Fichte and the Idea of Liberal Socialism

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Fichte and the Idea of Liberal Socialism*

Nedim NomerPolitical Science, Sabanci University, Turkey

ALTHOUGH relatively neglected today, Fichte was in fact a very influentialfigure at a critical point of intellectual history. He played a key role in the

evolution of Idealism and Romanticism in Germany. He also launched the claimthat true self-consciousness is attained only through interpersonal relations. Thisclaim put Western philosophy on a new course in the nineteenth century as itmoved beyond the Cartesian concept of mind and helped to explore the socialdimension of thinking. Moreover, Fichte’s idea of human subjectivity as self-positing activity laid the groundwork for Existentialism in the twentieth century.

My goal here is not to reiterate these recognized achievements of Fichte.1

Instead, I aim to add to the list of his innovations by focusing on a less familiaraspect of his work: his theory of rights. I will propose that this theory providesa link between the social contract theory tradition from Hobbes to Kant andnineteenth century socialism. Following the social contract theorists, Fichtebelieves that all human beings must enjoy certain inalienable rights, but he doesnot think that such rights can be identified by speculating as to how an isolatedindividual would think and act in a state of nature. Instead, he argues that ameaningful theory of rights must be responsive to the demographic and economicfacts of actual societies and address the material interests of both the advantagedand disadvantaged members of those societies. Therefore Fichte’s catalog ofrights is not limited to liberty rights, such as rights to private property and freespeech; it also includes “second generation” rights,2 such as rights to gainfulemployment and education. Thus Fichte believes that such rights would beincluded in the “social contract.”

The Journal of Political Philosophy: Volume 13, Number 1, 2005, pp. 53–73

© Blackwell Publishing, 2005, 9600 Garsington Road, Oxford OX4 2DQ, UK and 238 Main Street,Cambridge, MA 02142, USA.

*I am grateful for comments from Deanna Nass, Frederick Neuhouser and the referees of thejournal.

1I can mention here only some of the growing body of secondary literature on Fichte’s innovations:Allen Wood, “Fichte’s philosophical revolution,” Philosophical Topics, 19 (1991), 1–28; RobertWilliams, Recognition (Albany: SUNY Press, 1992), chs. 1–3; Frederick Beiser, German Idealism(Cambridge, Mass.: Harvard University Press, 2002), pp. 217–345; Daniel Breazeale, “How to makean Idealist: Fichte’s ‘Refutation of Dogmatism’ and the problem of the starting point ofWissenschaftslehre,” Philosophical Forum, 19 (1988), 97–123; Dieter Henrich, “Fichte’sursprüngliche Einsicht,” Subjektivität und Metaphysik, ed. D. Henrich and H. Wagner (Frankfurtam Main: Klostermann, 1966), pp. 188–232; Robert Pippin, “Fichte’s contribution,” PhilosophicalForum, 19 (1988), 74–96; Frederick Neuhouser, Fichte’s Theory of Subjectivity (Cambridge:Cambridge University Press, 1990), chs. 1–2.

2For an excellent discussion of “second generation” rights, see Jeremy Waldron’s Liberal Rights(Cambridge: Cambridge University Press, 1993), chs. 10, 12, 14.

Furthermore, while Fichte shares his predecessors’ appreciation of individualliberty, he supposes that such liberty is best protected by a political governmentthat assumes a significantly more active role than contemplated by earliertheories of social contract. This is because, according to Fichte, social andeconomic institutions by themselves cannot sustain harmony and equality amongcitizens, and governmental action is essential to ensure those ends. Fichte’s workwas therefore welcomed by German socialists, such as Ferdinand Lassalle, whoadvocated state socialism over the Marxian idea of stateless communism.3

In any event, Fichte’s theory of rights embodies propositions that speak toboth social contract theorists and socialists.4 There is therefore room for debatingwhether Fichte gave expression to the “culmination” of the idea of the socialcontract or is among the first socialists.5 In this paper I will not take a side inthis debate. Rather, I will deal with a more basic question: How, according toFichte’s theory of rights, are these two strands of thought to be reconciled? Thisquestion is important because some Fichte scholars have claimed precisely thatFichte does not achieve this task. That is, according to these scholars, Fichte’stheory of rights is confused because it lends itself both to a regime of privateproperty rights and to the “diametrically opposed” regime of collectiveownership (or something like it), which renders individuals normatively andpractically unable to contest governmental intervention.6

Our question is pertinent for a larger reason as well: if we can demonstratethe way Fichte reconciles “liberalism” with “socialism,” so to speak, then wewill not have to choose between them. Indeed, we could say that these schoolsof thought must not be treated as fixed and monolithic dogmas because they arein fact compatible.7 This is what I will try to achieve in this paper.

In what follows I will show that Fichte’s “liberal socialism” is best examinedin light of his distinction between two perspectives on individuality. The first

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3For an account of the development of German socialism in the nineteenth century, see CarltonJ. H. Hayes, “German socialism reconsidered,” American Historical Review, 23 (#1) (1917), 62–101.See also Marianne Weber, Fichte’s Sozialismus und sein Verhältniss zur Marx’schen Doktrin,(Tübingen: J. C. B. Mohr, 1900), ch. 2; and Karl Vorländer, Kant und der Sozialismus (Berlin: Reuther& Reichard, 1900), p. 14.

4Frederick Neuhouser makes a similar point in his “Introduction” to J. G. Fichte. Foundationsof Natural Right, trans. Michael Baur and ed. Frederick Neuhouser (Cambridge: CambridgeUniversity Press, 2000).

5The characterization of Fichte’s work as the culmination of the idea of social contract is OttoGierke’s. See his Natural Law and the Theory of Society, 1500 to 1800, ed. and trans. Ernst Barker(Cambridge, M.A.: Cambridge University Press, 1934). See also J. W. Gough, The Social Contract(Oxford: Oxford University Press, 1963), ch. 11. For the claim that Fichte is a socialist philosopher,see G. D. H. Cole’s Socialist Thought (New York: St. Martin’s Press, 1967), vol. 1, p. 223; andAlexander Gray, The Socialist Tradition (London: Longmans, Green, 1947), pp. 109–113.

6Hansjürgen Verweyen, Recht und Sittlichkeit in J. G. Fichtes Gesellschaftslehre (Munich: VerlagKarl Alber Freiburg, 1975), pp. 106–109; Ludwig Siep, “Naturrecht und Wissenschaftslehre,”Fichtes Lehre vom Rechtsverhältnis, ed. Michael Kahlo, Ernst A. Wolff and Rainer Zaczyk (Frankfurtam Main: Vittorio Klostermann, 1992), pp. 86–8; “Methodische und Systematische Probleme inGrundlage des Naturrechts,” Der Transzendentale Gedanke, ed. Klaus Hammacher (Hamburg: FelixMeiner Verlag, 1977) p. 300.

7This view is shared by Peter Vallentyne and Hillel Steiner, the editors of The Origins of Left-Libertarianism. An Anthology of Historical Writings (New York: Palgrave, 2000). Therefore I thinkFichte’s work could have been included in their anthology.

considers individuals in specific social and historical contexts.8 From thisperspective, to be an individual is to be one among many others, with beliefsand desires shaped by the time and place one lives in. Thus, individuality isunderstood in terms of a socially and historically situated unit of agency. Thesecond perspective on individuality is concerned with the nature of individuality9

rather than with individuals in specific settings. More precisely, the secondperspective is intended to reveal the essential or universal nature of the freedomthat is associated with individual agency as such. On Fichte’s account, the secondperspective is compatible with the first in that it helps to examine and assess thesocial, political and economic situations in which individuals find themselves. Indoing so, the second perspective establishes the possibility to live, and recognizeoneself, as an “individual” in differently governed societies. I believe that thiscompatibility in turn helps us to see the way liberalism works with socialismwithin Fichte’s legal theory.

Of course, merely saying that it is possible to live, and recognize oneself, as an individual in different social settings is not saying much. We still need toknow how precisely Fichte reconciles contractual relations with socialist public policies. To this end, we must first understand how Fichte conceives ofindividuality and individual liberty. Then we must look at his reasons forthinking that the protection of individual liberty calls for different policies indifferent social settings. Finally, we must ask whether Fichte theory of rights canindeed accommodate such a variety of policies.

My account is based entirely on Fichte’s Grundlage des Naturrechts 1796/7(hereafter Foundations) because this work contains the most systematic andcomprehensive presentation of Fichte’s views of individual liberty, rights andrational political society, and because, contrary to accepted opinion, it alreadycontains the kernel of his later, more explicitly socialist positions.

I. INDIVIDUALITY AND LIBERTY

So, according to Fichte, what does it mean to be an individual? And what doesit take for an individual to be free?

Let us first clarify the relation between “individuality” and “personhood.”For Fichte, individuality is an integral component of personhood because it isan inevitable result of a person’s participation in the external world (SW III, pp.8–9). In espousing a particular goal and translating it into action, the personexternalizes his will in a particular way, acquires particular qualities and thusbecomes a “determinate” agent. To better see the way individuality entersFichte’s concept of personhood, however, we need to make two further

FICHTE & THE IDEA OF LIBERAL SOCIALISM 55

8J. G. Fichte, Grundlage des Naturrechts nach den Prinzipien der Wissenschaftslehre, in JohannGottlieb Fichtes sämmtliche Werke, Vol. 3, ed. I. H. Fichte. (Berlin: Veit & Comp., 1845–6) (hereafterSW III), pp. 106–7, 160–1.

9Fichte’s expression is “Individualität überhaupt” (SW III, p. 46).

observations. First, what matters for Fichte is not just that persons are able toparticipate in the external world and thus become determinate. Equallyimportant is that they can recognize “themselves” in whatever they do in theworld. This means that persons must be “free” in whatever they do in theexternal world. Therefore, Fichte’s concept of personhood would not associateitself with just any form of individuality; it permits only those forms ofindividuality that persons are free to actualize and identify with. Second, whenFichte talks about the individual, he does not have in mind an isolated personwho is trying to survive in a lonely cave. Rather, he refers to a person who enjoyscertain liberties in the company of others within a social setting. This is becauseFichte approaches individuality in light of his theory of self-consciousness,according to which a person can form the conception of himself as an individualonly if he can distinguish himself from others who are not himself.10 Thus Fichte’sconcept of the individual is a “relational” or social concept, because individualityis conceived and pursued only in a social setting.

This calls for a refinement of the scope of our investigation. We must say nowthat our question is no longer “What does it mean, in general, to be a freeindividual?” It is rather: “What does it take for a person to recognize andmaintain himself as a free individual in a social setting?” Here, of course, we aretalking about a specific type of social setting, namely, a society in which eachperson is free to pursue his chosen ends and thus realize his individuality. Still,the answer we are seeking is a general one, because there could be many societiesthat satisfy that general description. Fichte himself acknowledges that there couldbe many societies that cherish and protect the liberties of their individual citizens,even if they differ in their positive laws.11 This tells us that we must define thefreedom of the individual in such general terms that it can be meaningful andfeasible in societies that are governed with notably different norms of social andpolitical conduct. We will return to this.

Not surprisingly, Fichte defines free individuality in rather broad terms. Heargues that persons can recognize themselves as free individuals so long as (i)they are able to participate in the external world, and (ii) their ability to do sois not obstructed by forces external to themselves (SW III, p. 119). The firstcondition stipulates that each be in a position to translate his freely chosen endsinto action. Therefore, we will hereafter refer to it as “positive” liberty. Thesecond condition is concerned with the extra-personal environment; it states thatthis environment, including the actions of others, be such that it does not hinderthe actions of persons. So this condition points to what we may call “negative”liberty. Accordingly, persons can form the conception of themselves as freeindividuals only if they are free both positively and negatively. The idea is that

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10“[D]ass das vernünftige Wesen sich nicht als ein solches mit Selbstbewusstseyn setzen kann,ohne sich als Individuum, als Eins unter mehreren vernünftigen Wesen, zu setzen . . .” ibid., p. 8.

11I take this claim to be implicit in “Alle positiven Gesetze stehen näher oder entfernter unter derRegel des Rechtes” ibid., p. 103.

these liberties not only enable the person to pursue his freely chosen ends in theworld; they also individuate him.

It is crucial to note that Fichte is not talking here about just any combinationof positive and negative liberties. Rather, he has in mind those liberties thatwould help persons to distinguish themselves from the rest of the world and toestablish themselves as distinct units of thought and action. But let us leave asidefor now the question of the “content” of individual liberties and focus on thegeneral point that not all combinations of positive and negative liberties are ofequal significance to persons.

We must now spell out the terms “positive” and “negative” a bit further,because Fichte himself does not use this terminology. I especially want to drawattention to the fact that the Fichtean articulation of these terms importantlydiffers from the way Isaiah Berlin defines them.12 The Fichtean idea of positiveliberty is not defined exclusively in terms of outward-directed categories ofbehavior, since Fichte counts deliberate “omissions” also as instances of positiveliberty.13 This is because what matters for Fichte is not whether a personundertakes publicly observable deeds. The crucial question is rather whether itis ultimately up to the person that he does so. Moreover, the Fichtean idea ofnegative liberty requires broadly that the person’s actions are not “renderedimpossible” by others.14 However, on Fichte’s construal, such liberty is notalways a function of others’ refraining from doing certain things: Sometimesnegative liberty requires that others do certain things in order to protect a personfrom interference (SW III, pp. 199–201). A case in point is the establishment ofa police force and whole network of public prosecution and judiciary. Also, theFichtean idea of negative liberty concerns itself not only with direct interferencewith a person’s actions, but also with indirect and non-invasive forms of harm.Thus, if I pour poison into a river, this would count as a violation of someone’sliberty to fish in that river, even though I do not interfere directly with hisactions.15 Hence, the scope of a person’s negative liberty is to be examined notmerely by looking at what others do or don’t do, but also by examining theconsequences of the actions of others.

Moreover, unlike Berlin, Fichte does not think that the negative and positiveideas of liberty are “in conflict with each other”; he writes that they are in factaspects of an “absolute and closed whole.”16 That is, they complement one


12“Two Concepts of Liberty,” Four Essays on Liberty (Oxford: Oxford University Press, 1969),pp. 118–72.

13“Das Vernunftwesen soll seine freie Wirksamkeit realisiren; . . . entweder durch wirklickesHandeln . . . oder durch Nichthandeln” (SW III, p. 34).

14“Handlung die die Freiheit . . . eines Anderen unmöglich macht.” ibid., pp. 93–4.15“Hazardous use of land” (schädliche Gebrauch) (SW III, p. 218). Fichte invokes the same idea

when he talks about actions that put others at risk (“die Verletzung des Anderen leichter machen”)(SW III, p. 294).

16“Das Urrecht ist sonach ein absolutes und geschlossenes Ganzes; jede theilweise Verletzungdesselben betrifft das Ganze und fliesst auf das Ganze” (SW III, p. 118). See also I. Berlin, “TwoConcepts of Liberty,” pp. 132–3.

another. Hence, if I am free to do x, then it is also the case that there are noexternal obstacles preventing me from doing x. And inversely, if I am not freeto do x, then often there are certain extra-personal factors that help explain thisunfreedom. The association of these liberties can also be seen dynamically, asFichte often does; an expansion in the range of limiting conditions could translateinto a reduction in the scope of what can be achieved in the world. And extendingthe efficacy of one’s external powers may reduce the range of restrictiveconditions.

Of course, the relation between positive and negative liberties can be explainedin this way only if “internal” obstacles are not taken into account. That is, myinability to embark upon a course of action can be explained in reference toextra-personal factors only if I do not otherwise suffer from a weakness orincoherence of the will. This appears to be an assumption that Fichte is makingat this point of his analysis. Indeed, he seems to assume (for the sake ofdemonstration) that persons do not suffer from stoppages internal to their willand that the obstacles they face are always on the “outside.” This means thatthe Fichtean idea of positive liberty does not concern itself with the internalprocesses and states that are involved in a person’s selection of his goals. Instead,it focuses on the external powers, skills, etc., that a person can employ whilepursuing his freely chosen goals. Similarly, the Fichtean idea of negative libertydoes not say anything about freedom from unwanted desires, so to speak; it onlydeals with the freedom from obstacles that persons may encounter in the externalworld.

Indeed, the claim that Fichte ultimately offers about positive and negativeliberties is this: these liberties can be enjoyed only in a “sensible world” that isopen to their enjoyment.17 This claim may appear trivial and indeed tautological.But it is not. In fact, it implies a crucial conditional: a person can be freepositively and negatively to the extent that he can “posit” or remold his action-environment such that this environment is favorable to his exercise of suchliberties.18

Fichte’s term “sensible world” includes not just natural objects and animals,but other rational beings as well. In practice, this means that a person will notbe able to enjoy various liberties in the external world unless some sort ofharmony among persons obtains. Fichte supposes that interpersonal harmony isbest achieved and maintained if it takes the form of a commonly agreed-uponregime of mutual rights. Indeed, like Hobbes, Fichte believes that in the absenceof such a regime of rights, there would be an endless and irresolvable war amongpersons. From this, it follows that the institution of a regime of mutual rightsmust be part and parcel of each person’s effort to establish himself as free beingin the world (SW III, p. 111). So Fichte’s claim concerning the relation betweenexternal freedom and the sensible world boils down to this: a person can be free

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17“Daher muss die Sinnenwelt so beschaffen seyn” (SW III, p. 72).18“[W]ir müssen es so setzen” ibid., p. 72.

positively and negatively only if he can enjoy these liberties as his “rights” withina regime of mutual rights.

This is not to say that every positive and negative liberty can be treated as anobject of legal reasoning. Nor is it to suggest that every such liberty must beexercised as a matter of right. Fichte’s point is that there exists a particular setof positive and negative liberties that are of fundamental importance to personsbecause they speak to their most basic interest in securing the conditions ofagency in the material world. These are the liberties that call for the institutionand sustenance of a regime of mutual rights, and these are the liberties that mustbe regarded as the inviolable rights of persons. As Fichte puts it, these are the“basic” rights of persons (Urrechte).

Fichte calls these rights “basic” not just because they play a formative role inthe constitution of persons’ self-consciousness as free individuals. They are basicalso because they are contained in all of a person’s freely committed deeds.19

That is, Fichte supposes that whatever a person does in the world, he does soby virtue of having a combination of positive and negative liberties. He thereforewrites that the enjoyment of basic rights is necessary for the enjoyment of allother rights (SW III, p. 119). Finally, Fichte calls these rights basic because theyare not products of a historically contingent political regime or ideology; rather,they are conceived in light of a transcendental reflection upon the conditions ofself-consciousness of individuality. In other words, basic rights are basic becausethey express the conditions of individuality in all (possible and actual) politicalsocieties.

We have come thus far: In articulating the conditions of individuality in termsof (the ideas of) positive and negative liberty, Fichte indicates what he takes to be the content of self-consciousness of free individuality. Accordingly, torecognize oneself as a free individual amounts to being aware that one can anddoes enjoy various positive and negative liberties. In light of this account of freeindividuality, Fichte also identifies the key trait of the rational political society:it is a society structured around the dictum that each be free positively andnegatively. This is a society structured around the basic rights of persons.

The concept of basic right thus enters Fichte’s theory at this fundamental level.But it is essential to see that this concept is not equivalent to a specific right tobe, to do, or to own something specific; rather, it embodies all such specific rights.More precisely, this concept is concerned with the organization of the“interpersonal relations” in and through which persons enjoy various rightswithout disturbing the similar rights of others. The idea is that any liberty, if itis to be enjoyed in the public domain, and if it can impact on the lives of others,must bear the features of a “right”: it must correlate not only with duties thatothers could undertake, but also with the similar liberties of others.


19SW III, p. 119. The same idea is embraced by Henry Shue, Basic Rights (Princeton: PrincetonUniversity Press, 1996), p. 19.

The indeterminacy that characterizes Fichte’s concept of basic right is notaccidental. Indeed, Fichte wants to keep this concept vague and extensive becausehe does not want to limit its scope to a set of particular liberties, privileges,powers, etc. that are considered as fundamental only within a particular politicalsociety. In other words, he wants this concept to have universal appeal andapplicability; he therefore writes that the content or “extension” of the conceptof right must be “infinite.”20

Also, for Fichte, it does not make sense to compose a catalog of rights on thebasis of an account of the most general aspects and components of individualliberty. This is because rights can effectively govern social relations in a societyonly if they call for the allocation of specific privileges, powers, duties, etc., thatare feasible and desirable in that society. Otherwise, Fichte warns (paceBentham), rights would not help in any way to “think of free beings as existingtogether.”21 Fichte’s view, then, is not only that rights presuppose the institutionof political society, but also that they need to be articulated in light of the specificmaterial circumstances of human life in that society.

Hence, Fichte’s approach to rights differs from the one employed by bothHobbes and Locke, who believe that rights do not require “any expresscompact” of others.22 Indeed, both Hobbes and Locke argue that it is possibleto deduce a catalog of rights from a description of the ways in which an isolatedperson would think and act. By the same token, Fichte’s approach foreshadowsHegel’s contention that personal freedom is conceived and realized only in a well-ordered network of “ethical” relations. At any rate, I think Fichte’s work is mostfruitfully considered as part of the Aristotelian school of thought, according towhich social membership is not accidental for human beings; rather, it is essentialfor the cultivation and exercise of their uniquely human capacities andpotentialities.

But the key issue remains open: How, according to Fichte, is the “content” ofbasic rights to be determined? And what does it mean for such rights to have an“infinite” extension?

II. THE CIRCUMSTANCES OF RIGHTS

For Fichte, the content of basic rights is a function of two sets of factors: (i) thematerial conditions of coexistence of persons (SW III, pp. 14, 107, 160), and (ii)the discrepancies between the life circumstances of different persons.

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20“[D]er Quantität nach hat das darunter Begriffene gar keine Grenzen, sondern ist seiner Naturnach unendlich, weil die Rede nur überhaupt davon ist dass die Person frei seyn sole, aber nichtwiewiet sie frei seyn sole.” ibid., p. 112; see also p. 119.

21“Nun können freie Wesen gar nicht zusammen gedacht werden, ohne dass der Umfang derUrrechte sich in den der Rechte in einem gemeinsamen Wesen verwandle.” ibid., p. 111.

22John Locke, “The second treatise,” Two Treatises of Government, ed. Peter Laslett (Cambridge:Cambridge University Press, 1990), sec. 25; Thomas Hobbes, Leviathan, ed. J. C. A. Gaskin (Oxford:Oxford University Press, 1988), part. I, ch. 14.

So the first set of factors determining the content of basic rights has to dowith the fact that rights are intersubjective in nature. In principle, this meansthat rights govern the relations among persons so as to enable them to coexistin the material world. In practice, however, to say that rights are intersubjectiveis to say that rights are asserted and exercised always in a particular socialsetting. That is, each time one asserts a right, one expresses a wish to be, to have,or to do something specific; and this wish involves a claim that others mustpermit one to realize one’s wish. However, whether or not this claim can andwill be honored depends on what it precisely entails, how it affects the libertiesof others, and whether it is consistent with the similar claims of others.Obviously, these questions cannot be addressed without looking at the specificmaterial conditions of coexistence of the persons involved.

Such questions are pertinent not only because their answers would indicatewhether a particular claim is feasible in the social setting in which it is asserted,but also because they examine whether a particular claim can be accommodatedwithin a commonly recognized regime of mutual rights. It is therefore notsurprising that Fichte’s Foundations abounds with statements emphasizing theimportance of material conditions for resolving the question of who gets what.He writes, for example, that the “positive laws” of a society cannot beformulated or ascertained without looking at such facts as the size of thepopulation, the type and amount of the available material resources, the meansof production and reproduction of the people, and so on (SW III, p. 107).

To better understand how such facts figure in the content of a right, anexample may help.23 Suppose that somebody wants to be a farmer and thusexpresses to others his interest in a portion of the available farmlands in acountry. More accurately, he expresses his interest in various positive andnegative liberties concerning the use of a piece of land. Now, this interest – ifrealized – will have a direct, negative effect on the amount of farmland availableto other farmers in the region. Similarly, it will lead to a limitation in the activitiesof hunters, miners, cattle breeders and developers. Furthermore, that person’sexclusive control of that land will have an effect on the total amount of foodsupplies and thus on other people’s ability to survive. It will also influence theprices of agricultural goods on the market and ultimately the distribution ofincome in that society. In light of these possibilities, it is not realistic to expectthat anyone will be granted a right to a farm “regardless of circumstances.”Indeed, the scope of such a right will depend importantly upon the economicand demographic facts at stake. For example, the person who is given this rightmay have to compensate for the costs that his enjoyment of this right may conferon others; that is, he may be required to pay taxes to maintain his right. He mayalso be required to forfeit his right to the underground resources that may be


23This example is constructed from Fichte’s remarks in section § 19 (esp. paragraphs A–F) of theFoundations.

discovered at a later point in time. In the long run, he may be prevented fromhaving monopolistic control over vital agricultural products on the market. It isalso conceivable that, depending on the total amount of available farmland inthe country, the parties involved may decide to cancel all exclusive rights tofarmland, and to use and benefit from land collectively.

This example tells us that the question of who gets how much land, and onwhat condition, cannot be resolved until the concrete social and economicconsequences of each pattern of land distribution is taken into account. But thelarger point here is this: The objective but variable circumstances of thecoexistence of persons play an undeniable role in determining not only whetheror not a specific right to a specific liberty can be upheld in a society, but alsowhich permissible “extension” or content each right may have. Hence:

The law [that you must] ‘limit your liberty through the freedom of all others’ is merely formal and is not suited for application; how far should the sphere ofeach extend within which no one may disturb him, and beyond which he may not go . . . ? On this, the parties must reach an agreement in good will. But whatdetermines how much can be accorded to each individual? Clearly the common willaccording to the rule: this particular number of human beings must live freely inthe company of each other, in this particular domain; thus so much goes to eachindividual . . . But since a specific number of human beings with specific interests,occupations, etc. are to coexist here, this is the Right as applied to them, i.e. theirpositive law. The law is given to them by the rule of right and by their particularphysical situation (SW III, pp. 15, 107).

But, as stated earlier, the content of basic rights cannot be determined onlyby the general fact that different societies face different “physical situations” andtherefore different challenges in distributing liberty. Fichte’s further elaborationindicates that rights can vary also according to the differences between the lifecircumstances of different persons.24

Fichte does not pursue this idea in an explicit way, but he does invoke it inpassages where he expresses his worry about the inequality of income andmaterial resources in actual societies (SW III, pp. 212–15). In those passages,Fichte is not concerned about the mere existence of differences with respect tomaterial wealth. What worries him, rather, is that these differences sometimesbecome big enough to have a negative impact on some persons’ ability to survive.Likewise, they may lead to discrepancies in how much and what sort of libertypersons can enjoy in the public domain. In other words, Fichte is concernedabout material inequalities that correlate with inequalities of freedom, and thereis no doubt in his mind that such circumstances must be ameliorated. For suchcircumstances defy the principle that validates all possible entitlements, namelythat each may enjoy certain liberties, whatever they are, insofar as these libertiesare compatible with the similar liberties of others. For Fichte, accordingly, the

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24Fichtes expression is “besondere Lage des Subjects” ibid., pp. 263, 268.

norm for the distribution of material resources in a rational society would be asfollows:

Each possesses his property, only insofar as, and on the condition that, all citizenscan live off what belongs to them. If all are not able to do so, then each person’sproperty ceases to be his own, and becomes the property of those who cannot liveoff their own (SW III, p. 213).

Fichte thus reiterates Rousseau’s contention that the equality of freedom in society is impossible without the equality of material “conditions andfortunes.”25 Note, however, that Fichte’s distributive principle would not onlyjustify a “repartitioning” of property in a state of inequality. It would also callfor differential treatment of the persons involved. More concretely, it would callfor the transfer of various powers and liberties concerning the control of materialresources from one group to another. This is not to say that those in the firstgroup will thus lose all their rights or their status as right-holders. Redistributivepolicies are not designed to enable a particular group to oppress another. Norare they motivated by irrational urges, such as revenge or envy. Rather, they areintended to end the prevailing material inequalities and thus help to establish anequal distribution of liberty. All the same, these policies would have different,and sometimes diametrically opposed, consequences for the various sections insociety: they respond to the differences between the life circumstances of personsand they call for a reformulation of persons’ “rights” in light of those differences.This may need explaining.

Redistributive policies typically demand that the beneficiaries of a particularsocial and economic system compensate for the losses that certain others havesustained under the same system. But Fichte is well aware that different socialproblems call for different solutions. Thus, for example, he writes that sometimesinequalities of freedom in a society may result from “bilateral” relations (SWIII, pp. 246–54). Accordingly, a person or group loses a liberty as a direct andunsolicited consequence of the actions of another person or group. Such loss ofliberty can take different forms. It can take the form of an inability to act in acertain way because of an obstruction created by another. Or it can take theform of an inability to use a material object because it was stolen or taken awayby another. However it occurs, the correction of harms of this sort requires thatthe offender help restore the liberty at stake. What is more, if a court of justiceestablishes that the offense (Angriff) in question is in fact a crime (Verbrechen),then it may also demand the punishment of the offender. In that case, theoffender will not only be forced to return his illicitly acquired possessions, butwill also lose a significant portion of the rights that are available to law-abidingcitizens. For example, if his punishment involves incarceration, then he will notbe able to enjoy freedom of movement during that period.


25“Discourse on the origin of inequality,” Jean-Jacques Rousseau. The Basic Political Writings,trans. D. A. Cress (Indianapolis, Ind.: Hackett, 1987), p. 79.

According to Fichte, in determining the precise type and amount ofpunishment, the courts must identify the particular causes that led the offenderto commit the wrongful act. They must ask, for example, whether he acted outof malice or necessity; whether he was aware of the consequences of his actionsor simply negligent.26 A rational forum of justice would attend to such questions,not just to find out the sanctions appropriate for each case, but also to devisepolicies to obviate future crimes and offenses.27 And the goal of such preventivepolicies would not always be deterrence. For Fichte, these policies would also bedesigned to “rehabilitate” the offenders, to incorporate them into the society,and to eliminate the material conditions that may provoke wrongful acts.28 Sothese policies would try to improve the life conditions of impoverishedindividuals to prevent them from developing an interest in theft. For suchpolicies, then, acts formerly seen as crimes may be considered indications of alarger societal problem that can be addressed through methods other thanpunishment. But the key point here is that members of a society could harm oneanother for many reasons, and these harms may differ in kind and magnitude.This being so, there must be different methods for restoring peace within society,and thus different ways of defining and limiting the rights of the personsinvolved.

But inequality of freedom in society cannot always be explained by lookingat bilateral relations, because some inequalities may have structural causes. Forexample, they may result from the ways in which the social and economicinstitutions are set up and operated (SW III, pp. 157–8). In those cases, it wouldbe inappropriate to focus on a particular person and hold him responsible forall the evil in society. A more rightful and fruitful way of dealing with inequalitiesof this sort would be to refashion the institutions and pertinent laws and toimplement a comprehensive policy of redistribution. At this point, we do notneed to determine what such large-scale redistribution would precisely entail.Nor do we need to know how the law would differentiate criminal from non-criminal liabilities in such situations, and which sanctions it would tender in eachcase. All we need to appreciate for now is that the decision as to who is to sustainwhich specific burden during the post-redistribution period depends directly on who has acquired what, how much, and in what way during the pre-redistribution period.

On the other hand, redistributive policies demand that the impoverishedmembers of the society be provided with material resources that they have notbeen able to enjoy within the existing social and economic system. Such personscan be given public assistance in the form of direct subsidies or donations. Or,

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26Fichte’s expressions are “Boshafter Verletzung”, “Unbesonnenheit” and “aus Not” (SW III, pp. 263–69).

27Hence, for Fichte, a rational government deals with both “wirkliche Verletzung” and the“Möglichkeit der Verletzung.” ibid., p. 294.

28Fichte’s term is “Besserung,” (SW III, pp. 272–7).

their life conditions can be improved indirectly through the provision of gainfuljobs. Such jobs can be created with funds elicited from the prosperous membersof the society. This means that redistributive policies would furnish the needypersons with “second-generation” rights, such as the “right to gainful work”and the “right to public assistance,” and with the related (Hohfeldian) powersto change the legal status of their fellow citizens.29

Fichte hastens to add that the enjoyment of second-generation rights must notbe seen as a matter of course. This is, first, because these rights, like any otherkind of rights, cannot be ascertained without taking into account the particularmaterial conditions of people’s existence. Also, whether or not a specific personhas a legitimate claim to such rights depends on the particular situation of thatperson (SW III, sec. 18). According to Fichte, such facts will not only indicatewhether or not a particular person is qualified for public assistance, but also helpdetermine the kind of assistance suitable for each person. Fichte thinks thefollowing considerations are relevant. First, whether or not a particular personhas a “right” to be provided with a job depends on whether he has made areasonable and ostensible effort to make a living with his own resources. If not,then his “right to work” does not bind others; he has no right to ask others toemploy him.30 Similarly, Fichte observes that some persons become impoverishedas a result of their own “dishonorable” acts in the past. These persons, heexplains, were not denied access to gainful jobs, nor were they subjected to anyother form of injustice. They have become impoverished because (say) theybetrayed their partners, abused the trust of their clients, and consequently losttheir chance to make a living in their own community. Fichte writes of suchpersons that they do not have a right to public assistance either.31 Relatedly, theywould not be given loans or any other form of financial aid by private financialinstitutions. This is not to say that these persons do not have a right to the basicmeans of subsistence. Fichte’s point is rather that it is possible, as a result ofwhat one does, to lose one’s right to certain types of public support which isotherwise available to anyone who needs it.

For Fichte, second-generation rights are invoked not only in responding toproblems associated with the distribution of liberty. They are relevant also foraddressing the needs of persons who live at the margins of society for otherreasons, such as addiction and infancy. This calls for a reconsideration of thescope of second-generation rights. For example, a rational government wouldhave to attend to the fact that a drug addict cannot lead an independent andproductive life simply by being provided with a job. Such a person needs to berehabilitated, and thus be helped to regain his ability to govern his actions.


29“Zwangrecht auf Unterstützung” and “Recht von Arbeit leben zu können.” ibid., pp. 212–13.30“[S]o soll . . . kein Müssiggänger in einem Staate seyn” (SW III, p. 214). Also “Nichts ohne

Arbeit” (SW III, p. 275).31“Wenn auf blosse Treue und Glauben geschlossene Verträge gebrochen werden, hat der Verletzte

bei dem Staate keine Hülfe . . .” ibid., p. 244.

Hence, the amount of public assistance to be spent for the recovery of a drugaddict should be more than the amount that is essential for an unemployed butdrug-free person to get back on track. Further, the recovery of an addict maycall for a paternalistic policy: he may be subjected to a strictly enforced,medically sound treatment that will presumably enable him to regain “controlof his reason” (SW III, pp. 260–8). A similar policy can be offered to children.Children too are not fully aware of their own interests and, even if they were,they would not know how best to realize them (SW III, p. 320). But this doesnot mean that children cannot be considered “subjects of rights”: they are partand parcel of the human family, and they are the future guardians of the society;therefore their needs and interests must count as much as anyone else’s. Yet,given their inability to stand up for themselves and for their interests, children’srights must be determined in light of the fact they cannot “maintain” themselvesunless they are protected by their parents or guardians. Hence children mustenjoy rights not only to various liberties (such as those in the classrooms) butalso to the “care and nurture” that is essential for their development (SW III,pp. 82, 320, 353–68).

That Fichte acknowledges and appreciates the latter function of second-generation rights indicates to us that his political theory does not rest on thethen longstanding presumption that society consists only of individuals who areexternally and internally equally strong and competent. On the contrary, thistheory embraces the fact that human beings differ not only with respect to theirsocial status and occupation, but also with respect to their capacity for self-government. In other words, Fichte seems to recognize that personhood admitsof degrees and variation. Thus, as we saw, Fichte expects a rational politicalgovernment not only to implement redistributive policies for the sake of the poor,but also to look after drug addicts and children, who are not fully capable ofdefending their rights. Relatedly, he stipulates that the ability to assert one’srights is not required to be a right-holder: just because a teenager cannot raiseher voice against her parents does not mean that she has no rights against them(SW III, p. 320). Hence, Fichte’s idea of right-holder is more inclusive and flexiblethan, say, Kant’s, which is limited to male, adult and propertied members ofsociety.32

Of course, all these public policy recommendations need to be supported bya theory of obligations. It is indeed pointless to suggest policies that transferresources from one group to another without explaining why the individualsinvolved would comply with such policies. Fichte supposes that generalcompliance with his policies could be assured contractually, that is, insofar asthe citizens believe that their mutual rights and obligations are establishedthrough a social contract. For Fichte, there would be four such contracts. The

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32Kant wrote that craftsmen, servants, day laborers and apprentices to merchants are not “fit tovote”; see Kant. Political Writings, ed. Hans Reiss (Cambridge: Cambridge University Press, 1990),p. 139.

first would be an expression of citizens’ decision to live in the company of oneanother and thus unite their fortunes. Fichte refers to this vital but vagueagreement as “unification-contract” (Vereinigungsvertrag: SW III, p. 204).Obviously, this agreement needs to be supplemented by other agreementsconcerning who gets what. In other words, there must be a second contractdetermining the nature and scope of property rights (Eigenthumsvertrag). Fichtethinks the property contract would not be feasible and binding unless itstipulated that “all citizens could live off what belongs to them” (SW III, pp.212–13). To make sure that each citizen does indeed make a living off his share,there would have to be a third contract (Schutzvertrag) to make sure that citizensare willing to support one another when in need. According to Fichte, thiscontract would demonstrate that political society is not just an aggregation ofindividuals, but a scheme of cooperation and insurance (SW III, pp. 197–201).Finally, there would be a contract whereby the institutions of “public power,”or the state, are created (Uebertragunscontract: SW III, sec. 16). The main taskof the state would then be to ensure that the other contracts are fulfilled in waysaccountable to the people.

Now, according to Fichte, the duties that arise from all these contracts are ofthe “negative” sort. That is, they are varieties of the duty not to “interfere with,”“impede,” or “render impossible,” the actions of others (SW III, pp. 42, 93–4).But it is important to note that this generic, negative duty would not always andnecessarily command omissions; at times it may call for positive actions (SW III,pp. 198–9). Thus, for example, during famine, this duty may demand that thewell-off share some of their food with the famished; otherwise, the former wouldbe interfering with the latter’s basic right to a vitally necessary portion of themeans of subsistence.

Fichte’s idea of public obligation is best reflected in his idea of the state, sincethe state is above all an institutional expression and instrument of the dutiescitizens owe to one another:

To be able to live is the absolute, inalienable property of all human beings . . . Theattainment of this is [to be] guaranteed; this is the spirit of the property contract.A principle of all rational state constitutions is that everyone ought to be able tolive from his labor . . . Thus all have promised to all that their labor really oughtto be the means of attaining that end, and the state must make arrangements toinsure it (SW III, pp. 212–13).

Despite its contractual origin, however, the Fichtean state differs from itspredecessors in a fundamental way. The tasks that the Fichtean state is toundertake are not limited to the essentially defensive policies of protecting therights of individuals against unwanted obstructions and invasions. As we saw,sometimes it would act as the ultimate benefactor. It is expected not only toprotect each individual’s right to make a living, but also to support theunemployed if employment could not be provided. This is because “all are


responsible for seeing to it that each person is able to live off his own labor andwould have to subsidize him if he were unable to do so . . .”33

Implicit in this proposition is a rather pessimistic view of the free marketeconomy. Indeed, Fichte seems to resist Adam Smith’s presumption that freemarkets are generally steady, self-sustaining and harmonious. His observationssuggest, to the contrary, that such markets are unstable, unreliable and unfair,because they can be manipulated or controlled by some at the expense of others.Indeed, Fichte’s doctrine of rights revolves around the belief that the free marketeconomy does not promise gainful employment for everyone. I take this to bethe reason behind Fichte’s stipulation that occasional redistribution of materialresources is essential for rational political government. This would also helpexplain his view that the government must support the individuals who couldnot make a living despite their efforts. Fichte is not providing here a justificationfor benevolent tyranny; he is only describing a political government which iscreated in and through a series of social contracts and which undertakes tasksthat are contemplated by the authors of those contracts.

Note that Fichte’s view of the free market economy is consistent with theconcerns characteristically voiced by the socialist thinkers in the nineteenthcentury. So it is not accidental that some socialists, including Ferdinand Lassalleand Hermann Cohen, thought Fichte’s work had to be differentiated from thoseof his predecessors, such as Rousseau and Kant, who were concerned primarilywith equality before the law and failed to see that uniform law-making is notenough to eliminate social and economic inequalities.34

So far, we have considered Fichte’s approach to public policy, but we have notasked whether this approach is supported by a coherent doctrine of rights. Wehave seen that, for Fichte, the rights of persons are determined on the basis of(i) the material conditions of society in general, and (ii) the ways in which thoseconditions affect the lives of individual citizens. Depending on these factors,persons can have the right to own material items, the right to public aid, theright to gainful employment, the right to the means of subsistence, the right tocompensation for past injustices and the right to a fair trial. Fichte’s point mustbe that each of these rights protects in its own way the external conditions ofindividual freedom. It must also be that each of these rights can serve as a “basic”right, i.e., necessary for the rest of the person’s rights. Thus, these rights can beregarded as instances of the concept of basic right, or as belonging in the Fichte’scatalog of basic rights.

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33“Da alle verantwortlich sind, dass jeder von seiner Arbeit leben könne, und ihm beisteuernmüssten, wenn ere s nicht könne . . .” ibid., p. 214.

34Ferdinand Lassalle, “Fichtes politische Vermächtnis und die neue Gegenwart,” FerdinandLassalles Gesammtwerke, Vol. 3, ed. K. F. Pfau (Leibzig: 1899–1909), pp. 252–80. Marianne Weberagrees with this reading of Fichte’s work; see her Fichte’s Sozialismus und sein Verhältniss zurMarx’schen Doktrin, ch. 2. Also see Joseph Spengler’s “Right to work: a backward glance,” Journalof Economic History, 28 (1968), 171–96. For a general account of the way Kantian philosophers,including Fichte, have looked at socialism, see Karl Vorländer’s Kant und der Sozialismus.

Yet this is still far from resolving in a conclusive way the question of who isto have which liberty in a political society. By simply looking at this catalog, wecannot determine which specific powers, liberties, etc. will fall under each ofthese rights on particular occasions. Nor can we determine which specificcorrelative duties would be associated with those rights. We saw that the “rightto gainful employment” can be construed both as a “right to own a piece ofland” and as a “right to be given an opportunity to work.” Thus, the “right togainful employment” can generate for others both the duty of noninterferenceand the duty to provide the right-holder in question with a gainful job. Further,the same right can also be used to justify a comprehensive policy ofredistribution. The problem here is not simply that there is no way of knowingin advance how the rights on Fichte’s catalog will be interpreted and applied inspecific situations. There is also no reason to presume that the rights of personsmust necessarily be articulated in terms of the rights in his catalog. In sum, Fichtecatalog fails to allow us to make categorical or universal statements about therights of persons in actual social settings.

This conclusion is no surprise by Fichte. In fact, it appears that this is theconclusion he seeks to establish. As mentioned earlier, he writes that the conceptof basic right is “infinite”: it does not associate itself necessarily with anyparticular content or “extension.”35 Similarly, he characterizes this concept as“merely formal.” That is, this concept indicates that free individuality dependson the enjoyment of various positive and negative liberties, but it leaves openthe question of which positive and negative liberties would be necessary for aspecific person to recognize himself as a free individual on a particular occasion.Therefore it makes sense for Fichte to think that there is no categorical orunconditional right to be, to do, or to own, any particular thing, and no suchright to determine by one’s choice how others shall act. Indeed, toward themiddle of the Foundations, he formulates this conclusion as follows:

The right of coercion has no application whatsoever except for collective being(gemeinen Wesen); otherwise, the rightfulness of coercion is always problematicand this precisely is the reason it is always unfair to exercise coercion as if there isa categorical right to it (SW III, p. 148).

But this would be grist for the mill of the critics who say that Fichte is confusedabout what it means to have a basic right. Indeed, how can rights serve as reliablebastions of individual liberty if they are so malleable? Worse, if rights are definedsolely within a political association, how can they empower individuals to standup against inequalities that are rooted in the laws and institutions of that society?

If my exposition of Fichte’s account is accurate, then we will not be able torespond to this line of questioning by looking at his statements as to the meaning


35“[D]er Quantität nach hat das darunte Begriffene gar keine Grenzen, sondern ist seiner Naturnach unendlich, weil die Rede nur überhaupt davon ist dass die Person frei seyn solle, aber nichtinwieweit sie frei seyn solle.” SW III, p. 113. Similarly, Fichte wrote, “ein besondered Recht derSelbsterhaltung giebt es nicht.” ibid., p. 119.

and relevance of various specific rights. These statements are too varied andcontext-dependent to provide us with a coherent account of the requirements ofindividual freedom. Nevertheless, I believe that Fichte’s statements do shed lighton the kinds of rights persons must have invariably in all situations: they allowus to stipulate that persons must always have, among others, two kinds of rights:(i) economic rights and (ii) political rights.

III. FICHTE’S CATALOG OF RIGHTS

Our remarks have indicated that, for Fichte, material resources are essential forpersons to maintain themselves as free beings. They are essential not only in thesense that persons cannot survive without material resources, but also in thesense that they enable persons to pursue their freely chosen ends in the world.The ability to control or have access to some material resources must then beseen as an indispensable component of each person’s freedom. In other words,each person must have certain “economic” rights. The importance of such rightsis not contingent on particular interests or needs of specific persons; nor is itcontingent on the presence of a specific economic system. Persons need suchrights wherever they live and whatever interests they have. Economic rights cantherefore be viewed as universal rights.

Surely, we still cannot say in advance who should enjoy which specific materialresource, and to what extent, in a given society. But this should not worry usbecause we now know how this question would be answered in a rational society.We can stipulate that the distribution of material resources in any rational societymust be egalitarian; that is, it must ensure that each enjoys equal access to suchresources and can live off that share. On account of Fichte’s contractarianism,we must add that the distribution of material resources must be acceptable tothe parties involved.

This brings us to the second kind of rights that persons in all societies musthave: political rights. These are the rights that enable citizens to participate ingovernment. Yet Fichte is aware that there are many ways in which citizens cando so.36 First, they could be directly involved in the making and execution of allthe laws and policies in their society. This form of government is called directdemocracy. Another possibility is that citizens determine only the most basic lawsof their society, i.e. the constitution, and appoint a person or group to executethem. Accordingly, the executive will be given both the right to enforce theconstitution and the right to deduce inferences from it and so make lower-levellaws. This would be indirect constitutional democracy. With respect to this formof government, two possibilities suggest themselves. The members of theexecutive can be appointed directly by the people through periodic elections.This would ensure that the executive always acts in accordance with the interests

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36The following is based on section 16 (esp. pp. 161–87).

of the people. Or, executive power can be entrusted to a particular person orgroup through mechanisms other than elections, e.g. inheritance. These forms of government can be called, respectively, monarchy and aristocracy. Suchgovernments can be legitimate only if they comply with the laws laid down bythe people. To ensure that they do, citizens must set up public tribunals, orephors, which inspect and check the actions of governments.

Note that each of these forms of government rests on a distinct way of definingand distributing political powers and tasks. While the citizens of a directdemocracy participate in all aspects of political government, the citizens inmonarchic and aristocratic societies are deprived of executive privileges. On theother hand, indirect democracies function insofar as citizens abide by the resultsof elections and agree to this restriction on the extent of their political efficacy.Despite institutional variations, however, all of these governments can be called“republican” since they all embody the principle that political sovereignty liesultimately with the people. Indeed, they all involve (i) some procedure wherebycitizens participate (directly or indirectly) in the making of laws, and (ii) someprocedure whereby they check (directly or indirectly) the prerogatives of theexecutive power (SW III, pp. 16, 171, 185). In evaluating the rightfulness of apolitical regime, then, the critical question is not “Which specific political rightsdo citizens have?” For the answer to this question may vary from one society toanother. Also, this question is immaterial unless it is accompanied by the furtherquestion “Given their political rights, can citizens participate effectively in thesetwo ways in the political government of their society?”37

Political rights, whatever they are, play a central role in identifying the rest ofa person’s rights, because by virtue of such rights persons participate in politicaldecisions concerning who gets what. This does not mean, however, that politicalrights have a moral priority over economic rights. This is because political rightsdo not have a value independently of their relation to economic rights. Indeed,Fichte suggests that citizens would want to participate in politics not because politics is an end in itself, but because they want to make sure that their claimsto a fair share of the material resources are not neglected by others (SW III, pp.144–9). Also, true political freedom is possible only in societies in which citizenscan enjoy material goods and services independently of their political preferences;I may not feel free to vote for the political party of my choice, if I fear that I willlose my job were I to vote according to my choice (SW III, pp. 156–9, 177). Fromthis standpoint, economic security appears to be a prerequisite for politicalfreedom. However one construes the relation between economic rights and political rights, there can be no denying that the question of “who gets what?”is inextricably linked to the question of “who governs?”


37This is implicit in the assertion that “eine Constitution, die überhaupt rechtmässig ist, d.h. dieeine constituirte, aber verantwortliche executive Macht und Ephorat hat, sey unabänderlich.-Innerhalb dieses Umkreises nemlich sind noch Modificationen ins Unendliche möglich; und diesenäheren Bestimmungen sind abänderlich.” ibid., p. 185.

These remarks not only shed light on the connection between political andeconomic rights. They also indicate to us that, on Fichte’s account, a person mustenjoy both kinds of rights in order to live, and to recognize himself, as a “freeindividual” within society. This interpretive claim is supported by the fact thatFichte characterizes the citizens of a rational society both as bearers of rights to“property, civil liberties, etc.” and as “participants in political sovereignty” (SWIII, pp.14–15). Also, Fichte’s discussion of the rights of citizens is not based onhis observation of historically contingent political associations; rather, it stemsfrom his understanding of the “fundamental and necessary” features of the“society of free beings” (SW III, p. 85). In other words, Fichte’s idea of a “societyof free beings” rests on the idea of the citizen who is free, not only to do variousthings in the material world, but also to determine (together with others) thescope of those first-order liberties.

This introduces, at long last, a closure to our examination of the “content”of Fichtean basic rights. We have developed two criteria in light of which wecan judge the admissibility of actual regimes of rights. The first pertains to the admissible content of rights: rights, whatever they are, must enable each toenjoy equal access to material resources and an equal power to participate in government. The second criterion pertains to the way in which rights arearticulated: Rights, whatever they are, must be articulated and validatedcollectively, and they must be acceptable (at least in principle) to everyoneinvolved. Thus we have now available to us a “doctrine” of rights that is generalenough to lend itself to a variety of specific catalogues of rights, and concreteenough to provide us with guidance in judging the rights of persons in actualsocieties.

It must be clear by now that Fichte’s concept of basic right does not dictatea specific distribution of material resources. This is because the question of whois entitled to which specific economic and political resources cannot be settledwithout looking at the specific conditions of coexistence of persons at a givenpoint in time. That is, the content of economic and political rights changesaccording to changing conditions. Furthermore, this concept does not dictate aspecific manner in which persons are to relate to economic and politicalresources. Thus, for example, nothing in this concept implies that persons mustalways have “exclusive” control over some portion of the material resources.This being so, there is no reason why persons should not enjoy together a givenresource (such as forests, farmlands, institutions of justice, or public safety)without interfering with each other’s access to it (SW III, pp. 192, 215–31,260–85). As such, there is no reason why such commonly held items cannotcoexist with separately owned items. This is another way of saying that Fichte’sconcept of basic right is compatible with the institution of “common” propertyas well as with the institution of “private” property.38

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38Fichte’s term “Eigenthum der Gemeine” (SW III, p. 219) is best translated as “commonproperty” as opposed to “collective property.” For a elucidation of this distinction, see JeremyWaldron’s The Right to Private Property (Oxford: Oxford University Press, 1990), pp. 37–46.

This is not an inconsistency as some Fichte scholars have claimed. On thecontrary, I suggest that the flexibility of Fichte’s doctrine here ought to beregarded as a virtue, because it shows that this doctrine is not oblivious to thecomplexity and variability of social phenomena and to the equally complex andvariable conditions under which individuals exist together.39 After all, theultimate concern of Fichte’s doctrine is not to make sure that each enjoys aparticular object as his personal property, but to identify the conditions underwhich each remains free without interfering with the similar liberty of others.The flexibility in Fichte’s doctrine in this regard allows us to classify this doctrineas “liberal socialism.” Note, however, that liberal socialism is not just anattribute of Fichte’s political thought; it also points to a way of thinking thatmarks a turning point in the history of political thought.


39A similar point is made by F. Neuhouser in his “Introduction” to Foundations of Natural Right.

Fichte and the Idea of Liberal Socialism

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