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

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162 university of ottawa law & technology journal www.uoltj.ca 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.
(2008) 5:1&2 UOLTJ 141 <strong>Commentary</strong> on Fichte 163 necessity, and therefore deducible a priori from moral principles. Indeed, Fichte emphasises that the plagiarist is not merely violating a legal right of the author, but is in fact acting immorally: [It has universally] been acknowledged as contemptible to literally transcribe a work without naming the actual author, and we have labelled writers who do this with the dishonourable title of plagiarist. This disapproval does not relate to the intellectual poverty of the plagiarist, but to an amoral element in his behaviour. 95 9.2. The Originality of Ideas as Explicated in Fichte’s Epistemology As mentioned earlier, Fichte’s writings on epistemology shed light on his view in “Proof of the Illegality of the Unauthorised Reprinting of Books” that ideas bear the imprint of the author’s personality. These writings thus elaborate on a point which Fichte makes in passing in his article, namely, that it is the personal imprint of the author’s personality on the form she gives to her written work that grounds her property right in it. As Fichte explains in “Proof of the Illegality of the Unauthorised Reprinting of Books,” learning involves the processing of foreign thoughts by drawing analogies between these thoughts and our own. But this process of analogising itself entails the recognition of the impossibility of taking up foreign thoughts precisely as they are presented. In other words, learning entails the recognition that a free and rational being exists outside of us upon whose freedom we cannot intrude. Let us look briefly at Fichte’s later epistemology to shed some light on the brief assertion in “Proof of the Illegality of the Unauthorised Reprinting of Books” that ideas are the unique expression of their author. It was Fichte’s view that “[i]t is the role of critical philosophy to show that we do not require a bridge [between the external and the internal]. Everything which appears in our minds can be completely explained and understood from out of the mind itself.” 96 Thus all of our knowledge of external objects is attributable, not to the effects of external things on us, but to the human sensible capacity. For Fichte, this sensible capacity in turn can be led back to the ego, the “I,” which itself is not empirically accessible, but which we can nonetheless come to know through intellectual intuition. 97 We intuit ourselves (our “I”), not separately as a datum of empirical consciousness, but rather as a necessary component of every sensible intuition. In Fichte’s words: [T]he philosopher discovers [. . .] intellectual intuition as a fact of consciousness. (It is a fact for him; for the original I it is an Act.) He does not, however, discover it immediately, as an isolated fact within his consciousness, but only insofar as he 95. Fichte, “Proof of the Illegality of the Reproduction of Books,” supra note 2 at para. 11 (emphasis added). 96. Johann Gottlieb Fichte, “Recension des Aenesidemus oder über die Fundament der vom Herrn Prof. Reinhold in Jena gelieferten Elementar-philosophie,” in Immanuel Hermann Fichte, ed., Johann Gottlieb Fichtes sämmtliche Werke (Veit & Comp., 1845/6); reprinted in Immanuel Hermann Fichte, ed., Fichtes Werke, vol. 1 (Walter de Gruyter & Co., 1971) at p. 15, quoted in Rohs, Johann Gottlieb Fichte, supra note 28 at pp. 43–44 (author’s translation). 97. Johann Gottlieb Fichte, “Second Introduction to the Wissenschaftslehre. For Readers Who Have a Philosophical System of Their Own,” in Daniel Breazeale, ed. and trans., Introductions to the Wissenschaftslehre and other Writings (Hackett, 1994) 36–105 at p. 44.
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