by Jamie Jensen

J. G. Fichte set out to examine the nature of rights in Foundations of Natural Right. Although he published Foundations in 1796-7, after both the American and French Revolutions (1) , he examines the nature of rights much more cautiously than does the Declaration of Independence or its French counterpart, the Declaration of the Rights of Man. Fichte often refers to "relation of right" (111). This wording suggests the older understanding of rights as proper conduct-meaning conduct that respects others' rights. Rather than claiming that certain rights are owed to people simply because they are human beings, Fichte posits that rights must be acknowledged in order to exist. Frederick Neuhouser, editor of Foundations, explains Fichte's understanding of rights, which Fichte equates with freedom, as follows:

[P]ositing the existence of other rational beings requires thinking of oneself as standing in a particular relation to them, a relation that turns out to be the 'relation of right.' The argument behind this claim is that in order to be conscious of myself as a free individual, I must be able to distinguish my own free agency from that of the other subjects whose existence I necessarily posit (as established in §3). According to Fichte, this requires 'ascribing exclusively to myself a sphere for my free choice' (§4, II), a sphere to which other free beings have no access. But, given that I share the external world with other free beings, this is possible only if my individuality is recognized by those beings as setting limits to their own free agency. (And the same, of course, is required of me in relation to them if they are to attain consciousness of themselves as free individuals.) This recognition is more than just a theoretical acknowledgement of my status as a free being; it also requires that I be treated as such by other subjects or, in other words, that my free agency acquire a real and protected existence in the external world. But this is nothing more than the requirement that I possess a set of rights that are respected by others, which Fichte means by 'standing in relation of right' to other rational beings. (xvi)

Because two or more people acknowledge that each of them has certain rights, they each restrict their freedom so as not to violate the others' freedom. That which they agree not to violate is the "sphere to which no other beings have access." Thus they stand in "relation of right."

An issue to be resolved in the above passage is whether rights exist before they are acknowledged. The passage only explains what must happen for an individual to become conscious of her rights. It does not say whether or not they exist prior to that recognition. Neuhouser resolves this issue in the following explanation: "Fichte concludes … that the freedom of one subject (which includes consciousness of its freedom) requires the existence of others; free individuality is possible only in relation to other subjects …" [emphasis added] (xvi). Fichte focuses on the functional rather than the theoretical, although he gives due consideration to the theoretical for the sake of thoroughness (as will be seen later in his examination of original rights). Fichte points out that freedom, or rights, is not an issue for a person in solitude. Freedom can only be violated by another free being, and so it is useless to speak of freedom in solitude (Fichte 105). Essentially, freedom does not exist in solitude because it is not in danger of violation. Thus freedom only exists in relation to others and depends on their recognition and respect of that freedom. Ideally, a free being would interact with another free being and thus come to the realization of her own freedom. Under those conditions, rights do exist. However, in the case of a tyranny, people might be oppressed to the extent that they are unaware of any freedom. Everyone they would interact with would be equally oppressed, and thus they would never realize their freedom. According to Fichte, if they do not realize their freedom, they do not have that freedom, which means they have no rights. In this circumstance, Fichte appears to concur with Hobbes that "[t]he right of nature … is the liberty each man hath to use his own power …" (Hobbes xiv). In the proposed tyranny, only the tyrant would be aware of his freedom. Since his subjects would have no rights that would inhibit him, his oppression toward them would be entirely within his rights.

Fichte's position that freedom only exists when recognized obviously conflicts with the ideals stated in the American and French Declarations. Fichte cannot agree that "all men … are endowed by their Creator with certain unalienable Rights," as stated in the Declaration of Independence. Once rights are established, perhaps Fichte would agree that they are unalienable at that point. But the rights are not something "endowed by [a] Creator," they are something created by man. Let us now examine the conditions that brought about the American and French Revolutions and the ideals they upheld.

The leaders of the American Revolution "drew inspiration from three intellectual traditions" (Henretta IV.B). These three are English common law, Enlightenment philosophy, and the English political tradition. These three sources established a frame of mind for the American people that they were owed certain rights, simply because of their human nature. Thus, when they felt that those "unalienable rights" were being violated, they revolted against the injustice (IV.B).

Since America was colonized under the English, the ideology of English common law was integrated into their way of life. It had evolved since the 12th century, so it was a deeply established tradition by the time of the American Revolution. The term "common law" refers to unwritten law, meaning it is "based on the principle of deciding cases by reference to previous judicial decisions, rather than to written statutes drafted by legislative bodies" (Wales II). The purpose is "to arrive at a fair and equitable result" (II). Therefore, "common law retains a dynamic for change" (II). Common law embodies the ideal of ensuring the highest justice by considering each case individually and allowing for the possibility of unforeseen circumstances that could not be sufficiently provided for in a pre-established law. The philosophy of common law contributed to the American Revolution because the revolutionaries determined that their circumstance required an exception to be made regarding obedience to the head of the state. As stated in the Declaration of Independence, they believed that "whenever any Form of Government becomes destructive of these ends [i.e., "Life, Liberty, and the pursuit of Happiness"], it is the Right of the People to alter it to abolish it." English common law encourages free thinking and continual evaluation of the applicability of traditional customs to current circumstances. Thus it contributed to the American Revolution.

The Age of Enlightenment, occurring in the 18th century, also proved a major contribution to the American Revolution. Enlightenment philosophy supplemented the free thinking upheld by English common law. The foundation of this philosophy is "faith in the human power of reason" (Tackett). "A desire arose to reexamine and question all received ideas and values, to explore new ideas in many different directions" (Tackett). Thus the Enlightenment advocated challenging authority. People were encouraged to use their own powers of reason, rather than trusting tradition or a so-called superior. "Many of them followed 17th-century English philosopher John Locke in believing that all individuals possessed certain 'natural rights'-such as life, liberty, and the pursuit of property-and that it was the responsibility of government to protect those rights" (Henretta IV.B). The American revolutionaries felt that these natural rights had been denied to them by the King of England and thus, in keeping with Enlightenment ideals, denied his right to authority over them and established a new government that would uphold their ideals.

The third ideological source of the American revolution was English political tradition. The English had been attempting to restrict the king's power since the Magna Carta in 1215. This pioneering document "establishes the principle that no person, not even the king, is above the law" (Tabuteau III). Before the Magna Carta, the king had absolute power over his subjects and was not bound by law. More recently, however, the English Whigs "resisted the arbitrary power exercised by the Stuart kings before 1689" (Henretta IV.B). They "sought to limit the authority of the Crown and to increase the power of Parliament" (IV.B). This event, occurring less than a century before the American Revolution, bears more relevance to the revolutionaries' mindset. They were aware that relatively recently in history the English monarchy was found oppressive and that the people rebelled against it and succeeded. The American revolutionaries likewise found the monarchy oppressive and took their rebellion further, claiming no obligation whatsoever to the authority of the king. The Whigs' success in their rebellion must have encouraged the revolutionaries to expect success in their greater ambition. And, indeed, their expectation was met. Thus it is clear that English political tradition contributed ideologically to the American Revolution and perhaps even suggested it.

Based on the above analysis of the ideological sources of the American Revolution, we can see that Americans were firmly rooted in a mind frame that demanded certain rights to be observed. As stated in the Declaration of Independence, when people find that they are subject to tyranny, "it is their right, it is their duty, to throw off such a Government [emphasis added]." The concept of "unalienable rights" was so deeply rooted in the Americans' minds that they felt the only natural action-indeed, their duty as a free-thinking people-was to revolt. They believed that they as human beings were owed certain rights and a denial of those rights merited and demanded retributive action.

The French Revolution also involved the idea that the people's natural rights had been violated. Consequently, the Declaration of the Rights of Man was established to "set forth in a solemn declaration the natural, unalienable, and sacred rights of man." However, the causes of the French Revolution were very complex and are not universally agreed upon. Formerly, the Revolution was attributed to the bourgeoisie becoming intolerant of the restrictions placed on their social and political advancement (Kaiser II). However, "it is now commonly believed that the revolutionary process started with a crisis in the French state," namely, the fiscal crisis of the late 1780s (II, II.B). France was largely in debt, due to its participation in "a series of costly wars-the War of Austrian Succession (1740-1748), the Seven Years' War (1756-1763), and the American Revolution (1775-1783)" (II.B). The government managed the debt poorly, thus contributing to the people's loss of allegiance (II.B-D). However, the fiscal crisis was merely the culmination of an ongoing dissent. "[The French people] resented the rising and unequal taxes, the persecution of religious minorities, and government interference in their private lives. These resentments, coupled with an inefficient government and an antiquated legal system, made the government seem increasingly illegitimate to the French people" (II). Basically, the French government was setting itself up for a revolution.

Despite the multifaceted cause of the French Revolution, its ideology was similar to the American Revolution. The parlements, "13 regional royal courts led by the Parliament of Paris," were a central source of dissent (II.A). "In widely distributed publications, they held up the image of a historically free France and denounced the absolute rule of the crown that in their view threatened traditional liberties by imposing religious orthodoxy and new taxes" (II.A). Thus the French, too, demanded the unalienable rights that the Americans had fought to uphold just a few years earlier. The French had a different context of thought than did the Americans because English common law and political tradition had no bearing on them. But they still upheld the ideals of the Enlightenment. Indeed, with philosophers such as Montesquieu, Diderot, Voltaire, and Rousseau, France was in many ways the "homeland" of Enlightenment philosophy (Tackett). Thus, both the French and the Americans were conditioned to demand rights they felt were owed to them.

Although Fichte lived in the midst of all these events, he applied rigorous philosophical method to the proposition of unalienable natural rights and found it to be ungrounded. In Foundations of Natural Right, Fichte examines what rights humans can have inherently, from birth, and calls them "original rights." (102). Original rights are similar to natural rights; but the former, while in place initially, are subject to change based on external conditions (104-105), whereas the latter are fundamental to the human being and cannot be changed. Fichte concludes the following: "There is no condition in which original rights exist…. The human being has actual rights only in community with others…. An original right, therefore, is a mere fiction, but one that must necessarily be created for the sake of a science of right" (102). Actual rights are rights in existence. In contrast, original rights are a mere concept. They are used for comparison in order to better understand the situation existing in reality. Recall Fichte's observation that rights cannot exist in isolation for they are in fact defined as a relationship with other free beings. This idea is again expressed here in the statement that "[t]he human being has actual rights only in community with others." This is why Fichte concludes that original rights are "a mere fiction."

Neuhouser remarks of the above passage the following:

The assertion that human beings have no original rights must be understood to mean, at least, that in a state of nature original rights cannot be reliably enforced. Beyond this, Fichte might also be espousing the Hobbesean view that outside a state-in the absence of a sure guarantee that rights will be enforced-original rights do not give rise to genuine obligations to respect the freedom of others. (102)

Neuhouser offers a conservative interpretation of Fichte's statement. He suggests that the existence of a right does not necessarily include the obligation to respect that right, but he does not address the implications in Fichte's argument that original rights do not exist at all. Fichte calls rights "a mere fiction" that is "created for the sake of a science of right" (102). This implies that original rights are a human invention, not something inherent in a person. Neuhouser merely says that original rights cannot be put into practice because of the problem of enforcing them. However, a bolder interpretation than Neuhouser's would not ignore what Fichte plainly says: original rights are an invention, not real, thus rejecting the statement in the Declaration of Independence that men are "endowed by their Creator" with rights.

Neuhouser's conservative approach to interpreting Fichte is well merited. Fichte's indications regarding the nonexistence of inherent rights are few and rarely emphasized where they ought to be for clarification. More prevalent in Foundations of Natural Right is Fichte's deduction of what rights entail once they exist. This imbalance may perhaps be attributed to Fichte's emphasis on the functional over the theoretical. He sees the concept of rights in isolation as absurd since he defines rights in terms of relation to others. Moreover, Fichte's main objective in Foundations is not to show that rights are created by man, but rather to outline the structure of a government that would ensure right relations among everyone. Neuhouser states that one of Fichte's main aims in the book is to show that rights are "not an arbitrary human invention but a necessary idea that has a source in reason itself" (ix). Rights are a human invention, but not an arbitrary one. The existence of an orderly and just society depends upon establishing right relations among everyone, as Fichte explains in detail in other parts of the text. Due to the wider scope of the text, Fichte's observation that rights are a human invention becomes overshadowed.

Neuhouser notes the imbalance and some apparent contradictions in Foundations, remarking, "Indeed, it could be argued that [the text's] principal value resides in a few scattered strokes of brilliance rather than in its project as a whole" (xi). Neuhouser recognizes that Fichte's observations imply that rights are indeed a human invention, but he dismisses it as an inconsistency due to Fichte's later treatment of rights as a definitively defined entity (xix). Doing so, however, Neuhouser ignores Fichte's emphasis on the functional. Fichte's view of rights as a definitively defined entity comes from his rigid understanding of a society that functions in accordance with "relation of right." He claims that people can live peaceably and in respect of each other's rights only when those rights are defined in a specific way. Therefore, although his wording may at times contradict earlier statements, as Neuhouser points out in several instances, Fichte's core ideas remain consistent when analyzed in relation to each other.

Thus Fichte transcends the thought of his time and rejects the philosophy that "all men … are endowed by their Creator with certain unalienable rights." Although he was a supporter of the French Revolution, and presumably of the American Revolution, and indeed opposed tyranny, he does not accept that rights are inherently granted to all human beings. Rights are a human invention, though they are no less valuable for it. Fichte would not see the American and French Revolutions as people fulfilling a duty to uphold their "unalienable rights"-at least not retrospectively from the time he wrote Foundations. Instead, he would see the Revolutions as instances of people asserting the rights that they established for themselves. They do not have a "duty" to abolish a tyrannical government, but if they do so and establish a new government based on respect for everyone's freedom, then they can finally live in "relation of right."

ENDNOTE

(1) The American Revolution (1775-1783) was completed by the time Foundations was published. The French Revolution (1789-1799) was near completion, but did not officially end until two years after the publication of Foundations (Henretta, I, Kaiser I).

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