‘Natural Right [Naturrecht]’ in its title (Merle 2001: 1ff.).22
Human rights (in the sense of rights one has qua human) are also often referred to as moral rights. Since the entire FNR proceeds independently of morality (see fn. 7), this understanding also does not fit Fichte’s.23 I will briefly come back to the relation between right and morality in section 3.
In sum, Fichte holds a complex understanding of human rights by proclaiming a meta-right to original rights: a right to live in a political community in which at least original rights are secured. Although Fichte only explicitly refers to the meta-right as a human right, I contend that also original rights are part of his complex account of human rights (as rights one deserves qua human).24
2 The Goal of Human Rights: a Relation of ‘Free Reciprocal Efficacy’
In this section, I defend the claim that, for Fichte, original rights serve the goal of establishing and securing relations of ‘free reciprocal efficacy’. First, I lay out Fichte’s concept of FRE and its systematic position in the FNR. Then, I argue for each original right in turn that its goal is FRE.
2.1 FRE in the FNR
FRE is introduced in the second theorem (§3) of the first main division (§§1–4). As I have mentioned, the goal of the first main division is the deduction of the concept of right. For Fichte, this means showing that the concept of right is a condition of self-consciousness (FNR: 12; GA, I.3: 322). Recall that the concept of right refers to the normative idea that one ought to limit one’s own external freedom to a certain degree, to allow others to exercise their external freedom to a certain degree (again FNR: 10; GA, I.3: 320). While more could be said about the nature of this Fichtean deduction, for my purposes here a rough understanding suffices: Fichte aims to argue that somehow operating with the normative idea that the concept of right expresses is intrinsic to our nature as self-conscious beings. The association of this normative idea with the term Recht is not necessary (FNR: 50; GA, I.3: 359).
The deduction itself consists of three main argumentative steps called theorems (Lehrsätze). They are related to the argumentative goal of the deduction such that the first step introduces a condition of self-consciousness, the second constitutes a condition of the first condition and the third a condition of the second – and the third one is the concept of right.
In the first step, Fichte argues that ‘free efficacy’ is a condition of self- consciousness: the primary or original object of self-consciousness is our self in the practical mode of ‘willing’ or ‘acting’ rather than in the theoretical mode of ‘perceiving’ or ‘representing’ the world. I am, for example, freely efficacious when I decide to want to have a book on the left side of the desk and then move my body such that I bring about this state of affairs. In Fichte’s terms, this movement of my body vis-a-vis the objects of the book and table is free because it is based on a chosen ‘concept of an end [Zweck]’ (FNR: 20; GA, I.3: 331).25 In the example, my concept of an end is the state of affairs in which the book is at the left side of the table.
The second theorem goes on to state a condition of ascribing such individual free efficacy to oneself. Fichte writes: ‘The finite rational being cannot ascribe to itself a free efficacy in the sensible world without ascribing such efficacy to others, and thus without also presupposing the existence of other finite rational beings outside of itself’ (FNR: 29; GA, I.3: 340). Disregarding the complicated argument for this theorem here,26 I will focus on what its result amounts to. Fichte believes that to be a free being, one cannot be the only free being in the world. Furthermore, he thinks that some interaction must take place between free beings. Here the notion of ‘free reciprocal efficacy’ (FNR: 33; GA, I.3: 344) is introduced.
Two features of FRE are decisive: First, it is not a forceful relation. This entails, on the one hand, that participation in FRE is voluntary (Kosch 2021: 233). On the other, the way this interaction concretely works is also non-forceful, that is, in Fichte’s terms, it is mediated by concepts: ‘by means of concepts and in accordance with concepts’ (FNR: 38; GA, I.3: 348). Say I want to pass someone in the corridor non-forcefully, then I do not simply push the person out of my way but somehow communicate with them, in order to coordinate our paths. Second, the ends of others play some role in determining my own ends in this type of interaction:27 by coordinating our paths in the corridor, my initial goal of action – walking through the corridor on the left side – might have been slightly adapted to walking more in the middle, in order to leave space for the other person.
The third theorem argues that FRE is only possible if the relevant ‘finite rational being […] posit[s] itself as standing with those beings in a particular relation, called a relation of right’ (FNR: 39; GA, I.3: 349). In a relation of right [ROR] ‘I must in all cases recognize the free being outside me as a free being, i.e. I must limit my freedom through the concept of possibility of his freedom.’ (FNR: 49; GA, I.3: 358). Accordingly, for Fichte, ROR and the concept of recognition (which he introduced into the Western tradition) belong together. Note that ‘recognition’ does not appear in the text before the third theorem. I will not dwell on the exact relation of recognition and ROR; however, seeing recognition as the epistemic or normative component of ROR seems plausible to me (Kosch 2021: 229, in contrast: Gottlieb 2018: 190f.).
Regarding my claim that human rights aim at FRE but not full recognition or ROR, it is crucial to understand the difference between FRE and ROR. Two additional features turn FRE into ROR: normativity and equality. By normativity I mean that FRE may occur spontaneously but that in ROR the participants must have a certain security that the non-violent relation will persist:28
the postulated coexistence of the freedom of several beings [ROR] – and this obviously means enduring coexistence in accordance with a rule, not merely coexistence here and there by chance – is possible only insofar as each free being makes it a law for himself to limit his freedom through the concept of freedom of all others. (FNR: 85; GA, I.3: 389)
Second, it seems that, for Fichte, FRE is possible between quite unequal participants29 – disregarding their basic equality in terms of their capacity for free efficacy.30 In contrast, in the relation of right, a more substantial kind of equality, namely the equal freedom of all is relevant. Nevertheless, for Fichte, equality does not appear to be a value in itself. Rather, its value seems to derive from its stabilising function: an egalitarian distribution of freedom secures a certain threshold of freedom for all more sustainably than an inegalitarian one.31
Since both normativity and equality are instrumental to stability, ROR essentially consists in stable FRE over time.32
2.2 The Right to Bodily Inviolability
Recall Fichte’s formulation of the first original right to bodily inviolability:
(1) the right to the continued existence of the absolute freedom and inviolability of the body [des Leibes] (i.e. there should be absolutely nothing that exercises an immediate effect on the body)
Having said that I will argue that each original right has the aim of establishing and securing FRE, the more specific claim I will defend regarding the first original right is: The right to bodily inviolability aims to protect the body (Leib) that is able to partake in FRE.
I will pursue two argumentative strategies. The first is to look closely at the formulation of the right and one corresponding duty in Fichte’s The System of Ethics (1798) [SoE]. The second is to consider paragraphs §5 and §6 (fourth and fifth theorem) from the FNR where Fichte introduces the body. The distinction between the terms Leib and Körper provides evidence that Fichte means the same body in the first original right and in those sections. At the end of §5 Fichte writes: ‘A material body [Körper] such as the one described […] is what we call our human body [Leib] […].’ (FNR: 58, GA, I.3: 365).33
[Strategy 1] The initial aspect that merits attention is what Fichte writes in brackets, namely that the right to bodily inviolability means that ‘there should be absolutely nothing that exercises an immediate effect on the body’. Above I explained that one feature of FRE is that it is mediated ‘by concepts’. The prohibition of immediate influence on the body is equivalent to facilitating FRE, since, for Fichte (as we know from the second theorem) some kind of interaction with other free beings is necessary (and interaction between persons can only be mediate or immediate, according to Fichte, see Kosch 2018: 117).
Fichte’s remarks on a corresponding (moral) duty to the right to bodily inviolability (SoE, §23) also bring out clearly that the inviolability of the human body (Leib) consists in it being protected from immediate (i.e. forced) influences on it:
[…] the inviolability of the body [des Leibes], that is, that nothing should be able to exercise a direct influence on the body [Leib] by means of physical force […] (See my Natural Right, §11.34 )
[…] [N]ever exercise any immediate influence over the body [Leib] of the other. A human body [Leib] is supposed to be dependent upon the will of the person, and absolutely not dependent upon any external force. To be sure, I may determine the [other’s] body [Leib] indirectly, by determining the will of the other person through rational grounds in order thereby to bring about this or that modification of his body [Leib] and thereby to produce some modification of the sensible world.
[…] I may not seek to move the other person’s will by constraint, beating, hunger, withdrawal of freedom, or imprisonment. (Fichte 2005 [1798]: 264f.; GA, I.5: 247f.)
Furthermore, it is interesting that directly after introducing the two original rights in the FNR, Fichte explicitly distinguishes the right to bodily inviolability from a right to self-preservation:
There is no separate right to self-preservation; for it is merely contingent that, in a particular instance, we happen to be using our body [Körper] as a tool, or things as means, for the end of securing the continued existence of our body [Leib] as such. (Fichte 2000 [1796/7]: 108; GA, I.3: 409)
By this, I understand Fichte to mean that the preservation of a human’s biological body (Körper) is only valuable if it contributes to securing a human’s Leib – that is the body viewed as the medium through which free (inter)action takes place (cf. James 2014: 356). The right to bodily (leibliche) inviolability is therefore distinct from a right to bodily (körperliche) preservation.35
[Strategy 2] The paragraphs where Fichte introduces the body in the FNR are part of the second main division, the ‘deduction of the applicability of the concept of right’: Fichte is thinking about what the sensible world must look like if the concept of right is to be applicable in it. More specifically, §§5 and 6 map onto the first and second theorem of the ‘deduction of the concept of right’: What must the world look like if persons are freely efficacious in it (§5, first theorem)? What must the world look like if persons engage in FRE in it (§6, second theorem)?
In §5, Fichte investigates how an individual freely efficacious being must be embodied. Its material body constitutes the limited (FNR: 55f.; GA, I.3: 362f.) ‘sphere of all the person’s possible free actions [Umfang aller möglichen freien Handlungen der Person]’ (FNR: 56; GA, I.3: 363) in the sensible world. Fichte emphasises that the body’s ‘essence consists in this alone’ (FNR: 56; GA, I.3: 363). This is remarkable because thereby other aspects one might associate with the body, like natural needs, are characterised as inessential. Regarding the distinction between Leib and Körper, it is therefore clear that the Leib as the medium of free (inter)action is at stake here. Fichte also highlights that if the body is to serve its function as a medium of freedom, it must be possible for a person to ‘bring forth in this body36 whatever he wills’ (FNR: 56; GA, I.3: 363). Fichte then asks himself how we can think of such changes in the body through the will, if we also presuppose that the body of a person must endure in time.37 His answer is that these changes only alter the relation of different body parts to one another (FNR: 57; GA, I.3: 364). Here, Fichte introduces the concept ‘articulation’ (FNR: 58; GA, I.3: 365), expressing that the body of an individual free being must be divided into separately movable parts. Fichte adds that the number of possible ways in which one’s body parts relate to one another is ‘infinitely varied’ (FNR: 57; GA, I.3: 364).
In §6, Fichte further specifies the body (Leib). Recall that §6 maps onto the second theorem that Fichte explicitly refers to at the very beginning of the paragraph (FNR: 58; GA, I.3: 365). The question here is: What must the body look like, if it can be influenced by others in a manner that does not cancel its own freedom or what must it look like such that it is able to stand in relations of FRE?
Before coming to Fichte’s answer, note that there is no further paragraph in the second main division that maps onto the third theorem, and further specifies the body in relation to ROR. So, everything we learn about the body in the second main division is about how it enables FRE, and Fichte does not think that additional features are needed to enable ROR. This architectonic fact provides evidence for my claim that the protection of the body only enables FRE and that its protection is not sufficient to constitute ROR.
Fichte begins the discussion in §6 by stating that if a person has been influenced and a person is defined by their ‘sphere of free actions’ (which is expressed in their body, see §5), then being influenced must mean that (at least) one of these possible actions is made impossible or is ‘cancelled’ (FNR: 59; GA, I.3: 365f.) This would, however, constitute a restriction of freedom and so we cannot think of free influence simply in this way. Instead, the cancellation in question must somewhat be freely accepted. This is how we come to the puzzle that Fichte aims to solve in the paragraph: ‘the same determinate activity of the person must simultaneously, in the same undivided moment, be both canceled and not canceled. Our task is to investigate how this can happen.’ (FNR: 59; GA, I.3: 366) Fichte reformulates the puzzle thus: ‘this determination of the body’s articulation is, in a certain way, actually produced by the will’s efficacy, and at the same time – in another way – it is canceled by an influence from outside.’ (FNR: 60; GA, I.3: 366f.) Fichte’s solution for the puzzle is the ‘double articulation’ of the body (FNR: 60; GA, I. 3: 367). This means a ‘double manner of determining the body’s articulation’ (ibid.), or a ‘double organ’ (ibid.): a ‘higher organ’ and a ‘lower organ’ (FNR: 60f.; GA, I. 3: 367). What Fichte means by the term ‘organ’ is uncertain. In his time, ‘organ’ usually referred to a part of the body (say, a limb), more metaphorically a tool (of the body), or a bodily organ (like the heart).38 Fichte’s usage of the term, however, idiosyncratically seems to refer to the entire organisation of the body (Bisol 2011: 68, fn. 3).39 This contributes to the fact that Fichte’s account of the higher and lower organ is difficult to disentangle. I will defend what I call a holistic (in contrast to a concretist) interpretation, according to which the term higher (respectively lower) organ refers to a specific way in which the entire body is determined, rather than seeing, say, the lower organ as being manifested in a concrete aspect of the body (e.g. the tactile sense40 ).41
To interpret the meaning of the higher and lower organ, it is helpful to consider how Fichte views their relation in perception. He writes: ‘[…] the person’s perception of the required influence upon him involves the following: The person must tacitly accept the influence [with his higher organ], […]; he must not cancel the modification that has been produced in his [lower] organ.’ (FNR: 61; GA, I.3: 367) This could mean that the lower organ, say, received the image of a tree and the higher organ accepted this image without modifying it: so, it freely accepted this outer influence but was not necessitated to take it in. As this example concerning perception suggests, Fichte writes that ‘the human being’s articulated body is sense [Sinn]’ (FNR: 61; GA, I.3: 638). Fichte makes explicit that if we understand external influence in the way just described, then ‘the person remains entirely and perfectly free [ganz und vollkommen frei]’ (FNR: 62; GA, I.3: 368). We may call this freedom preserving influence. Regarding the right to bodily inviolability, we can therefore say that such influence is not problematic. But Fichte also introduces an opposite kind of influence on the body: freedom cancelling influence. In this case, ‘my body would have to be […] completely restricted in its movements’ (FNR: 63; GA, I.3: 370). Fichte also describes this influence as ‘physical force’, ‘direct[] [geradezu]’ and influence that is akin to the way one influences matter (FNR: 64; GA, I.3: 371). It seems that the ‘lower organ’ is exclusively responsible for this kind of interaction. Conversely, the ‘higher organ’ is responsible for free (mutual) influence: ‘[…] the reciprocal efficacy of free beings as such always occurs by means of the higher sense […]’ (FNR: 67; GA, I.3: 373).
As we have seen, the double organ of the human body (Leib) serves a particular function in Fichte’s theory, namely, to make sense of the idea that influence on a free being in the sensible world is possible without thereby negating its freedom. From here, the question arises how this abstract function of the double organ translates into less obscure ways of referring to parts or functions of the human body. I have mentioned Bisol’s concretist interpretation of the lower organ as representing the tactile sense. In this vein, one could, for example, see eyes as manifestations of the higher organ, since they are able to ‘take in’ outer influences without physical touch. In addition to the terminological observations regarding Fichte’s usage of ‘organ’ (see above), two reasons may be given against a concretist interpretation and thereby in favour of a holistic one.
First, it seems that interactions between persons that involve physical touch (and therefore the tactile sense) may still count as instances of FRE. For example, the whole idea of ‘Contact Dance’ is dancing together without a previously fixed choreography but by consciously perceiving the intentions of the other person’s body and reciprocally adapting one’s movement. Or, tapping someone on the shoulder to gain their attention also seems more like an act of communication rather than an interaction akin to the way one influences matter. Lastly, non-violent sex seems to be an example of FRE.42
Second, it seems that all the sense organs that do not involve physical touch (visual sense, olfaction, sense of hearing) cannot in themselves fulfil the function of the higher organ. Recall the example of the image of the tree that I mentioned above. The eye may take in this outer influence, as it were, but it seems that if Fichte’s idea, that it is a separable step to accept this outer imprint, makes any sense at all, a further part of the body (the brain?) would have to be involved.43
Therefore, it is most plausible to interpret the higher and lower organ as distinct ways of determining the whole body, namely as (more or less) receptive and (more or less) active (cf. Abazari 2022: 7f.): the human body (Leib) has both the ability to receive impulses from the outer world and to freely decide what to do with these – and additionally to act in the world and mould it according to chosen ends44. Developing this holistic interpretation of Fichte’s higher organ remains a desideratum for further research.45 For the purposes of this paper, it suffices to retain: The higher organ of the human body (Leib) represents the ability to take part in relations of FRE.
Back to the right to bodily inviolability: What Fichte has in mind is that the body should be protected, such that the ability of the higher organ – which is responsible for free interaction with others – is not impeded. This right, in turn, is violated if the body of a person is subject to physical violence by others, but also when, for other reasons, an embodied person has no ability to react to outer impulses freely, that is to make use of their higher organ. I think this is at least the case when basic material needs are not met or one’s life is in danger. To give a simple example, a person who is starving has no choice but to view another person who has access to food as a means by which they could satisfy their hunger. In a society in which human rights are fully protected, there would therefore be no hunger.
2.3 The Right to Secure Access to a (Sufficient) Part of the World
Recall the formulation of the second original right:
(2) the right to the continued existence of our free influence with the entire sensible world. (FNR: 108; GA, I.3: 409)
I interpret this right and refer to it as ‘the right to secure access to a (sufficient) part of the world’. This stands in obvious contrast to Fichte’s own formulation that this is a right to access (‘access’ as a reformulation of ‘the continued existence of our free influence’) to the ‘entire’ world. This also relates back to the first original right; I glossed over the fact that Fichte specified this to be a right to ‘absolute freedom and inviolability of the body’ (my emphasis). Let me dwell on this absoluteness puzzle regarding Fichte’s original rights for a moment.
Consider this general definition Fichte provides of ‘original right’: ‘the absolute right46 of the person to be only a cause in the sensible world (and purely and simply never something caused)’ (FNR: 103; GA, I.3: 404, the first emphasis is mine). With the first theorem in mind, we can reformulate this to the right to absolute free efficacy in the world. Unsurprisingly, interpreters have been puzzled about Fichte’s absolutist depiction of original right (e.g. Horstmann 2001: 155): It sounds as though Fichte is thereby negating the justified existence of other free beings (who may interfere with my freedom), while previously having asserted that free beings can, in principle, only exist in the plural (second theorem). Picardi (2022) therefore proclaims an ambiguity regarding Fichte’s ‘original right’, namely that it is unclear whether it ‘presupposes a plurality of free beings’ or is conceived ‘from the abstraction of an individual thought of as isolated’ (126, note 16). I hold a twofold view on this issue: First, ‘absolute freedom’ must not mean isolated freedom. Regarding the right to bodily inviolability, I believe Fichte simply means that nobody should ever exercise non-consensual violence on another’s body. Free interaction would thereby not be excluded by absolute freedom. Similarly, the (second) right to ‘free influence with the entire sensible world’ must not be read as the right to full and individual control of the whole world. Rather, it could mean that any restriction of an individual’s (principally unlimited) access to the world must be mediated by free interaction – say by good reasons or legitimate political institutions. This perspective matches the ‘republican account of freedom as independence’ or non-domination that has been attributed to Fichte (Nance 2019: 653). Second, original right is indeed conceived from the abstract perspective of the isolated individual in the sense that it is valid for all persons independently of their concrete political community.47
Now to the substance of the second original right: To begin with, it is helpful to consider that it is the ‘ground of all property rights’ (FNR: 106; GA, I.3: 407). Importantly, Fichte has an unorthodox understanding of property (rights): ‘The object of the property contract is a particular activity.’ (FNR: 184; GA, I.4: 20) This stands in contrast to the standard view that property rights concern owning an object (Nance 2019: 645f.). According to the unorthodox view, having property in an object, e.g. a car, is, in fact only a shorthand for having the right to particular actions, namely, among others, to drive or sell the car. Other actions pertaining to the car, like having it thrown into the ocean, are forbidden. ‘Owning an object’ is therefore an imprecise way of expressing a set of someone’s exclusive rights to certain actions. Also, Fichte thinks that all human actions are ultimately based on one shared goal of action, namely, to be able to live.48 Putting these two elements together – the unorthodox account of property and humans’ shared goal of action – Fichte thinks that ‘To be able to live is the absolute, inalienable property of all human beings.’ (FNR: 185; GA, I.4: 22) Since Fichte also calls activity that is (in a mediated sense) directed at securing one’s ability to live ‘labor’,49 the claim regarding inalienable property is reformulated to the prescription that ‘[…] everyone ought to be able to live from his labor.’ (ibid.)
We can gather from this, that Fichte proclaims a human right to an exclusive sphere of actions that – if realised – would secure someone’s basic needs to be able to live. In the contemporary language of distributive justice, this is a sufficientarian position. Since, for Fichte, the allocation of spheres of actions and not goods is primary, the way the division of labour is organised in a given society is essential for judging whether it fulfils this sufficientarian ideal (FNR: 189ff.; GA, I.4: 25ff.).
What does this have to do with FRE? First and simply, if someone does not have any leeway to act in the world, then they are not free. So, granting persons access to some free actions in the world is necessary for FRE. Second, and as I already suggested regarding the first original right, persons are unlikely to relate to each other as free beings when their basic needs are not met: they are prone to regard each other as means to fulfilling these needs. So, securing basic needs by way of providing everyone with property (in the unorthodox sense) sufficient for their livelihood facilitates FRE. Third, recall that FRE is not a very demanding normative relation compared to a full ROR in Fichte’s terms. This fits with the fact that the distribution of property that the second original right demands is only sufficientarian and not egalitarian.
Labelling Fichte’s conception of human rights sufficientarian invokes a concern about how it fits with his egalitarian vision of a just society, most fully articulated in his later work The Closed Commercial State. A philosophical sketch offered as an appendix to the Doctrine of Right and as a test of a politics to be delivered in the future (Fichte 2012 [1800]; GA, I.7) [CCS]. As the subtitle makes clear, Fichte views this work as a continuation of his project in the FNR. In CCS, Fichte elaborates on his view of a just distribution of property, which, as I have mentioned, amounts to a view about the just division of labour due to Fichte’s unorthodox account of property. In CCS, Fichte reiterates the sufficientarian criterion:
the division must first of all allow everyone to exist. Live and let live! (Fichte 2012 [1800]: 93; GA, I.7: 55)
But Fichte adds an egalitarian criterion:
Everyone wishes to live as pleasantly as is possible. Since everyone demands this as a human being, and no one is more or less human than anyone else, everyone has an equal right in [making] this demand. In accordance with this equality of their rights, the division must be made in such a way that one and all can live as pleasantly as is possible when so many men as they are exist next to one another in the given sphere of efficacy. (ibid.)
Relating the sufficientarian and the egalitarian criterion to my claim that original rights aim at FRE and to the distinction between FRE and ROR, the following picture arises: Realising the sufficientarian criterion is enough to secure FRE and therefore original rights. If the egalitarian criterion is also realised, this satisfies the equality component of ROR. Equality has a stabilising effect on FRE (see above): although persons may already co-exist freely in FRE, this relation is likely to be disturbed or destroyed due to stark inequalities.
Additionally, I believe that Fichte held the view that external actors are not justified in intervening in another political entity if it satisfies FRE, even if it does not constitute ROR. Intervention can mean to ‘subjugate citizens’ of another state or to ‘wage war’ (FNR: 323; GA, I.4, 154). Intervening is only legitimate, Fichte wrote in the section on the right of nations in the second appendix of the FNR, if ‘the citizens of the other state […] are not living under a rightful constitution at all’ (ibid.). Judging whether ‘a rightful constitution’ is in place ‘at all’50 depends on whether ‘the security of the respective citizens’ (ibid.) is assured. FRE is essentially a non-violent relation and therefore implies the security of those involved. The kind of security intrinsic to FRE (and thereby the minimal condition of a rightful state) is explicitly connected to the availability of basic goods by Fichte: ‘A continued existence of the state is that a sufficient amount of food be available […].’ (FNR: 189; GA, I.4: 25)51 Beyond the (non)-existence of FRE ‘[i]t is none of its [a state’s] business to inquire about the other state’s inner constitution’ (FNR: 189; GA, I.4: 153). This position aligns Fichte with the ‘political’ camp in the contemporary debate, where human rights-violations are seen as the threshold beyond which external intervention is legitimate (see section 3).
Having emphasised that the second original right pertains to the provision of basic goods, the question arises what it adds to the first original right. Hunger and the non-fulfilment of other basic needs are already contrary to bodily inviolability. In my view, we can derive additional, one might say, procedural human rights’ standards from the second original right. They go beyond the substantial demand for securing basic needs and concern the mode in which they are secured.
First, recall that in the second original right Fichte is not directly concerned with securing basic needs, but grants to everyone the right to provide for their livelihood by their own labour.52 Not merely passively receiving the goods necessary for the fulfilment of basic needs again contributes to realising ‘Fichte’s republican account of freedom as independence’ (Nance 2019: 653).53
Another procedural human right’s standard derivable from Fichte’s second original right pertains to criminal law. Notably, this concerns the question of which justifications should be accepted for actions that are classified as criminal offences. Consider Fichte’s remarks about the violation of property rights:
if someone is unable to make a living from his labor, he has not been given what is absolutely his, […] he is no longer obligated by right to recognize anyone else’s property. (FNR: 186; GA, I.3: 186)
Accordingly, Fichte holds the view that if you are in a situation of emergency (e.g. your life is in danger during a storm and you break into someone’s house54 ), a state that is organised in a manner that fulfils human rights should not penalise you for this. Positively, a state that fulfils human rights should have legal instruments55 in place that recognise a citizen’s special situation in cases of emergency. Regarding the storm-example (cf. already Neuhann 2020b), if someone was convicted for trespassing while being in a situation of emergency, this would constitute a violation of their universal right to property (the second original right).56
2.4 Securing FRE
The respect for both original rights is sufficient for a social relation to be an instance of FRE. The fact that they are not violated is also necessary for FRE. This necessity is, however, only related to the informal or philosophical idea of these rights and not to their institutionalised version. This is because FRE can occur spontaneously and not only in institutionalised contexts, although stable relations of FRE are empirically most likely in such contexts (recall the normativity feature of ROR). If these institutional contexts additionally display egalitarianism, this contributes even more to the stability of FRE (recall the equality feature of ROR).
Seeing the aim of human rights as FRE and regarding both of Fichte’s original rights as expressing this is relevant to later and contemporary debates in the philosophy of human rights in three ways. First, consider the criticism that human rights talk tends to a ‘proliferation’ (Wellmann 1988), making every political end into a human rights claim. This is not a critique that can be made of Fichte’s account because FRE is not an egalitarian relation and therefore political efforts pertaining to the creation of substantial equality would not be framed as human right claims in it. Second, consider the critique of human rights initially put forward by Arendt that human rights only protect bare life, the ‘abstract nakedness of being human’ (Arendt 1973 [1951]: 297).57 In her picture, human rights do not protect anything human about human life but rather mere biological survival. Interrogating Fichte’s right to bodily inviolability in this context seems promising, because it emphasises the importance of the inviolability of the body for human rights while conceptualising the body in the non-biologistic sense of the Leib.58 Third, Fichte’s account – like any relational one – does not succumb to the criticism that human rights express or sustain an overly individualistic image of human persons: Fichtean human rights do not aim to protect the individual person in isolation but rather their ability to relate to others freely (see below).
3 The Peculiar Normative Status of Fichtean Human Rights
Having laid out the substantive aim of Fichtean human rights in the last section, the goal of this one is to understand their normative status more thoroughly. In this context, three overlapping dimensions regarding their normative nature are relevant: positive or non-positive; moral or politically established legal rights; individualistic or relational. Note that the question about the normative nature or status of these rights is distinct from the one concerning their justification which, as I have noted, is only of secondary interest to this paper. The justificatory dimension, however, has implications for the normative status of Fichtean human rights, which is why I will recap it in the next paragraph.
For Fichte, the justification (or ‘deduction’) of the concept of right (remember that original rights are the first step in applying this concept to the world) works by showing that it is a condition of self-consciousness. The normative impetus of the concept of right is justified if it can be shown – as Fichte thinks that it can – that making use of this concept is indispensable for self-conscious beings. This raises numerous difficult questions concerning, especially, what Fichte means by self-consciousness and what counts as operating with the concept of right. Regarding the former question, I take the view that what Fichte has in mind is self-consciousness in the sense of having the ability to reflect on one’s own ends of action (Kosch 2021, esp. 220): self-consciousness of one’s free efficacy. In the following, I will call this simple practical self-consciousness. Note, on the one hand, that this sense of understanding self-consciousness is distinct from the mere ability of free efficacy or action (ibid.) and, on the other, that, in Fichte’s practical philosophy, there is also a more demanding form of self-consciousness: in his moral philosophy (as developed in SoE), he is interested in a form of self-conscious action in which not only the goals of action are reflected upon, but these goals are also determined by the right criterion.59 I will flesh out my answer to the second question in more detail below, but to begin with, note that I refrain from attributing the philosophically implausible view to Fichte that simply practical self-conscious beings can only exist in legal states (Neuhouser 2000: xvii).60 It must be a weaker sense in which Fichte thinks that operating with the concept of right is a necessary feature of self-conscious (in the simple, practical sense) beings.
With the aim of clarifying the normative status of Fichtean human rights regarding the three dimensions mentioned above (non-/positive, moral/political-legal, individualistic/relational), next I will come back to the distinction between human (Mensch)61 and person (Person) that I introduced in section 1.
Recall Fichte’s ‘one true human right’ that I interpreted as the right to be part of a legal community. This legal community must institutionalise the two original rights; rights that are contained in the mere concept of the person. Then, qua human (Mensch) one has the right to become a person (Person).62 Being human therefore implies the potential of becoming a person. If rights that secure personhood are necessary (original rights), this must mean that one can be deprived of (at least fully) developing this potential by others. This also means that humans deprived of original rights are not persons – at least not in the full sense. From here, the peculiar normative status of Fichtean human rights can be unfolded.
Positive/non-positive: Since, for Fichte, every human has the (meta-)right to be part of a legal community in which original rights are secured, there is a meaningful sense in which both the meta-right and the derivative human rights (original rights) are independent from concrete legal communities (non-positive) and belong to the human as such. Differently put, they are universal rights. However, as I have mentioned, Fichte also claims that original rights are a ‘mere fiction’ (FNR: 102; GA, I.3: 403f.). I take this statement to imply three things:
First, for an individual a purely philosophical right is worthless. This is the reason for Fichte’s complex understanding of human rights: Although he is confident that something can be said about the substance of rights universally valid for all humans, he thinks they must be institutionalised in states, such that binding correlative duties may be allocated.63 Therefore, he does not simply proclaim the two original rights as human rights but puts forward a (meta-)right to be part of a legal context in which these rights are enforced. Accordingly, the meta-right itself cannot be a claim-right in the strict Hohfeldian sense of implying correlative duties (Hohfeld 1913: 284).64
Second, note that Fichte’s original rights are formulated in a very abstract way such that their content must be specified context-specifically. To illustrate, consider a diachronic shift in the interpretation of the right to bodily inviolability65 in relation to its encroachment by rape. In 2016, German sexual criminal law was reformed according to the slogan ‘No Means no!’. Since then, rape no longer necessarily involves the victim’s attempt to physically defend themselves. Differently put, the right to bodily inviolability now already counts as having been infringed if the victim’s communication of non-consent was disregarded. Furthermore, legal norms with a specified content remain general rules that need to be applied to particular cases (did a particular woman communicate non-consent?). Institutions with the right to make authoritative decisions regarding the (non-)violation of a right in specific cases are therefore also necessary means of realising them.
Third, as I have argued, for Fichte, the aim of original rights is FRE which, in turn, makes simple practical self-consciousness, that is personhood, possible in the first place. Original rights appear as bizarre (‘fictional’) constructs if the persons who are supposed to hold them are, in fact, only constituted if these rights are already secured. Initially, it seems then that the subject of these rights cannot exist.66 In order to solve this puzzle, we need to acknowledge that, although the aim of original rights is to establish and secure FRE, FRE can also occur spontaneously without such rights.67 Having – at least for a minimal period – stood in a relation of FRE is, however, necessary to gain personhood:
It has indeed been shown that, if a rational being is to come to self- consciousness – and hence if it is to become a rational being – then another rational being must necessarily exercise an influence upon it as upon a being capable of reason [that is FRE]. (FNR: 81; GA, I.3: 385)
Although it seems that, for Fichte, a minimal sense of personhood cannot be lost again once it has been attained,68 I think we can plausibly attribute the view to Fichte that a full and continuous realisation of personhood is best achieved through a legal system that at least secures original rights.
Individual/relational: From here we can see that Fichte’s account of human rights is relational in a double sense (see Introduction). First, it is grounded in a social relation: human rights secure personhood which, in turn, is constituted by at least having stood or standing in a social relation (FRE). Second, the aim of human rights is to (re-)establish and secure this relation. Note that the idea that rights serve the purpose of protecting individuals from certain social forces is thereby not lost. Fichte’s account of human rights does justice to the fact that, one the one hand, we are fundamentally social beings, and, on the other, that our individuality can only unfold if our social relations are instances of FRE.
Moral/political-legal: Although Fichte’s account is non-positive in a meaningful sense, it is important to see that the relevant kind of non-positive normativity is not moral but genuinely belongs to the realm of law and politics. This is because the kind of self-consciousness (simple, practical) that is to be fostered by the realisation of the concept of right (for which securing original rights is fundamental) is not yet sufficient to constitute a moral agent69. Nevertheless, the spheres of politics/law and morality must be understood as standing in a continuous relationship for Fichte. Moral agency is dependent on having attained legal personhood and the kind of self-consciousness that is characteristic of moral agency is a further advancement of reflexivity in comparison to the one central to legal personhood – and not, say, a different kind of self-consciousness.70 The fact that Fichte’s human rights are only based on the idea of simple practical self-consciousness and not a thicker moral or ethical theory (that values an autonomous life, for example), protects it against worries of ethno-centrism (Clarke 2020b: 439).
In sum, Fichtean human rights are non-positive, relational and firmly placed in the realm of law and politics.71
Regarding the common – and often criticised – distinction between ‘orthodox’ and ‘political’ accounts in the contemporary debate on the philosophy of human rights, Fichte’s view occupies a hybrid position. Take, for example, Tasioulas’s brief summary of ‘the orthodox view, according to which human rights are moral rights possessed by all human beings simply in virtue of their humanity’ (2015: 45, my emphasis). On the one hand, for Fichte, human rights are indeed rights ‘possessed by all human beings simply in virtue of their humanity’; on the other, they are not moral rights. Furthermore, Fichtean human rights provide only a minimal normative scaffolding for politics and legislation, therefore granting an important role to real politics – like ‘political’ accounts.
More specifically, consider that, for the development of the ‘political’ view, Raz’s (2010) interpretation of Rawls’s underspecified view on human rights in The Law of Peoples (1993) was influential. In line with the view that I attributed to Fichte, Rawls writes: ‘human rights are […] necessary conditions of any system of social cooperation. When they are regularly violated, we have a command by force, a slave system, and no cooperation of any kind.’ (Rawls 1999: 68) For Fichte and for Rawls, human rights enable a non-forceful and minimally cooperative social relation. However, this aspect of Rawls’s remarks on human rights was not central for Raz’s interpretation. Raz emphasised the idea that, for Rawls, the current regime of human rights serves the purpose of delineating the borders of sovereignty of a political community: only when human rights are violated is external intervention permissible (Raz 2010: 328). Thereby, the two defining features of the ‘political’ account are expressed: Methodologically, the purpose of human rights ought to be ‘distilled’ from the current regime; substantially, their main purpose is to define the legitimate borders of sovereignty. Later interpreters have, however, underlined the idea that, for Rawls, ‘human rights [serve] as conditions for social cooperation’ (Müller 2017). This focus destabilises the distinction between orthodox and political accounts. To understand this, we first need to see that according to Müller’s interpretation of Rawls, his view of human rights can be summarised in terms of three features: i) human rights are philosophically justified (method), ii) this justification appeals to their role as enabling cooperation, and iii) human rights (still) serve the purpose of delineating the borders of sovereignty. i) is usually seen as a feature of orthodox accounts, whereas iii) is essential to political accounts. Fichte’s account of human rights shares all these three features,72 underscoring that he occupies a hybrid position in reference to the distinction between ‘orthodox’ and ‘political’ views.
Conclusion
I have argued, first, that Fichte has a complex understanding of human rights in the FNR, defending a meta-right to institutionalised (original) rights. All rights in this formula should, in my view, be regarded as human rights since they are universally valid for all humans qua human. Second, I have shown that the substantial aim of Fichtean human rights is to establish and secure relations of ‘free reciprocal efficacy’ rather than a full relation of right. Third, I have elaborated on the peculiar normative status of Fichtean human rights as non-positive, relational and genuinely belonging to the sphere of right (not morality).
My interpretation has highlighted some thus far underappreciated aspects of the FNR, among others and in particular Fichte’s concept of the body (Leib) in the right to bodily inviolability. Moreover, in conversation with the contemporary debate, Fichte’s hybrid position between orthodox and political human rights accounts came to the fore.
Two desiderata for further research are to be noted: (1) I have concentrated on the ‘internal’ dimension of human rights, i.e. their function as criteria for judging the minimal rightfulness of political entities. More work is to be done on the ‘external’ dimension of Fichtean human rights as means for navigating relations between states and non-compatriots.73 This includes relating human rights to Fichte’s position regarding international trade (in CCS). (2) Relatedly, more work must be done on how the sufficientarian view expressed in the second original right exactly relates to the egalitarian or even socialist position Fichte develops in CCS.
Acknowledgments
The research for this article was supported by the DFG (German Research Foundation) in my project Fichte and Human Rights (2021–2023) at the University of Hamburg. I have presented previous versions of this paper at several occasions, including the Early Career Workshop of the North American Fichte Society (online in 2021), the Congresses of the Deutsche Gesellschaft für Philosophie (online in 2021) and the Internationale Johann Gottlieb Fichte-Gesellschaft (2022) and a conference on The Politics of German Idealism at the University of Coimbra (2023) as well as colloquia at Cornell University, the University of Hamburg, Humboldt University of Berlin and the University of York. I have greatly benefitted from the comments of many colleagues at these events and beyond them: thank you! I’m also grateful for the thorough reviews of the anonymous referees. Special thanks to Michelle Kosch for her critical feedback and support.
Bibliography
Abazari, Arash: ‘Fichte’s Conception of the Body. The Intertwining of Sociality and Embodiment’. In: European Journal of Philosophy (2022), pp. 1–16.
Agamben, Giorgio: Homo Sacer. Sovereign Power and Bare Life. Stanford 1998 [1995].
Arendt, Hannah: The Origins of Totalitarianism. San Diego, New York, London 1973 [1951].
Azmanova, Albena: ‘The Right to Politics and Republican Non-Domination’. In: Philosophy and Social Criticism 42 (4–5) (2016), pp. 465–475.
Bedau, Hugo Adam: ‘“Anarchical Fallacies”: Bentham’s Attack on Human Rights’. In: Human Rights Quarterly 22:1 (2000), pp. 261–279.
Bernstein, Jay M.: Torture and Dignity. An Essay on Moral Injury. Chicago 2015.
Bisol, Benedetta: Körper, Freiheit und Wille. Die transzendentalphilosophische Leiblehre J.G. Fichtes. Würzburg 2011.
Borsche, Tilman and Kaulbach, Friedrich: ‘Leib, Körper’. In: Ritter, J. – Gründer, K. – Gabriel, G. (eds.), Historisches Wörterbuch der Philosophie, vol. 5, Basel 1980.
Cesa, Claudio: ‘Zum Begriff des Praktischen bei Fichte’. In: Apel, K.-O. (ed.): Zur Rekonstruktion der Praktischen Philosophie. Gedenkschrift für Karl-Heinz Ilting, Stuttgart – Bad Cannstatt 1990, pp. 461–480.
Clarke, James: ‘Deduction of Right’. In: Bykova, M. F. (ed.): The Bloomsbury Handbook of Fichte, London 2020a, pp. 441–448.
Clarke, James: ‘Separation of Right from Morality’. In: Bykova, M. F. (ed.): The Bloomsbury Handbook of Fichte, London 2020b, pp. 433–440.
Clarke, James: ‘Fichte’s Independence Thesis’. In: Gottlieb, G. (ed.): Fichte’s Foundations of Natural Right. A Critical Guide. Cambridge (UK) 2016, pp. 52–71.
Clarke, James: ‘Fichte’s Transcendental Justification of Human Rights’. In: Rockmore, T. – Breazeale, D. (eds.): Fichte and Transcendental Philosophy. Basingstoke 2014, pp. 242–256.
Darby, Derrick: Rights, Race, and Recognition. Cambridge (UK) 2009.
De Pascale, Carla: ‘Die Vernunft ist praktisch’: Fichte’s Ethik und Rechtslehre im System. Berlin 2003.
Dias, Maria Clara: Die sozialen Grundrechte. Eine philosophische Untersuchung der Frage nach den Menschenrechten. Konstanz 1993.
Etinson, Adam (ed.): Human Rights: Moral or Political? Oxford 2018.
Fichte, Johann Gottlieb: Contribution to the Correction of the Public’s Judgment on the French Revolution, translated by Jeffrey Church and Anna Marisa Schön. Albany 2021 [1793].
Fichte, Johann Gottlieb: Foundation of the Entire Wissenschaftslehre, translated by Daniel Breazeale, Oxford 2021 [1794–5].
Fichte, Johann Gottlieb: The Closed Commercial State. A philosophical sketch offered as an appendix to the Doctrine of Right and as a test of a politics to be delivered in the future, translated by Anthony Curtis Adler. Albany 2012 [1800].
Fichte, Johann Gottlieb: The System of Ethics, translated and edited by Daniel Breazeale and Günter Zöller, Cambridge (UK) 2005 [1798].
Fichte, Johann Gottlieb: Foundations of Natural Right, translated by Michael Baur, edited and introduction by Frederick Neuhouser, Cambridge (UK) 2000 [1796/7].
Fichte, Johann Gottlieb: ‘Reclamation of the Freedom of Thought from the Princes of Europe, Who Have Oppressed It Until Now’, translated by Thomas E. Wartenberg. In: Schmidt, J. (ed.): What Is Enlightenment? Eighteenth-Century Answers and Twentieth-Century Questions. Berkeley 1996, pp. 119–142.
Fichte, Johann Gottlieb: Johann Gottlieb Fichte: Gesamtausgabe [GA]: Reihe I/Werke. Volumes 1, 3, 4, 5 and 7 as well as Reihe II/Nachgelassene Schriften. Volume 2, Gesamtausgabe der Bayerischen Akademie der Wissenschaften, edited by Reinhard Lauth, et al., Stuttgart-Bad Cannstatt 1970.
Gilbert, Margaret: Rights and Demands. A Foundational Inquiry. Oxford 2020 [2018].
Gottlieb, Gabriel: ‘Fichte’s Philosophy of Right’. In: Bykova, M. F. (ed.): The Bloomsbury Handbook of Fichte, London 2020, pp. 119–137.
Gottlieb, Gabriel: ‘A Family Quarrel. Fichte’s Deduction of Right and Recognition’. In: Dahlstrom, D. O. (ed.): Kant and His German Contemporaries (Vol II). Cambridge (UK) 2018, pp. 170–192.
Gottlieb, Gabriel (ed.): Fichte’s Foundations of Natural Right. A Critical Guide. Cambridge (UK) 2016.
Gould, Carol C.: ‘A Social Ontology of Human Rights’. In: C. Gould: Interactive Democracy. The Social Roots of Global Justice. Cambridge (UK) 2014, pp. 34–57.
Griffin, James: On Human Rights. Oxford 2013 [2008].
Haaf, Johannes; Müller, Luise; Neuhann, Esther; Wolf, Markus: ‘Einleitung’. In: Haaf, J. – Müller, L. – Neuhann, E. – Wolf, M.: Die Grundlagen der Menschenrechte. Moralisch, politisch oder sozial? Baden-Baden 2023, pp. 9–26.
Hemsterhuis, François: ‘Lettre sur l’homme et ses rapports’ (1772). In: Oeuvres complètes de F. Hemsterhuis: Volume 1, edited by Louis Susan Pedro Meyboom, 1809, pp. 131–260.
Heydenreich, Karl Heinrich: System des Naturrechts nach kritischen Prinzipien. Edited by Johann Gottlieb Feind. Leipzig 1794.
Hohfeld, Wesley: ‘Some Fundamental Legal Conceptions as Applied in Judicial Reasoning’. In: The Yale Law Journal 23 (1913), pp. 16–59.
Horstmann, Rolf-Peter: ‘Theorie des Urrechts (§§8–12)’. In: Merle, J-C. (ed.): Johann Gottlieb Fichte: Grundlage des Naturrechts, Berlin 2001, pp. 113–123.
James, David: ‘Fichte on Personal Freedom and the Freedom of Others’. In: Gottlieb, G. (ed.): Fichte’s Foundations of Natural Right. A Critical Guide. Cambridge (UK) 2016., pp. 177–195.
James, David: ‘How “Natural” Is Fichte’s Theory of Natural Right?’. In: Altman, M. C. (ed.): The Palgrave Handbook of German Idealism, Cham 2014, pp. 342–359.
Kahlo, Michael, Wolff, Ernst A. and Zaczyk, Rainer (eds.): Fichtes Lehre vom Rechtsverhältnis. Die Deduktion der §§1–4 der Grundlage des Naturrechts und ihre Stellung in der Rechtsphilosophie, Frankfurt am Main 1992.
Kosch, Michelle: ‘Fichte on the Value of Rational Agency’. In: Buss, S. – Theunissen, N. (eds.): Rethinking the Value of Humanity. Oxford 2023.
Kosch, Michelle: ‘Fichte on Summons and Self-Consciousness’. In: Mind 130 (2021).
Kosch, Michelle: Fichte’s Ethics. Oxford 2018.
Kosch, Michelle: ‘Individuality and Rights in Fichte’s Ethics’. In: Philosopher’s Imprint 17:12 (2017), pp. 1–23.
Lacroix, Justine and Pranchère, Jean-Yves: Human Rights on Trial. A Genealogy of the Critiques of Human Rights. Cambridge (UK) 2018.
Lauth, Reinhard: Die transzendentale Naturlehre Fichtes nach den Prinzipien der Wissenschaftslehre. Hamburg 1984.
Mauthner, Fritz: Wörterbuch der Philosophie, vol. 2., Leipzig 1923, pp. 81–89.
Merle, Jean-Christophe: ‘Fichte and Human Rights’. In: Gottlieb, G. (ed.): Fichte’s Foundations of Natural Right. A Critical Guide. Cambridge (UK) 2016, pp. 239–258.
Merle, Jean-Christophe: ‘Einleitung’. In: Merle, J-C. (ed.): Johann Gottlieb Fichte: Grundlage des Naturrechts, Berlin 2001, pp. 1–19.
Mohr, Georg: ‘Moralische Rechte gibt es nicht’. In: Sandkühler, H. J. (ed.): Recht und Moral. Hamburg 2010, pp. 63–80.
Mohr, Georg: ‘“Der Mensch wird nur unter Menschen ein Mensch”: Fichte über interpersonale Anerkennung und Urrecht als Beitrag zur philosophischen Begründung von Menschenrechten’. In: Lim, H.-B. – Mohr, G. (eds.): Menschsein / On Being Human. Deutsche und koreanische Studien zu Epistemologie, Anthropologie, Ethik und Politischer Philosophie. Frankfurt am Main 2011, pp. 369–380.
Mohr, Georg: ‘Johann Gottlieb Fichte’: In: Pollmann, A. – Lohmann, G. (eds.): Menschenrechte. Ein interdisziplinäres Handbuch. Stuttgart 2012, pp. 52–57.
Moyn, Samuel: The Last Utopia. Human Rights in History. Cambridge (MA) 2010.
Müller, Luise Katharina: ‘Rawls’s Relational Conception of Human Rights’. In: Maliks, R. – Schaffer, J. (eds.), Moral and Political Conceptions of Human Rights: Implications for Theory and Practice, Cambridge (UK) 2017, pp. 58–76.
Nance, Michael: ‘Property and Economic Planning in Fichte’s Contractualism’. In: European Journal of Philosophy 27 (2019), pp. 643–660.
Neuhann, Esther: Zeitstrukturen des Rechts. Über die Möglichkeit einer kritischen Theorie der Gerechtigkeit. Weilerswist 2020a.
Neuhann, Esther: “Fichte’s Concept of Recognition and Poverty as Material Deprivation”. In: Schweiger, G. (ed.), Poverty, Inequality and the Critical Theory of Recognition, Cham 2020b, pp. 37–58.
Neuhouser, Frederick: ‘Fichte’s Separation of Right from Morality’ (earlier version from 1994), In: Gottlieb, G. (ed.): Fichte’s Foundations of Natural Right. A Critical Guide. Cambridge (UK) 2016, pp. 32–51.
Neuhouser, Frederick: ‘Introduction’. In: Johann Gottlieb Fichte: Foundations of Natural Right. According to the Principles of the Wissenschaftslehre, edited by Frederick Neuhouser and translated by Michael Baur. Cambridge (UK) 2000, pp. vii–xxvii.
Nomer, Nedim: ‘Are There Any Moral Rights for Fichte?’. In: Bykova, M. F. (ed.): The Bloomsbury Handbook of Fichte, London 2020, pp. 449–455.
Nomer, Nedim: ‘Fichte and the Idea of Liberal Socialism’. In: The Journal of Political Philosophy 13:1 (2005), pp. 53–73.
Picardi, Roberta: ‘The Right to the “Possibility of Acquiring Rights”: Cosmopolitan Right and Migration in Fichte’s Doctrine of Right’. In: European Journal of Philosophy 30 (2022), pp. 113–128.
Rancière, Jacques: ‘Who is the Subject of the Rights of Man?’. In: The South Atlantic Quarterly 103:2/3 (2004), pp. 297–310.
Rawls, John: The Law of Peoples with ‘The Idea of Public Reason Revisited’. Cambridge (MA) 1999 [1993].
Raz, Joseph: ‘Human Rights without Foundations’. In: Besson, S. – Tasioulas, J. (eds.): The Philosophy of International Law. Oxford 2010, pp. 321–337.
Renaut, Alain: Le système du droit: Philosophie et droit dans la pensée de Fichte, Paris 1986.
Rothhaar, Markus: Die Menschenwürde als Prinzip des Rechts. Eine rechtsphilosophische Rekonstruktion. Tübingen 2015.
Siep, Ludwig: Anerkennung als Prinzip der praktischen Philosophie (Neubearbeitung), Hamburg 2014 [1979].
Schmalz, Theodor: Das reine Naturrecht. Edited by Friedrich Nicolovius. Königsberg 1792.
Schottky, Richard: Untersuchungen zur Geschichte der staatsphilosophischen Vertragstheorie im 17. und 18. Jahrhundert (Hobbes – Locke – Rousseau – Fichte) mit einem Beitrag zum Problem der Gewaltenteilung bei Rousseau und Fichte. Fichte-Studien- Supplementa 6. Amsterdam 1995 [1962].
Shell, Susan: ‘What Kant and Fichte Can Teach Us about Human Rights’. In: Kennington, R. (ed.): The Philosophy of Immanuel Kant. Washington DC 2018 [1985], pp. 143–159.
Tasioulas, John: ‘On the Foundations of Human Rights’. In: Cruft, R. – Liao, S. M. – Renzo, M. (eds): Philosophical Foundations of Human Rights. Oxford 2015, pp. 45–70.
Tömmel, Tatjana: ‘Recht als Bedingung des Menschseins […]’. In: Haaf, J. – Müller, L. – Neuhann, E. – Wolf, M. (eds.): Die Grundlagen der Menschenrechte. Moralisch, politisch oder sozial?, Baden-Baden 2023, pp. 153–173.
Verweyen, Hansjürgen: Recht und Sittlichkeit in J.G. Fichtes Gesellschaftslehre. Freiburg/Munich 1975.
von Manz, Hans Georg: Farineß und Vernunftrecht. Rawls’ Versuch der prozeduralen Begründung einer gerechten Gesellschaftsordnung im Gegensatz zu ihrer Vernunftbestimmung bei Fichte. Hildesheim 1992.
von Manz, Hans Georg: ‘The Universality of Human Rights and Sovereignty of the State in Fichte’s Doctrine of Right’. In: Rockmore, T. – Breazeale, D. (eds.): Rights, Bodies and Recognition. New Essays on Fichte’s Foundations of Natural Right. London 2018 [2006], pp. 184–194.
Waldron, Jeremy (ed.): ‘Nonsense upon Stilts’: Bentham, Burke and Marx on the Rights of Man. London 1987.
Ware, Owen: Fichte’s Moral Philosophy. Oxford 2020.
Wellman, Carl: The Proliferation Of Rights: Moral Progress Or Empty Rhetoric?. London 1998.
Wood, Allen W.: Fichte’s Ethical Theory. Cambridge (UK) 2016.
On the debate between ‘political’ and ‘orthodox’ accounts, see Etinson 2018.
For similar views, also see Bernstein 2015 and Gilbert 2020 [2018]. For an overview of relational accounts, see Haaf, Müller, Neuhann and Wolf 2023, esp. 14–17.
Note that Bernstein (2015) does briefly refer to Fichte in the context of developing what one might call a normative conception of the body for an account of human dignity (pp. 281ff.).
The philosophical potential of Fichte’s view on human rights has been noted (esp. Mohr 2011 and 2012), but not fully spelled out.
See esp. Gottlieb 2016 and the monographs Wood 2016, Kosch 2018 and Ware 2020.
To my knowledge, only these authors have engaged in an about article-length reconstruction of Fichte’s view on human rights: Mohr 2010, 2011, 2012; Clarke 2014; Merle 2016; Dias 1993: S. 31–46; von Manz 2018 [2006] und 1992: 110ff.; Shell 2018 [1985]. Additionally, there is a (mainly but not exclusively German) tradition of interpretation of Fichte’s FNR in general (not focusing on human rights), see among others Kahlo, Wolff and Zaczyk 1992; Renaut 1986; Siep 2014 [1979]: 76–84, Verweyen 1975: 81–140, Schottky 1995 [1962].
A study of Fichte’s account of human rights could justifiably extend to his 1793 writings Contribution to the Correction of the Public’s Judgment on the French Revolution (Fichte 2021 [1793]; GA I,1) and Reclamation of the Freedom of Thought from the Princes of Europe, Who Have Oppressed It Until Now (Fichte 1996 [1793]; GA I,1). I share the well-established perspective that Fichte’s view changed considerably between 1793 and 1796. Roughly, he first believed that morality grounds right, and later that the sphere of right – or of law and politics – has an independent foundation (among others, see Neuhouser 2016 [1994], Clarke 2016, Merle 2016). Only the later view is relational and hence of special interest for the current debate.
On the history of these terms, see: Borsche and Kaulbach 1980. Leib is usually translated to ‘lived body’ or ‘living body’ in English.
Abazari 2022 agrees that Fichte uses the distinction between Leib and Körper deliberately (similarly Lauth 1984: 84); Bisol 2011: 13 disagrees.
All in footnote 6, except Shell.
Fichte uses both ‘freie Wechselwirkung’ (GA I,3: 348) and ‘freie[] Wechselwirksamkeit’ (GA, I.3: 344, italics removed). Baur translates the former to ‘free reciprocal efficacy’ (FNR: 33, italics removed) and the latter to ‘free, reciprocal interaction’ (ibid. 38). I will only use ‘free reciprocal efficacy’. One could make out a slight semantic difference between Wirksamkeit and Wirkung, the former emphasising the potential to efficacy and the latter its actuality. I do not think this is important for my argument and, in any case, the two distinct translations (efficacy, interaction) do not capture this difference.
See Waldron 1987: 29–76 for Bentham’s text Anarchical Fallacies from which the quote stems. It was presumably published in 1796 (Bedau 2000: 262) – the same year that the first part of the FNR was published.
Cf. Fichte’s definition of ‘positive law, the law that determines the limits of the rights and freedoms of each individual under particular circumstances’. (FNR: 98f.; GA, I.3: 401)
See Picardi 2022: 115f. for a contextualisation of Fichte’s discussion in the tradition of jus hospitalitatis. I am convinced by her claim that Fichte probably deliberately did not use the vocabulary of hospitality, despite being familiar with it (see Fichte’s review of Kant’s Toward Perpetual Peace in GA, I.3: 226).
On the term ‘meta-right’, see: Azmanova 2016: 471.
On the justified reasons for non-acceptance to a legal community according to Fichte, see Picardi 2022: 121ff.
Systematically, the second part of the FNR ‘applied natural right’ is a continuation of the third main division (Neuhouser 2000: xii).
See: ‘[…] each member of the community lets his own external freedom be limited […], so that all others beside him can also be externally free. This is the concept of right.’ (FNR: 10; GA, I.3: 320).
Strictly speaking, being the subject of original rights involves three minimal conditions: having (once) stood in a relation of FRE (i), being in an intersubjective situation in which peaceful interaction is desired (ii) and having the ability to respect another’s (original) right (iii). For more on (i), see section 3, ‘Positive/non-Positive’. On (ii), see Fichte’s claim that ‘right’ only has ‘hypothetical validity’ (FNR: 82; GA, I.3: 387): only if persons want to (continue to) co-exist peacefully, is adhering to ‘right’ binding. (iii) opens a complex debate concerning which abilities one must have to respect rights, which I will bracket in this paper; as I argued elsewhere (Neuhann 2020a: 243–249), Fichte’s account (regarding iii) is not very demanding (cf. Tömmel 2023).
In the contemporary discussion, Griffin is a proponent of the ‘orthodox’ view. The above quote reveals an important feature of it, namely that the post-World War II understanding of human rights is continuous with the ‘rights of man’ from the 18th century (Griffin 2013 [2008], ch. 1). For the most famous rebuttal of this continuity thesis, see Moyn 2010. For a helpful discussion, see the ‘Introduction: From the Rights of Man to Human Rights?’ in Lacroix and Pranchère 2018. I endorse a version of the continuity thesis: a necessary condition for thinking that Fichte’s view is still interesting today. In section 3, I will spell out Fichte’s hybrid position in the debate between ‘orthodox’ and ‘political’ views.
Spelling out Fichte’s view of human nature in this sense would entail a reconstruction of Fichte’s entire philosophy (Wissenschaftslehre) which has as its aim the reconstruction of the structures of human reason or subjectivity (the ‘I’). This, of course, goes far beyond the scope of this article. For the context of this article and the right to bodily inviolability in particular, it would be especially worthwhile to examine Fichte’s peculiar understanding of sensuality as an internal limitation of practical reason, rather than something that is simply opposed to reason (cf. Cesa 1990: 474). Since Fichte continuously revised his Wissenschaftslehre, the relevant texts to consider for Fichte’s understanding of (practical) reason are the ones he wrote before the FNR, i.e. Foundation of the Entire Wissenschaftslehre (1794–5, GA I,2: 173–451), in particular the third part, and the unpublished manuscript Practische Philosophie (GA II,3: 181–266).
Note that Fichte explicitly distances himself from ‘the [standard] sense often given to that term [natural right]’ (FNR: 132; GA, I.3: 432).
That Fichtean human rights are not moral does not imply a position on the question whether there are moral rights for Fichte at all; I remain agnostic here. Cf. Nomer 2020.
One could also pursue a historical justification for why ‘original rights’ should be regarded as human rights, namely because Urrechte and Menschenrechte were used more or less interchangeably in Fichte’s context. Some evidence for this is provided in the works concerning natural right by Karl Heinrich Heydenreich (System des Naturrechts nach kritischen Prinzipien, 1794) and Theodor Schmalz (Das reine Naturrecht, 1792): ‘Das absolute Naturrecht entwickelte aus dem Begriffe der Persönlichkeit des Menschen, ohne alle weitere Voraussetzung, ein System von Rechten, welche dem Menschen ursprünglich, und ohne eine nothwendige Dazwischenkunft einer Handlung zukommen, welche demnach auch vollkommen richtig Urrechte der Menschenheit, ja in der That angebohrne Rechte der Menschheit genannt werden können.’ (Heydenreich 1794: 209); ‘Welche Partey man auch ergreife, ob man glaube, die Repräsentanten jener großen Nation haben die Verfasung ihres Staats wirklich auf die Urrechte der Menschheit zurückgeführet, oder ob man glaube, gerade das Menschheitsrecht erfordere, dass derjenige, welcher im Staat eine Stimme führe, mehr habe, als feine Person; so würde man doch das Bedürfnis einer genauen Prüfung jener Urrechte fühlen.’ (Schmalz 1792: 5, emphasis removed) While it is likely that Fichte was familiar with both works, we can only be sure regarding Schmalz (see GA, I.1: 261, 267). Thanks to James Clarke for pointing me to these texts.
See: ‘But what does being free mean? Evidently, it means being able to carry out the concepts of one’s actions.’ (FNR: 48; GA, I.3: 357).
See Kosch 2021 for a detailed reconstruction.
Kosch calls this a strategic situation (2018: 97, fn. 72).
To be sure, FRE does not exclude the normativity feature (but it is not necessary for FRE).
This fits Kosch’s interpretation that Fichte’s asymmetrical concept of the summons (Aufforderung) that is also introduced in the second theorem is an individual ‘move’ in FRE (Kosch 2021: 2).
For example, I take the kind of equality Fichte is concerned with in §6 (Fifth Theorem, VII,
Cf. ‘If a million human beings exist alongside one another, each individual may very well will for himself as much freedom as possible. But if the will of all were to be united into one concept as in one will, this will would divide the sum of possible freedom into equal parts, with the aim that all would be free together […]’ (FNR: 98; GA, I.3: 400). On this passage, see Kosch 2018: 104.
By stating that ROR consists in stable FRE over time, I am questioning that Fichte’s argument from the second to the third theorem constitutes a strict transcendental argument. In my view, Fichte thinks that FRE is possible without ROR (and therefore ROR is not a strict condition of possibility of FRE), but that FRE is best and most sustainably achieved through ROR. For a discussion of the transcendental nature of the arguments in the deduction of the concept of right, see Clarke 2014 and 2020a.
Here the translator inserted the German terms in brackets, whereas I added Leib in the previous quote.
The paragraph where the original rights are formulated (see quote above).
In most cases this will mean that the right to the preservation of the Körper will be included in the (more demanding) right to leibliche inviolability. However, I leave open the possibility that the aim of protecting the Leib might in some cases include a violation of the Körper. For example, not interfering with a hunger strike or the legal permission of medically assisted suicide could be thus construed.
Note that Fichte here uses Körper rather than Leib. To be precise, in the German original the pronoun ‘ihm’ refers back to ‘Körper’ in the previous sentence: ‘Aber der beschriebene Körper soll ihre freien Handlungen enthalten […]. Unmittelbar durch ihren Willen […] müßte sie in ihm das gewollte hervorbringen […].’ (my emphasis). However, this occurrence of ‘Körper’ is before Fichte introduces the distinction between Leib and Körper at the end of §5 as a result of the remarks made in this paragraph: ‘Ein Körper, wie der beschriebene […] ist dasjenige, was wir unsern Leib nennen […].’ (GA, I.3: 365; FNR: 58, already quoted above). It is therefore still warranted to think that what Fichte says about the human body in these passages is about the Leib.
The presupposition is stated here: ‘[…] just as certainly as the person posits himself as free, so too must he posit himself as enduring [als fortdauernd].’ (FNR: 55; GA, I.3: 363). Fichte does not provide a justification for this presupposition, but it seems plausible to assume that the locus of free action must outlast at least two actions.
On the term ‘organ’ in Fichte’s time, see Bisol 2011: 68, fn. 3.
This introduces a complication regarding the relation between the organisation and articulation of the human body and how this distinction relates to the one between Leib and Körper. As Abazari notes, in SoE Fichte makes the former distinction, where articulation refers to the intentional determination of the body and organisation to how it is biological assembled (Abazari 2022: 5). Abazari further claims that organisation corresponds to Körper and articulation to Leib (ibid.). This is in tension with the proposal that ‘organ’ as it is used in the higher and lower organ of the Leib must be understood in the sense of ‘organisation’.
For this suggestion, see: Bisol 2011: 71. It does not match Bisol’s previously mentioned position that organ refers to the entire organisation of the body.
Apart from Bisol, also cf. Lauth 1984: 150ff. and De Pascale 2003: 205ff. on the higher and lower organ.
A further question is whether Fichte’s account would allow for consensual violent behaviour to count as an instance of FRE (e.g. sadomasochism). When introducing the concept of FRE in section 1, I distinguished three features of this kind of interaction: 1. Non-violence (1.1 Voluntary participation and 1.2 Non-violent mechanism of interaction) and 2. Mutual influence of goals of action. With regard to a consensual sadomasochistic sexual practice, 1.1 is fulfilled but both 1.2 and 2 are not fulfilled. Therefore, such a practice itself cannot count as an instance of FRE. However, it seems plausible that on the basis of stable relations of FRE, consensual violent relations may be permissible if they constitute exceptions from FRE that all participants may end unilaterally (think of codewords used in sadomasochism).
A third reason one could invoke against a concretist interpretation is that the higher and lower organ are simply features of the Leib and therefore cannot directly correspond to particular parts of the biological body. This, however, raises the crucial and difficult question how Körper and Leib relate. This issue would have to be addressed by any further investigation into Fichte’s theory of the body.
This parenthesis, in fact, adds complication. In what way is the higher organ exclusively (perceptive) ‘sense’ as Fichte claims the entire human Leib to be (see above)? And in what way is it a tool by which to realise actions in the world (articulation)? The body must have both abilities, but it is not completely clear how they relate in Fichte’s view and which ability the ‘higher organ’ refers to. Note that I have referred to the first original right as the right to bodily inviolability. However, note that in Fichte’s own formulation both the (negative) ‘inviolability’ and the (positive, active) ‘freedom’ of the body are mentioned (cf. again FNR: 108; GA, I.3: 409).
A full development of this interpretation would have to consider the influence of Kant’s distinction between a higher and lower Begehrungsvermögen on Fichte and his peculiar interpretation thereof (see GA II,3: 184ff.). This would be a part of spelling out Fichte’s view of the nature of human reason (cf. fn. 21). A further context to explore would be the concept of the ‘moral organ’ that was in circulation in Fichte’s time and might have been an inspiration for the ‘higher organ’. The term moral organ (originally: ‘organe morale’) stems from Frans Hemsterhuis (1721–1790). Roughly, the moral organ represents the human ability to perceive and engage with the spiritual dimension (‘la face morale’) of the world (cf. Hemsterhuis 1809 [1772]: 187ff. and the entry ‘Hemsterhuis’ “Organe moral”’ in Mauthner 1923.). Interesting (with regard to Fichte’s view that the mechanism by which FRE occurs is ‘by concepts’) is Hemsterhuis’ insistence that as the eye needs light to function, the moral organ needs ‘des signes communicatifs’ (ibid. 192). Thanks to Emir Yigit for the reference to Hemsterhuis.
What Fichte here calls ‘absolute right’ concerns the underlying content of both original rights. While the content of this right is surely important for realising humanity (as I argue the two distinct original rights are), architectonically this right should not be confused with the meta-right to have rights (see section 1).
Cf. James 2014: 353 (esp. fn. 10) and James 2016: 184ff. for the suggestion that Fichte’s idea of original right resembles Hobbes’s concept of a natural right to do everything in the state of nature (also see Picardi 2022: 118). While James acknowledges that Fichte’s conception differs from Hobbes’ in that Hobbes is concerned with self-preservation (and the freedom to do everything to reach it) and Fichte with the expansion of freedom simpliciter (James 2016: 188f.), he emphasises the similarity in terms of the unlimited (or absolute) character of the respective rights and the need for an explicit action to renounce them (ibid.). While my reading of Fichte’s original rights contradicts the idea seemingly implied by James’ view that original rights place no limits on possible rightful relations between persons, I endorse the view that original rights are indeterminate in the sense of allowing for different forms of institutionalisation. See esp. section 3.
‘[…] the highest and universal end of all free activity is to be able to live.’ (FNR: 185; GA, I.4: 22).
In fact, since, as I mentioned above, all human activity is, according to Fichte, in some mediated sense related to being able to live, the distinction between free activity and labour as a specific type thereof becomes blurry.
Substantially, a minimal ROR is equivalent to FRE; it is not an egalitarian relation. A minimal ROR must, however, also exhibit the feature of ‘normativity’ that I ascribed to a full ROR. Cf. Kosch 2018: 123f. on Fichte’s view that ‘right’ may be realised to different degrees.
On this passage, cf. Picardi 2022: 114.
If someone, however, is unable to live despite having tried ‘everything he can in order to be able to live’, fellow citizens are obliged ‘to contribute to […] assistance’ (FNR: 187; GA, I.4, 23).
Note that Fichte’s proclamation of a right to work broadens his human rights perspective to one including ‘second-generation’ rights (Nomer 2005).
Note that this case is distinct from the one Fichte discusses under ‘right of necessity [Nothrechte]’ (FNR: 220; GA, I.4: 53). In the above example, the life of one person is in tension with the property right of another; in the context of the right of necessity two lives are at stake.
Consider the legal instrument of Rechtfertigender Notstand in Germany and that the Universal Declaration of Human Rights includes rights pertaining to the procedures of criminal charges (articles 9, 10 and 11).
Other procedural violations of original right might be cases of manipulation or nudging.
This line of criticism is further developed by Agamben 1998 [1995] and Rancière 2004.
On the fruitfulness of Fichte’s account of the body for a contemporary account of human dignity that emphasises persons’ vulnerability, see again Bernstein 2015: 281–286.
In Kosch’s (2018) interpretation, this criterion is maximising independence: we should pick those goals of action that (if realised) would contribute most to our independence.
On this puzzle, also see: Kosch 2017: esp. 1 and 15.
For an exploration of Fichte’s notion of humanity, see Kosch 2023.
I disagree with Picardi, who claims that the subject of the ‘one true human right’ must already be seen as a person in Fichte’s sense of the term (2022: 117).
In this context, Clarke (2014) argues that persons have a ‘prudential’ obligation to respect others’ original rights even without institutionalisation (251).
See Neuhann 2020a: 252–259 for more on the normativity of meta-rights.
Note that the legal good that is supposed to be secured by German sexual criminal law is, in fact, Sexuelle Selbstbestimmung (sexual self-determination). Philosophically, I believe it makes sense to regard sexual self-determination as a specification of bodily inviolability in Fichte’s sense.
On the enigmatic character of the subject of human rights: Rancière 2004.
Kosch 2021 convincingly argues that this must be the case, because Fichte sees Erziehung as an instance of FRE and holds that children do not have rights (see esp. p. 230).
See: ‘[…] that […] rational beings must continue to influence the subject of self- consciousness in a rational manner, is not thereby posited […].’ (ibid.). Fichte also claims that whether someone continuously stands in relations of FRE is dependent on ‘his own free choice’ (ibid.; GA, I.3: 386). Attributing the ability of free choice to someone, in turn, depends on their personhood or simple practical self-consciousness.
By moral agent I am referring to a person who usually acts morally because of engaging in the right kind of reflection regarding the choice of their ends of action. Cf. note 59.
Similarly, see Clarke 2016: 70f.
See Clarke 2020b, esp. 446, who holds that Fichte helps us think out of the box regarding common distinctions between legal positivism and moral or natural law accounts of rights.
The way these features are exactly understood, however, is different: Müller (2017) sees i) as a form of ‘moral grounding’ (60), whereas Fichte’s deduction is non-moral, and the type of cooperation Müller has in mind is more demanding than FRE (ii).
The distinction between ‘external’ and ‘internal’ is taken from Müller 2017.
