The Science of Rights/Preface

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

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

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

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

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

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

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

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

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

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

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

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