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ABSTRACT
This paper uses a distinction drawn from the Kantian legal theorist Paul Johann Anselm Feuerbach to categorize two approaches to analysing the concept of right, each of which is represented by various figures in early post-Kantianism. Feuerbach’s distinction holds that there were two main strategies for conceiving of the relation between right and morality and the structure of rights. He refers to these two conceptions as ‘relative’ and ‘absolute’ deductions from the moral law. One key contribution of my paper consists of the reconstruction of historical examples of each kind of argument, along with some ‘hybrid’ accounts. Figures discussed include Feuerbach, Heydenreich, Reinhold, Fichte, Hufeland, and Erhard. In light of this historical reconstructive work, I argue that Fichte’s 1796 arguments against absolute deductions face a previously unnoticed dilemma: either the arguments assume a premise I will call the mere permissions principle, which causes tension with a central commitment of Fichte’s theory of property in FNR; or the arguments do not assume the mere permissions principle, in which case they are not sufficient to rule out the possibility of hybrid views that give a more limited role to absolute moral rights.
KEYWORDS:
Acknowledgements
This paper has had a very long history. For comments and discussion of distant ancestors of the current version, I thank audiences and workshop participants at the following events: a workshop on “Right and Morality” at Humboldt-Universität, Berlin, April 2018; a talk at Yale’s Modern Philosophy Workshop, November 2016; and a workshop at the Pittsburgh Area Philosophy Colloquium, Washington and Jefferson College, September 2013. In addition, I thank the following individuals: Jessica Pfeifer, Steve Yalowitz, Whitney Schwab, Sonny Elizondo, Fred Neuhouser, Paul Franks, Paul Guyer, Jason Yonover, Gabriel Gottlieb, four anonymous referees, and anyone else I have forgotten. Lastly, special thanks to James Clarke for extremely useful comments and discussion on the final version of the paper.
Notes
1 For the remark about practical reasons’ “juridical capacity” (see Kritik, 244).
2 On Kant, see, for example: Willaschek, “Right and Coercion”; Guyer, “Kant’s Deductions of the Principles of Right”, and Wood, “The Final Form”. On Fichte, see, for example: Kersting, “Die Unabhängigkeit des Rechts von der Moral”, Nomer, “Fichte’s Separation Thesis”, James, “Conceptual Innovation in Fichte's Theory of Property” and Kosch, “Individuality and Rights in Fichte’s Ethics”.
3 It is remarkable how many authors of German-language texts on natural right during the 1790s begin their treatises with remarks on the historical significance of recent ‘events in France’, and then state that these events make it especially important to give the theory of natural right secure philosophical foundations. For discussion of some of the connections these writers perceived between the French Revolution and Kant’s critical philosophy, see Morris, “The French Revolution”.
4 Wolfgang Kersting’s important 1982 article “Sittengesetz und Rechtsgesetz. Die Begründung des Rechts bei Kant und den frühen Kantianern” covers similar historical and conceptual terrain, although the systematic point he makes using this material differs from mine.
5 This article would likely have been known to Fichte, as he had become Niethammer’s colleague in Jena in 1794, and was involved in the Philosophisches Journal from its inception in 1795, becoming a co-editor in 1796. Daniel Breazeale discusses Fichte’s involvement with the Philosophisches Journal in his 1988 Introduction. Richard Schottky (Untersuchungen zur Geschichte, 316) regards the claim that Feuerbach’s paper influenced Fichte as “very well possible”, but not conclusive. I agree.
6 For statements of the distinction, see Feuerbach’s discussion and footnote at “Versuch”, (140), as well as Kritik des natürlichen Rechts (92–93). For discussion, see Schottky (Untersuchungen, 311–312), and Coves (“Wahlverwandschaften zwischen Fichtes”, 64–65).
7 See, e.g. Kritik des natürlichen Rechts (11–12).
8 Fichte’s 1796 deduction of the concept of right is much closer to a Kantian transcendental deduction.
9 On the notion of “inner and necessary features [Merkmale]” and the definition of philosophical concepts, see Kritik (53). On the necessity of a vindication of the concept of right, see Kritik (24–27, 82–83). Salomon Maimon’s remark from his 1795 “On the First Grounds of Natural Right” expresses a similar understanding of the aim of a deduction of right: “This definition, however, is merely a nominal one and not a real definition, because one cannot see from it the mode of origin of natural right, indeed not even its possibility … By contrast, the definition given by me is certainly a real definition, in that it specifies the mode of origin of natural right from the moral law … ”.
10 On the practical and theoretical importance of the establishment of natural right as a science by providing a successful deduction of the concept of right, see Kritik (230–236).
11 In Section 51 of Hoffbauer’s 1793 Naturrecht aus dem Begriffe des Rechts entwickelt he writes: “Right (jus) means: the predicate that belongs to a subject insofar as a coercible obligation (to a positive or negative action) exists in relation to the same”. Hoffbauer’s view differs in significant ways from Heydenreich’s, but what is important here is that Hoffbauer follows the relative deduction strategy and analyses rights in terms of a prior notion of others’ duties.
12 The reference is to Heydenreich, System des Naturrechts (110). Heydenreich’s entire discussion from (109–116) is relevant.
13 Fichte advocates moral rigorism from 1795 on, most significantly in his 1798 System of Ethics. For a statement of moral rigorism from 1795, see Fichte’s notes on natural right, “Zur Recension der NaturRechte für das Niethammersche Journal” (405).
14 The example here is inspired by a case of Johann Benjamin Erhard’s from his 1795 text Über das Recht des Volks zu einer Revolution (12).
15 The fact that bilateral permissions are perspectival in this way leads one early reviewer of Heydenreich’s book to argue that, in Heydenreich’s system, bilateral permissions have no reality at all: “a permission, without one who is in and for himself permitted, is nothing” (Staatswissenschaftliche und Juristische Literatur 1794, 328).
16 Compare Kant’s “hindrance of a hindrance to freedom” argument at Metaphysics of Morals (AA 6:231).
17 The best analysis of Fichte’s 1793 view of which I am aware is Clarke, “Fichte’s Independence Thesis”. See also Merle (“Einführung”) and Kersting (“Die Unabhängigkeit des Rechts von der Moral”). Kersting calls the kind of morally-based argument Fichte pursues in 1793 a “deontic deduction” of right. See “Die Unabhängigkeit” (22) for the distinction, and (29) for discussion of Fichte’s argument in Beitrag as an instance of the deontic deduction. See also Kersting’s similar, earlier discussion in Kersting, “Sittengesetz und Rechtsgesetz” (151–152).
18 Cf. Clarke, “Fichte’s Independence Thesis”, 56.
19 See Feuerbach’s discussion of “syncretic” views at Kritik (209–229).
20 For more context about Maimon’s article, see Nance and Yonover, “Introduction”.
21 Erhard’s account of human rights in part I of Revolution may also be a disjunctive hybrid view. Erhard distinguishes at Revolution (31) between “the human rights … which belong to the single human being in himself” and those “that belong to him in relation with other human beings”. I suggest that these two kinds of human rights correspond to the absolute deduction and the relative deduction, respectively. For discussion of possible connections between Fichte and Erhard, see Coves, “Wahlverwandschaften zwischen Fichtes” and Renaut, “Fichte: le droit sans le morale?”.
22 For discussion of Hufeland’s view, see Gottlieb, “A Family Quarrel”.
23 I attribute the mere permissions principle to Heydenreich because rights, for him, are authorizations to coerce (see, e.g. 93–94 of System des Naturrechts), and he states that the authorization to coerce is a bilateral right, which therefore cannot be derived analytically from duty (100). Feuerbach also endorses the mere permissions principle at Kritik (84–85).
24 I understand ‘duty’ here to include both actions and omissions commanded by the moral law.
25 Compare Wood’s claim (Fichte’s Ethical Thought, 264–265): “Norms of ethics tell each of us what we ought to do. Norms of right do not, in the first place, tell me what I ought or not to do. Instead, they tell others what I may and may not be forced to do … ” To have a right is for others to stand in a certain normative relation to one’s actions, and, reciprocally, for one to stand in the same normative relation to these others’ actions. I take this to be at least part of the motivation for Wood’s claim that Fichte’s theory of right contains no duties. He also takes the concept of duty to be a specifically moral concept, and because the concept of right is not a moral concept for Fichte, there can be requirements of right but not duties.
26 I give more detailed accounts of the argument in Nance, “Fichte’s First Principle of Right” and Nance, “Recognition, Freedom, and the Self”.
27 Fichte already gives a sketch of the conceptual mis-match argument, including a statement of the mere permissions principle, in his 1795 review of Kant’s Perpetual Peace (223).
28 See Nance, “Property and Economic Planning”.
29 The first of these claims has been recognized by Clarke (“Fichte’s Independence Thesis”, 65). The idea that Fichte’s theory of property in FNR and CCS leaves little to no room for the exercise of arbitrary choice is recognized by James (“Conceptual innovation”) and by Fichte himself in the Rechtslehre of 1812 (Werke X: 535–536).
30 Erhard, Revolution, 24: “Freedom of thought and of conscience are the necessary conditions for enlightenment, and enlightenment is a duty for the human being”.