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

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of the literary work. This is clear from Fichte’s emphasis that the author has two
rights. The first is the right “to prevent anyone from completely denying the
author ownership of the form (i.e. to demand that everyone recognise her as the
author of the book).” The second is the right “to prevent anyone from taking
possession of her exclusive right in the form of the work and to make it their
property.” 104 An author is not merely the person to whom a particular expression
is attributed. She is also someone who is able to control the use of her words, i.e.
she is able to exert her right to property in them in her interaction with others.
From Fichte’s idea of mutual recognition, it necessarily follows that the
recognition of one author’s right in her work entails the respect of the right of
other authors in their works. Fichte’s discussion of the practice of attributing
direct quotations demonstrates that the process of publication necessarily entails
limiting one’s own property claims by not infringing those of others. Similarly, his
discussion of plagiarism emphasises that this process of mutual recognition is
not an empirical recognition of a particular other, but rather a general principle
underlying legality. A person is a plagiarist not merely because she copies the
works of known authors, but even when she copies from an anonymous work. 105
Legality thus involves the limitation of my rights by recognising the rights of
others, even if they are not present before me. Or as Fichte will later state, “I can
expect a particular rational being to recognize me as a rational being, only if I
myself treat him as one.” 106
As previously mentioned, the full articulation of Fichte’s theory of right
is not elaborated until his later works such as Foundations of Natural Right. In
this work, Fichte’s formulation of the nature of right is very similar to Kant’s in
the Metaphysics of Morals, though it appeared approximately six months before
Kant’s work. 107 Fichte’s formulation reads: “Every relation of right is determined
by this proposition: each person is to limit his freedom through the possibility
of the other’s freedom.” 108 It is a deduction of the concept of right from the
presupposition of intersubjectivity. 109 As we have seen, the condition for the
possibility of self-consciousness is consciousness of the other. 110 Furthermore,
the thought that every being is free requires that every person limit her freedom
to accommodate the freedom of others. 111 For Fichte, this relationship between
two free human beings defines the juridical relationship. 112 Thus in conceiving the
realm of her own freedom, the individual must necessarily take into account the
limits on this freedom imposed by the necessity of recognising the freedom of
others. 113
104. Fichte, “Proof of the Illegality of the Reproduction of Books,” supra note 2 at para. 9.
105. Fichte, “Proof of the Illegality of the Reproduction of Books,” supra note 2 at para. 11.
106. Fichte, Foundations of Natural Right, supra note 1 at p. 44.
107. Jean-Christopher Merle, “Eigentumsrecht,” in Jean-Christophe Merle, ed., Grundlage des Naturrechts
(Akademie Verlag, 2001) 159–172 at p. 161. See also the editor’s note in the Cambridge edition of Fichte’s
Foundations of Natural Right, supra note 1 at vii.
108. Fichte, Foundations of Natural Right, supra note 83 at p. 120: “Alles Rechtsverhältnis ist bestimmt durch
den Satz: jeder beschränke seine Freiheit durch die Möglichkeit der Freiheit des Anderen.”
109. Susan Shell, “‘A determined stand’: Freedom and Security in Fichte’s Science of Right,” (1992) 25:1 Polity
95–122 at p. 97.
110. Fichte points out that “the rational being cannot posit itself as a rational being with self-consciousness
without positing itself as an individual, as one among several rational beings that it assumes to exist outside
itself, just as it takes itself to exist.” Fichte, Foundations of Natural Right, supra note 1 at p. 9.
111. Fichte, Foundations of Natural Right, supra note 1 at p. 10.
112. Shell, “‘A determined stand’: Freedom and Security in Fichte’s Science of Right,” supra note 109 at p. 99.
113. Shell, “‘A determined stand’: Freedom and Security in Fichte’s Science of Right,” supra note 109 at p. 99.