Commentary on Fichte's “The Illegality of the Unauthorised ... - uoltj

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Public’s Judgement of the French Revolution], he grounds law on the moral
recognition of human freedom. 88 Law is not just about permissible restrictions on
human freedom, but about how humans must act towards each other. In other
words, legal norms compel by their own necessity as do moral norms. Thus in this
early work, the law is not simply a series of rules that must obtain for the mutual
co-existence of free beings.
Frederick Neuhouser also notes the shift in Fichte’s thought from his
early works to a more Kantian separation between legality and morality in his
later works. 89 Fichte’s position prior to and during 1793 was that right could be
derived from morality. This meant, not that right could be derived in its totality
from morality, but that the natural rights that the individual possesses in virtue
of his humanity (i.e. human rights) are rights that the individual has because he
has a duty to obey moral laws. As Neuhouser puts it, “the obligation we have to
respect the natural rights of others is itself a moral one. It is not derived from the
consent of freely choosing individuals but is grounded in our nature as rational
beings capable of moral autonomy.” 90
A second way in which morality and legality are linked in Fichte’s early
works, according to Neuhouser, is that the state has the obligation to ensure that
individuals have the tools necessary to realize their nature as morally autonomous
beings. In particular, this means that state must provide an education (Bildung)
that is able to “transform the natural desires and inclinations of citizens in such
a way that their reformed sensibilities are consistent with and serve the ends of
morality rather than standing in opposition to those ends.” 91
We thus see that, for the early Fichte, the continuity of right and morality
means that the ends of the law are the same as those of morality. Both the political
state and the individual as a moral being must act to facilitate the realization
of human existence as a morally autonomous existence. 92 A distinction remains,
however, between political and moral theory, in that the former deals with the
social structures and institutions that must be in place in order to realize moral
autonomy, while the latter deals with the conditions and principles that must
obtain in order for an individual to act morally. 93
It thus becomes clear that the whole argument in “Proof of the Illegality
of the Unauthorised Reprinting of Books” is premised on the continuity between
morality and the law that characterises Fichte’s early work. From the outset,
Fichte argues that the right to property is necessary, requiring no proof. 94 The
institution of property is thus not contingent on the coexistence of free human
beings interacting with each other, as is the case for Kant. Rather, it is a moral
88. Luc Ferry, “The Distinction between Law and Ethics in the Early Philosophy of Fichte,” (1988) 19:2–3 The
Philosophical Forum 182–196 at p. 185. See also Alexis Philonenko, Théorie et Praxis dans la pensée morale
et politique de Kant et de Fichte en 1793 (Vrin, 1968) at p. 115; and Daniel Breazeale, “‘More than a Pious
Wish’: Fichte and Kant on Perpetual Peace,” in Hoke Robinson, ed., Proceedings of the Eighth International
Kant Congress (Marquette University Press, 1995) 943–959, for a discussion of the shift in Fichte’s thought
during this period.
89. Frederick Neuhouser, “Fichte and the Relationship between Right and Morality,” in Daniel Breazeale and
Tom Rockmore, eds., Fichte: Historical Contexts/Contemporary Controversies (Humanities Press, 1994) 158–
180 at p. 158.
90. Neuhouser, “Fichte and the Relationship between Right and Morality,” supra note 89 at p. 160.
91. Neuhouser, “Fichte and the Relationship between Right and Morality,” supra note 89 at p. 161.
92. Neuhouser, “Fichte and the Relationship between Right and Morality,” supra note 89 at pp. 161–162.
93. Neuhouser, “Fichte and the Relationship Between Right and Morality,” supra note 89 at p. 162.
94. Fichte, “Proof of the Illegality of the Reproduction of Books,” supra note 2 at para. 5.