2. A Kantian theory?

Fichte had found an ally in Kant in unmasking the ideology of the old regime, resulting in his two publications in 1793, the book Contribution to the Correction of the Public’s Judgment on the French Revolution and the pamphlet ‘Reclamation of the Freedom of Thought from the Princes of Europe, Who Have Oppressed It Until Now’. From Kant he took the view that political practice should be evaluated from a normative point of view found outside of the practice, leading him to respond to August Wilhelm Rehberg who had criticized the radical arguments for the revolution in France from a conventionalist perspective.Footnote ² Anthony La Vopa writes that Fichte was ‘intoxicated’ by the idea of having a transcendent vantage point, ‘outside and above the ideological arena’ (La Vopa Reference La Vopa1989: 143). That vantage point was Kant’s view of the moral agent who is not subject to blind empirical forces but free and capable of objective moral insight. The only legitimate judge of society is the speculative thinker. Likewise, Frederick Beiser, reading Fichte’s later radical development of Kant’s critical philosophy into the earlier writings, has argued that Fichte used a Kant-inspired critique to tear down belief in providence, a moral world order created by God, which was one of the ideological pillars of the old regime. The belief in providence rationalized the ’static hierarchy of the late eighteenth-century society’ (Beiser Reference Beiser, James and Zoller2017: 57). Fichte’s task was to make humans aware of their freedom and shake down an oppressive system.

This interpretation can make sense of Fichte’s obvious debt to Kant. That Fichte was indebted to Kant was evident at the time, as his treatise on religion, Attempt at a Critique of All Revelation, published anonymously the year before, had been taken as a text from Kant’s hand. It is also a view that is in line with Fichte’s self-understanding, attested by the contemporary letters where he describes his devotion to Kant, which also led him to make a visit in Königsberg.Footnote ³ It is also true that Fichte took up the fight against August Wilhelm Rehberg, one of the empiricist philosophers Kant had disagreements with in his ‘On the Common Saying: That May Be True in Theory, but It Is of No Use in Practice’, which was published on the heels of the first instalment of Fichte’s book on revolution (Henrich Reference Henrich and Henrich1967). Fichte’s Contribution, as the title indicates, is styled as an argument in a public discussion, and it was explicitly formulated against empiricist philosophers, Rehberg in particular, who sought to deny the revolution’s legitimacy on grounds that humans lack the ability to interact in society as free and enlightened agents. Fichte’s mission was to engage in cultural awakening, showing his readers that human beings have the capacity for moral autonomy and a right to create a society based on it.

Yet, in addition to being arguments in an ideological debate, the Contribution and the Reclamation were also philosophical works with a systematic intent. Indeed, while the Contribution is presented as engaging in a debate, the French revolution is barely mentioned and, as David James has noted, Fichte’s main concern is with the moral principles that he uses for evaluating the event (James Reference James2015: 66). Rehberg serves mainly as a stepping stone for Fichte’s first attempt at a systematic theory of law and politics, which would come to fruition (in a different form) three years later with the publication of the Foundations of Natural Right. It is interesting that Fichte’s legal and political theory is not that close to the theory Kant himself would develop in the writings that culminated in the Metaphysics of Morals from 1797-8. Where Kant sees the task of the state to provide formal conditions that ensure that free persons co-ordinate their interdependence Fichte sees politics as a context for a particular outcome: enabling individual cultivation. ‘Culture is the exercise of all forces to the end of complete freedom, the complete independence from everything that is not we ourselves, our pure self’ (Fichte Reference Fichte2021: 49). To use simple handles on this difference, we can refer to Kant’s theory as relational and rights-based, Fichte’s as ego-centred and perfectionist.Footnote ⁴

Scholars have rightly said that Fichte’s early political philosophy was committed to Kant’s principle of autonomy (Morris Reference Morris2011: 554). For that reason, it may sound odd to speak of Fichte’s writings in 1793 as perfectionist, considering Kant’s well-known critique of perfectionism in Groundwork of the Metaphysics of Morals and Critique of Practical Reason. (G 4:444, CPrR 5:41) On Kant’s view, perfectionism establishes an end that precedes the determination of the will by practical reason, as for example in Christian Wolff who posited an eudemonistic concept of happiness as the supreme end. That lead to a form of consequentialism, where reason’s role is to find the best means to the end of the greatest possible perfection (Wolff Reference Wolff and Schneewind2003: 336). Yet, as Paul Guyer has shown, what Kant objected to was the particular end that Wolff and others posited – the perfection of our internal and external conditions. Kant’s ethical theory can in fact be understood as a form of perfectionism, where the end is the perfection of the moral will by making it conform to the ideal of rationality (Guyer Reference Guyer2016, see also Brink Reference Brink2019). Thus, when speaking of Fichte’s perfectionism in the following I will have in mind a theory that grounds moral duties in the perfection of human beings as rational agents. This kind of perfectionism suffuses Fichte’s writings in 1793, oriented as they are to the cultivation of sensibility for the sake of rational self-determination. Fichte and Kant part ways in politics, however, where Kant refuses to define and justify legal and political principles as instruments of individual ethical perfection and rather defines them from their contribution to enable the equal external freedom of multiple persons who unavoidably interact.

Kant’s legacy is not systematically developed in Contribution, yet given the task of the book Fichte would have no reason to go too much into these principles. The task of the book, and of political philosophy, is to establish the principles for a society where persons can develop their individual moral rationality. The test of the justice of any legal or political principle is whether it is compatible with moral agency, and whether it contributes to its development in everyone within its boundaries. The standard for judging the justice of institutions is individual moral conscience.

The emphasis on moral conscience has led critics to consider Fichte’s theory as fundamentally opposed to institutions. Bernard Yack argued that Fichte, and other ‘left-Kantians’, shared a ‘conviction that man is justified in rejecting all political institutions that do not embody the capacity for autonomy that Kant’s critiques had rendered irrefutable’ (Yack Reference Yack1986: 102). They had a utopian yearning for revolution: every social relation ought to be recast in light of the negative freedom of the isolated individual leading to a radical social and political instability. Yack’s interpretation correctly captures the anarchistic tendency of the early Fichte who argued individuals at any time may withdraw from contractual obligations, including the obligation to the state. Yet, as Douglas Moggach has argued, it does not capture the view Fichte went on to develop later in his mature political philosophy. In later works he argued that freedom requires individuals to have the material conditions as means to exercise their freedom. Fichte (and the same group of left-Kantians) exemplified a new version of proto-socialist perfectionist ethics, intended to reform rather than destroy institutions (Moggach Reference Moggach2021, see also Gotlieb Reference Gotlieb and Dahlstrom2018).

While Moggach is correct in emphasizing Fichte’s later attempts at securing the economic conditions for free agency, the emphasis in the 1793 writings is firmly on the legal and cultural means of self-development to freedom. The task of the constitution is to protect inalienable rights defined by the categorical imperative, in order for individuals to cultivate themselves. This gives the early theory its distinct autonomy-centred approach to legal and political philosophy and raises the question of whether it is compatible with a Kantian approach to the constitution.

3. Politics as ethics by other means

Fichte’s main difference from Kant in 1793 was that he derived legal and political principles directly from moral duty as established by Kant’s theory of pure practical reason. In this endeavour he was similar to other Kantians at the time including Gottlieb Hufeland, Johan Benjamin Erhard, and Salomon Maimon.Footnote ⁵ What the moral laws command is a duty, what they forbid is wrong, whatever acts the moral law does not regulate but rather permits is open for arbitrary choice (Fichte Reference Fichte2021: 24). Right is defined as that area of action where the moral law permits free choice (in addition to acts of duty). ‘Everything that the law does not forbid, we may do’ (Fichte Reference Fichte and Schmidt1996: 124-5). From this Fichte derives a number of rights: the right to self-ownership, (Fichte Reference Fichte2021: 76, Fichte Reference Fichte and Schmidt1996: 124), the right to speech, (Fichte Reference Fichte and Schmidt1996: 128) the right to consent to government, (Fichte Reference Fichte2021: 44, Fichte Reference Fichte and Schmidt1996: 125) and even a right to sustenance (Fichte Reference Fichte2021: 130-1). What all these rights have in common is that they are either derived from the principle of morality or conditions for persons to develop moral agency. The moral law is the source of natural rights, which are rights to everything that does not contradict moral duty (Waibel Reference Waibel, Rockmore and Breazeale2006). These rights, which Fichte qualifies as inalienable, in turn must be given efficacy through civil legislation (Fichte Reference Fichte and Schmidt1996: 125).

Due to the equality inherent in the moral law, civil laws can be binding only when resulting from individual consent (Fichte Reference Fichte2021: 46). ‘No human being can be bound, but by himself; no human being can be given a law, but by himself. If he allows a law to be imposed on him by a foreign will, he relinquishes his humanity and makes himself an animal. And that he may not’ (Fichte Reference Fichte and Schmidt1996: 44, likewise Fichte Reference Fichte2021: 124-5). The limit to consent is set by a (Lockean sounding) notion of self-ownership and property rights in the state of nature (Fichte Reference Fichte and Schmidt1996: 124). Fichte, by contrast to Kant, considers consent an actual expression of preference (Fichte Reference Fichte2021: 46). The voter is not to ask himself what would be the suitable means for reconciling persons under the rule of law, but what his preference would be given a set of arbitrary choices left open by the moral law. This view of the significance of individual consent lies at the base of Fichte’s voluntarist view of state authority and legitimacy. Subjects are free to withhold their consent and as a result their obligation is dissolved. The resulting contingency of the obligation to obey is sharply divergent from Kant. Underlying it is, again, Fichte’s attempt to make political authority contingent on ethics. Freedom is ‘the state of being truly dependent on nothing but oneself’ (Fichte Reference Fichte2021: 60), but the independence Fichte has in mind is not just the legal status of being one’s own master in a legal system securing the rule of law, but the moral status of being an autonomous agent.

The task of the constitution is to establish laws aligned with the moral law, and in particular the duty to cultivate ones capabilities for moral agency so that persons can uphold their duty. Public laws should help persons reach ends that are essentially moral by adding force to moral demands. For that reason one can say that politics, for Fichte, is ethics by other means. The point is not that humans can be morally good merely by outwardly complying with law, but that laws should be in line with the duties moral agents have and contribute to furthering them. This is mostly intended in a negative sense: the constitution should not contradict morality and it should prohibit any attempt to interfere in the moral life of persons, and allow them to cultivate their moral character. But it also includes a positive aspect: the law should provide the legal, political, and social conditions for individuals to flourish as autonomous moral agents. Thus, the constitution is to be judged by a moral standard that can in principle be defined independently of the specifically political problem of coordinating a society. This instrumentalist view of right as a tool for autonomy leads Fichte to depart from Kant’s conception of politics in three central aspects. Right has essentially to do with the individual’s duty to self, it has to do with needs, and in part it aims toward a particular outcome. I will go through these three features in turn paying attention to the divergence from Kant. Kant himself, of course, had not yet made his major contribution to legal and political theory in 1793, therefore Fichte is not purposefully disagreeing with Kant’s stated political theory.

The first aspect is the particular individualism of Fichte. For Kant, principles of right are limited to external relations among persons whose actions can have influence on each other. (MM 6:230) Thus, to Kant right is a subset of the moral domain, which is not concerned with duties individuals have to themselves in the absence of others, such as the ethical duty to act out of respect for the moral law, and the duty to cultivate one’s moral agency. For Fichte, by contrast, the state’s purpose is to enable individual morality (Fichte Reference Fichte2021: 26).Footnote ⁶ He starts with an individual duty, which is to cultivate sensibility to align it with rationality, where freedom is understood as ‘the state of being truly dependent on nothing but oneself’ (Fichte Reference Fichte2021: 60). This is essentially a notion of Kantian autonomy, and law should be established so as to enable the moral awakening that it requires. (G 4:453, 455, 457, CPrR 5:86, 5:97, 5:119) That has consequences for interaction: it rules out laws imposed against one’s consent, it underwrites institutions that can be deduced from the moral law such as freedom of expression, and it enables persons to be free to do anything that it not prohibited by the moral law, such as acquiring property (Fichte Reference Fichte and Schmidt1996: 124-5). In all these cases, right is understood not as a solution to a problem of interaction between persons, but as a problem of individuals securing their capacity for autonomy. ‘The final end must advance the individual’s final end’ (Fichte Reference Fichte2021: 26). Relations matter only in so far as they impact this personal end, which can be defined prior to the constitution of a society.

The second aspect is the emphasis on needs. For Kant, the domain of right is limited to reconciling mutual choices and is not about the needs or wishes of individuals. (MM 6:230) Promoting individual welfare by public measures can be justified only derivatively, as a means to securing the state’s strength and stability, especially against external enemies. (TP 8:298) By contrast, Fichte recognizes rights as a means for individual moral agency, ‘Man has a right to the conditions under which alone he is able to act according to duty, and to the actions that his duty demands’ (Fichte Reference Fichte and Schmidt1996: 125). To be sure, Fichte’s state is primarily a negative presence. Its task is not to force persons to be good but to stay out of their business so that they can pursue it themselves. Thus the conditions he has in mind are primarily legal rights to unlimited freedom of expression and right to live, to one’s body and powers, and to property. But the state is also obliged to establish positive rights that pertains to material needs including a right to nourishment, clothing, and lodging (Fichte Reference Fichte2021: 124, 130). In general, persons have a need to develop their culture to become free in a moral sense and civil legislation is to reflect that most of the time by staying out of the way since a culture cannot be imposed like a man puts on a coat (Fichte Reference Fichte2021: 94), but it could in principle also intervene in order to contribute to cultivation.

The third aspect separating Fichte from Kant is that for Fichte one aspect of politics is oriented towards outcomes. For Kant, right is not concerned with the matter of choices, the ends persons pursue, but exclusively with the formal relations among free persons, where the goal is to secure mutual freedom as independence under a universal law. (MM 6:230, TPP 8:377) For Fichte too, natural rights are not oriented to ends, since they are based on a moral law, which is a deontological principle. Yet, as we have seen, civil legislation ought to also be developed so as to positively enable persons to develop their capabilities for rational, moral agency (Fichte Reference Fichte2021: 70, 60, 66). In this sense, civil laws are justified by their contribution to an end and have a teleological structure. Moral cultivation is not merely a welcome by-product of natural rights, but a purpose for which laws are established.

These three differences show that Fichte did not see the political domain as governed by a separate form of morality, but merely as a context for the imposition of individual moral agency. Right and wrong are defined as means to ensure the cultivation of moral character, which is the true end of the constitution. Absolutism must be overcome because it leaves everyone in a state of passivity, which is directly antithetical to their duty of moral perfection. Free speech must be permitted as a natural part of the ‘self-activity’ characterizing moral agency (Fichte Reference Fichte and Schmidt1996: 135). Communication is necessary for education into ‘freedom and personality, hence there is no right to give it up and no right of rulers to take it away’ (Fichte Reference Fichte and Schmidt1996: 128). In these respects, Fichte is similar to Wilhelm von Humboldt, who in some essays published in Neue Thalia and Berlinische Monatsschrift the year before defended a perfectionist view of the individual. Yet, Fichte’s Kantian commitment to freedom as autonomy separates him from Humboldt who defended a negative concept of freedom that was primarily about freedom of choice.

The primacy of individual morality is particularly visible in the exceptional importance Fichte gives to conscience. In the state humans ‘never leave the realm of conscience’ (Fichte Reference Fichte2021: 89, Fichte Reference Fichte and Schmidt1996: 124). They are never morally permitted to just accept the authority of law, but must test it themselves. In so doing they withdraw from their status as citizen and subject and hold the civil laws up to their own moral judgement and may at any time decide to leave the social contract. This is, in principle, something Kant too allowed – conscientious objection is presumably granted in the Kantian state and there seems to be no limits on emigration – but Fichte allowed that those individuals who decide to abandon the state may unite and set up a new state on the same premises, something that is hard to reconcile with a Kantian commitment to sovereignty (Fichte Reference Fichte2021: 101).

Kant, it is well known, also sought to extend morality to the domain of politics and argued strongly against the same empiricist position that Fichte contested. (TPP 8:370) The difference is that he held on to his formalism even in the political domain. The rights and duties of individuals are never constructed with a purpose to reach particular outcomes, not even the outcome of moral autonomy. The result, for Kant, was that when rights and duties were constructed in the political context their purpose was limited to securing a particular relation between interacting agents. Fichte left formalism aside and argued that law should be considered a means to achieving ends that could in principle be established in the absence of law, in this case moral autonomy. In that sense, politics was to him just individual ethics by other means.Footnote ⁷

4. On voluntary servitude

The natural rights theory Fichte developed in 1793 was intended to solve a political problem: voluntary servitude. Diethelm Klippel has seized on a paradoxical situation in the late eighteenth century. On the one hand, individual freedom and human rights were increasingly dominant principles among philosophers (Klippel Reference Klippel1976: 178ff). On the other hand, the political realty was that Europeans were governed by despotic rulers. Fichte realized that the subjection in which persons found themselves was voluntary. After all: the ruler is just one, and his ministers and underlings are very few, and massively dwarfed by the people as a whole. That system would not work, unless the people at some level accepted the status quo. If the people were to stop consenting to their own political domination, they would be free to abandon their masters and to develop lawful institutions. For legal independence to come into being, however, they would have to first develop their ethical autonomy and stop consenting to their own exploitation.

Fichte’s political interest is hardly hidden. He engages in heavy polemics against the critics of the French revolution and against Johann Christoph von Woellner, the Minister of Justice and head of the Office of Worship in Prussia, who introduced significant restrictions on the freedom of expression. Yet, it is perhaps not obvious how his ethical theory was designed to play a political role. The problem of the old regime was the culture of inequality perpetuated by ideologues, and in attacking it Fichte reveals the significance of a moral ideal that relies on culture and perfection. An enlightened people will not be submissive. In terms of unmasking false consciousness, Kant’s legal and political formalism has little to offer since it leaves aside moral agency. As Kant famously stated, a state can be established even by purely strategic actors (what he called a nation of devils) and it is sufficient for legality that persons act out of the incentive to avoid punishment. Although Kant strongly defended public enlightenment, his legal principles were not geared toward that goal. Kant rejected the idea of voluntary servitude, but only for the legalistic reason that it is incoherent for persons to contractually abandon the personhood that is a precondition for the reciprocity of rights and duties in valid contracts, not because individuals in a dependent and passive condition fail to realize their moral nature. (MM 6:283)

Fichte describes voluntary servitude in the following way. Princes cannot always rule by force and coercion by subjugating the bodies of men because they and their allies are few and the people are many. Hence, they paralyse the free thought of their subjects who do not dare think otherwise than they are ordered to: ‘then they are completely the machine that you desire to have, and you can now use them as you please’ (Fichte Reference Fichte and Schmidt1996: 131). The purpose is to make people perceive highly unjust institutions as legitimate because natural when in fact they are merely derived from existing practice. Thus, the institutions of the aristocracy and the church are upheld by ‘the general opinion-system of peoples,’ or ‘the general consensus’, and have the false appearance of ‘purely intellectual, eternally true basic principles’ (Fichte Reference Fichte2021: 16). Domination by ideology accomplishes something that an overt system cannot achieve: ‘We never honor anyone as a matter of law. High esteem can never be mandated, neither through the constitution itself, nor through a single dictum of a monarch. It is given voluntarily’ (Fichte Reference Fichte2021: 158, cf 156, 164). He notes that princes after the French Revolution increasingly sought to appeal to goodwill and popularity, disguising the oppressive nature of their rule (Fichte Reference Fichte and Schmidt1996: 120).

The problem about false consciousness is twofold. The first is specific to the purpose Fichte criticizes, which is to uphold the highly unjust old regime. The second is common to any rule by ideology: false consciousness is an obstacle for the duty to cultivate the capability for moral autonomy, as such it breeds moral corruption. This is the reason he called absolutism a ‘long slavery of the spirit’ (Fichte Reference Fichte and Schmidt1996: 134). Absolutist states have as their final end ‘the freedom of a single individual; culture for the sake of this individual and prevention of all kinds of culture that would lead to the freedom of many more (Fichte Reference Fichte2021: 60).

Fichte’s political philosophy is suited to solve these two problems of false consciousness because of the duty to cultivate moral independence. The means to this end is to open up the public sphere, leading to spiritual awakening through freedom of thought and expression. Individuals who had been enslaved by the belief system can only liberate themselves by abandoning that system through public enlightenment that can refute the likes of Rehberg. Fichte’s solution is intended not just as a recipe for changing one’s consciousness but for changing society. Once individuals abandon the imposed passivity of the mind they will no longer be docile. ‘He who is not allowed to determine what he wants to believe will never dare to determine what he wants to do. Yet he who liberates his understanding will before long liberate his will as well’ (Fichte Reference Fichte2021: 58, likewise Fichte Reference Fichte and Schmidt1996: 126). Freedom of thought enables political action.

Johan Benjamin Erhard, a fellow Kantian who Fichte had gotten to know in Königsberg in 1791, put out his translation of Étienne de la Boëtie’s Discourse On Voluntary Servitude, the classic theory of false consciousness, in Der neue teutsche Merkur the spring that Fichte wrote his works. (de la Boëtie Reference Boëtie1793) Fichte’s frequent mentions of submission as voluntary may be indications of his familiarity with the essay. La Boëtie’s text, originally published in 1577, concerns the paradox that tyrants manage to maintain power despite the fact that the population due to its numbers always is stronger than a single tyrant. They obey not out of fear but because they have been habituated to want servitude, to no longer desire freedom. Rulers present customs as unchangeable nature and subjects get used to slavery without questioning it. La Boëtie’s thinks it is possible in principle for a population to get rid of their false consciousness and see reality from a rational point of view, but is pessimistic because avaricious and ambitious courtiers benefit from maintaining the system, while the people is dispersed and unable to act collectively. Whatever hope he had for a change came in the form of the desire that virtuous heroes would forcefully seize power and deliver their country from the evil hands of the tyrant’s underlings. No doubt Erhard thought this is what had just happened in France. He found in the renaissance author the spirit and voice of the republicans of the French revolution and felt certain that if La Boëtie had been alive he would have played a major role in abolishing monarchy in France in 1792.Footnote ⁸

Fichte may well have thought of himself as playing a part in this. The theory of moral perfection as enlightenment is aimed at helping people awaken from false consciousness and take charge of their lives. Understood in this way, Fichte’s ethics is politics by other means. The ethics of cultivation is political in the sense that developing the capacity for autonomy is what it takes to transcend the prejudices keeping persons shackled to an hierarchical and unjust regime. Because La Boëtie concluded that humans from the side of nature simply do not desire freedom he was lead to his pessimistic conclusion. Fichte, marked by Kant’s theory of autonomy, is compelled to draw a different conclusion. Admitting that most people have forgotten that they are free agents, his theory is intended to awaken the desire for freedom and thereby remove the legitimacy of the old regime both by unmasking the ideologies that propped it up and by preparing individuals for the task of self-legislation.

5. Perfectionism and emancipation

We can now return to the question of Fichte’s Kantianism in 1793. Summarizing his view, it is striking for its defence of a right to freedom, which is based on a duty to pursue a moral ideal which has a Kantian origin. Yet, Fichte’s natural rights theory has perfectionist aspects that diverge significantly from the anti-perfectionist position Kant went on to develop in his political philosophy and that shows that Fichte developed an independent Kantian position.

Recall that perfectionism is a theory where duties are defined in terms of their contribution to an individual’s full development of practical reason. Perfectionism can characterize either moral or legal principles and, as mentioned, Kant’s ethical theory can be understood as a form of perfectionism, where the moral will is perfected by conforming to the ideal of rationality. Kant also has a theory of the perfection of the species in his teleological writings. In the legal and political domain, however, where perfectionism justifies government interference for the sake of human development, Kant avoids the ideal. Kant rejects the notion of an enforceable duty to promote the perfection of others because it consists of an agent consciously setting ends in accordance with their own conception of duty, something no one can do for another person. (MM 6:386) If there is perfection to be had it is of the state institutions and that is the ruler’s responsibility. (MM 6:354) In this regard, Kant diverges from the main line of eighteenth-century political philosophy from Leibniz to Achenwall as well as later German idealists (Moggach Reference Moggach2009).

Kant’s rejection of perfectionism was not just a denial of certain goals as legitimate purposes of politics. He was certainly critical of absolutist rulers who took it upon themselves to secure the welfare and happiness of citizens, but he also rejected the idea that the government’s task could be to see to it that adult humans fully develop their moral nature. ‘But woe to the legislator who would want to bring about through coercion a polity directed to ethical ends!’ (R 6:96) He associated perfectionism with paternalism, government interference for the sake of the individual’s own good (Pallikkathayil Reference Pallikkathayil2016, Fahmy Reference Fahmy, Hanna and Grill2018). Paternalism is wrong because it denies the right everyone has to freedom, to be their own masters in organizing their lives, restricted only by the rights of others to do the same. The right to freedom protects choices regardless of whether they are worthy or not. From the perspective of the law, it does not matter whether persons pursue aims such as a life of education and humanitarianism or a life of debauchery and selfishness. This right to freedom, understood as the independence from the choices of others, made Kant’s legal and political philosophy formal and relational. By contrast, we have seen that Fichte in 1793 derives natural right both negatively from what the moral law forbids and positively from its contribution to human perfection. It seems clear that the justification Fichte offers is at odds with Kant’s view, since it exclusively references the good for individuals, and since it involves the use of public coercion but not for the sake of freedom as independence (in external relations).Footnote ⁹ The right to external freedom is an instrument in the service of the moral goal of cultivating moral autonomy. That conclusion is far from Kant, who avoided any kind of instrumentalism in his moral theory. What are the consequences of that from Kant’s perspective?

First, one might think that it makes rights conditional. To some extent this is true. Fichte’s positive legal principles, that mandate rights to nourishment, clothing, and lodging, are not (what Kant would call) strict because they are organized to pursuing ends and for that reason they are valid only under two conditions. First, they depend on actually reaching those ends. Given various empirical conditions of the world, the cultivation of sensibility may be more or less likely to result from procuring those goods. Second, the principles are conditional because there may be several equally good paths to the goal of perfection. Since there can be numerous ways to the end of cultivating sensibility by providing nourishment, clothing, and lodging there is no clear guidance as to what means to permit or forbid and as a result reason does not dictate what precisely right demands.

Yet, the negative rights Fichte identifies are not conditional. Reason sets the outer boundary of right, so that laws must not contradict the categorical imperative. The moral law establishes strict duties to respect the life and liberty of other human beings as a limiting condition on any civil law. Thus, there could be no right to treat others merely as a means rather than an end even if the justification is to cultivate the sensibility of that person or a group of persons (Fichte Reference Fichte2021: 46). Likewise, Fichte was of the opinion that war may lead to heroic displays of courage, which may have a cultivating effect on human sensibility, but he did not therefore defend a right for a nation to engage in aggressive warfare. Freedom of expression is defended as an inalienable natural right because it does not contradict a moral duty and because it is inherent to moral personhood, not because it is a means to moral cultivation (even though Fichte thinks it is) (Fichte Reference Fichte and Schmidt1996: 125–128). Consequentialism applies only to the things that are not prohibited by the moral law and where there may be several (mutually excluding) paths to the same goal.

From the perspective of Kant’s Metaphysics of Morals, Fichte’s theory of positive rights introduces desiderata into a theory of right that do not belong there. Someone who is told to respect the positive rights of another person and explained that the reason is that rights are good for that person’s development of sensibility for morality, would not be given a reason she could endorse as a citizen. It would be a restriction of her choice that would be arbitrary from a juridical point of view. Kant defends positive rights (welfare rights, for example) not for the sake of their efficacy in moral development but for their contribution to universal legal independence.

Considering these divergencies from Kant, one might object to calling Fichte’s theory in 1793 Kantian. To be sure, Fichte thinks of the justification of right not in relational terms but in ego-centred terms, in the sense that right is about the perfection of human predispositions, not about coordinating interacting agents. That puts him closer to Kant’s predecessors, including Wolff and Achenwall. Yet, Fichte’s theory is Kantian in the reliance on Kant’s notion of individual moral agency. While Fichte shares perfectionism with the pre-Kantian thinkers he stands closer to Kant because of the ideal that orients the theory. It is important also to be clear that the difference between Fichte and Kant does not lie in that only the former considers cultivation of character to be an important consequence of political institutions. Kant clearly does as well, and in Perpetual Peace argues that it is not from a good moral disposition that we should expect a good constitution, but the other way around, from a good constitution we can expect moral education. (TPP 8:336, 8:376; CF 7:92) The difference, rather, is in Kant’s rigorous distinction between ethics and right, so that that moral perfection does not figure in the justification for the constitution but is a mere side effect of it.

Writing before the publication of Kant’s major works in legal and political theory, Fichte took a point of departure from the insights of Kant’s writings from the 1780s: his theory of pure practical reason and his conception of enlightenment as emancipation most succinctly stated in the essay ‘An Answer to the Question: What Is Enlightenment.’Footnote ¹⁰ The result was a highly original theory where politics itself was a site for emancipation both from the oppression of human sensibility and from the false consciousness that held people in voluntary servitude to an unjust regime. That theory is an alternative Kantian path, which provides philosophical grounding for movements seeking political emancipation through the awakening of human moral consciousness.

Fichte was not the only one working on this emancipatory Kantian theory in the 1790s. A group of younger Kantians, including Erhard and Johan Adam Bergk, shared that Kantian agenda, which blossomed for a brief moment before it was eclipsed by conservative, romantic, and nationalist movements, which Fichte himself eventually would join (Maliks Reference Maliks2012). Erhard likely influenced Fichte’s turn in later writings away from his strongly individualist view. In his review of Contribution, published in 1795, Erhard argued that because revolutionaries act on behalf of everyone in society when seeking to overthrow a constitution such decisions cannot be just left to their arbitrary will (Erhard Reference Erhard and Haasis1970: 137). A people must become ripe for revolution by the awakening that enlightenment brings: ‘In so far as every people progressively approaches its maturity, in so far every people prepares for a revolution’ (Erhard Reference Erhard and Haasis1970: 94, my translation). That the legitimacy of a collective action requires a form of collective consciousness is something Fichte would proceed to develop in his post-revolutionary writings on national unity, culminating in the Addresses to the German Nation in 1806, where he defends national culture, defined through language, tradition, and literature, as a source of government legitimacy and collective emancipation (Fichte Reference Fichte and Moore2009).Footnote ¹¹ That view was included a renewed theory of moral cultivation but this time through national education.