Murphy Shimamoto

Judgement or Compromise:
Why Fichte should have Separated his Powers of the State

Introduction

This paper argues that the constitution outlined in Fichte’s Foundations of Natural Right runs the risk of unnecessarily disuniting the state. Fichte’s mechanism for ensuring trust amongst citizens against individual self-love is rightful laws guaranteed by state power. I contend that this has the potential to break down during a nullification crisis within which the self-love of interested parties would re-emerge as the decisive political alignment. The conditions for nullification to turn into a crisis would be when the ephorate and executive are in a dispute over Right regarding an issue which directly impacts the interests of two opposed factions. These factions would have to be sufficiently sizable not to be swallowed by a relative majority. In such a circumstance both sides could plausibly claim rightfulness while splintering along the lines of their self-love. The subsequent options in such a scenario would be disunion or civil war. This paper would like to suggest a solution to this unconceived of problem which separates the powers of government into branches which check and balance each other in order to be able to contain such crises. The ethos of legislation would then be centered around rightful compromise rather than rightful judgement. Beginning with an investigation into Fichte’s notion of self-love and demonstration of how laws fail to check self-love when the aforementioned conditions of a nullification crisis prevail, the paper will then conclude by arguing that such crises couldn’t only be solved through a system which institutionalizes compromise, but that Fichte himself, based on his own principles, should be in favor of such a course of action.

Trust and Self-Love

Regarding the establishment of the social contract Fichte states “since neither party can know the inner dispositions of the other…both would have to make it impossible, physically impossible, for themselves to violate one another further.”¹ It is this impossibility of one party to rationally breach the Right of another which allows political relations of Right to exist and which necessitates the existence of the state for “they would have to place…their entire power, into the hands of a third party they both trust.”² Fichte takes self-love, the pursuit of one’s own interests even to the detriment of others, as an axiomatic fact of human nature. However, even if people limited this disposition, everyone could still be concerned about others acting against their interest since there is no guarantee against it. Hence, there is no trust between individuals. In order to create trust, i.e. the certainty that individuals will not act to the detriment of others, a third party capable of preventing these violations must emerge which has the requisite power to ensure limits on self-love. The state is this third party which is authorized to settle matters of Right between citizens, hence why Fichte will imbue it with all the positive powers of government. Right here refers to the limitations on one’s self-love necessary to grant each individual their own free sphere within which they can pursue their interests while not encroaching on the free spheres of others. Fichte charges the executive office, with the final decision on all questions concerning Right, subject only to the negative power of the ephorate. However, if we focus on Fichte’s political theory a bit longer from the perspective of estates then we will see that Fichte’s attempt at immunizing self-love through the power of the state, i.e. reprogramming egoism into political solidarity, actually allows for a rightful disposition to relapse into a selfish disposition during a crisis, which could metastasize throughout the body politic and precipitate its collapse.

The citizen is supposed to be guaranteed of his Right against other citizens because “everyone is to be shown that it is absolutely impossible within this union for any power to take action against him other than that of the law, and that every other power will be immediately repelled by the law.”³ Now, we can see that by equipping the state with a power absolutely irresistible to the force of any single or coalition of private interest, Fichte hopes to make Right absolutely guaranteed. However, this guarantee isn’t one in which every member is in fact physically incapable of ever committing a breach of right, say a situation in which all citizens are locked in a prison, but one in which it is rationally impossible to do so. This is clearer when Fichte talks about how a criminal can be rehabilitated. The state and the criminal’s fellow citizens should be assured that the rehabilitated will not recidivate because “political reform…the love of oneself for one’s own sake, concern for the security of one’s person and property; and the state can without hesitation adopt as its fundamental law: love yourself above all else, and love your fellow citizens for your own sake. In the hands of the penal law, this love of oneself above all else becomes the very means by which the citizen is forced to leave the rights of others undisturbed, for any harm he does to another is harm he does to himself.”⁴ Crucially, when Fichte talks about a guarantee against violations of Right it is a guarantee against any violation of Right being a rational action. If the state has sufficient power to carry out punishment and protection, and is in possession of adequate policing powers to ensure the impossibility of evading capture, then it will never be rational for a citizen to violate the rights of others. In this Fichte assumes a rational reorientation of self-love. As nothing is to be gained through criminality other than punishment, self-love will then be channeled into a political solidarity that seeks to uphold the rightful constitution as the best avenue for allowing each citizen’s self-love to achieve his ends (as it is protected in its sphere of freedom). This paper endeavors to substantiate that this claim isn’t merely the ground of Fichte’s state and constitution but also the origin point for its potential demise in a nullification crisis.

Nullification Crisis: Peoples in the People

For Fichte the full powers of interpreting, implementing, and legislating Right must belong solely to the office of the executive which “includes the entire public power in all its branches.”⁵ However, were Fichte to end his constitutional arrangement here the path towards despotism, where the executive would be capable of ruling selfishly in his interest against Right, would be unfettered. The state’s role as a third party which the citizens can trust to rule rightfully would lack guarantee and thus dissolve the constitution. Fichte’s safeguard against governmental self-love is the negative power of the ephorate which can contest the legitimacy of an executive’s judgement. Once the ephorate veto an executive decision the matter is devolved to the people who will then vote to decide whether the executive’s action or the ephorate’s prohibition is in breach of right. The ephorate “have an absolutely prohibitive power…to nullify henceforth all administration of Right whatsoever; to suspend public power completely and in all of its parts.”⁶ Let’s assume that all of Fichte’s other barriers against both the executive and ephorate’s acting unrighfully work perfectly. Even in such a case, Fichte’s attempt to balance rightful judgements between a merely negative and positive power threatens disunion.

Fichte writes “all the members of the state are only private persons and not the populace…Each person’s will is only his private will, and the common will is expressed only through the will of the superior power. The populace, as such, do not have a separate will…until they have detached their will from the will of the executive power.”⁷ For Fichte a common will is assured on the basis of Right insofar as each citizen willingly limits his own free sphere in order that other citizens may likewise be in possession of their own free spheres. The common will then becomes the will belonging to each citizen that the rightful allotment of free spheres be maintained against unrightful violations. Hence “Each individual makes a contribution to the protective body…he does not entirely alienate himself or what belongs to him…All individuals are included in the protective body, but only partly so.”⁸ Fichte criticizes Rousseau for not recognizing that a rightful state is grounded on a partial inclusion of citizens into the political order when he states that “Rousseau claims unconditionally: each individual gives himself up completely.”⁹ What occurs in Rousseau’s general will, however, is a total insurance against disunion which this paper argues Fichte is susceptible to. For Rousseau, each citizen’s property isn’t only utterly dependent on the state but each citizen is necessitated to be raised and live identically to all others. Therefore, due to this indistinguishable homogeneity between citizens in matters of their property and opinion, they would all necessarily have identical wills. Fichte’s partial surrender of the citizen to the state ensures heterogeneity among citizens, especially citizens belonging to different estates.¹⁰ Therefore, let’s consider a ruling in which the property interests of various estates conflict. Here the motivation to band together in a social contract is imperiled. Rousseau’s homogeneous and totally dependent citizenry should be incapable of factionalism because each person’s self-interest is identical whereas Fichte’s populace have different types of property and therefore different interests in the case of a dispute. Since “The object of their common will is mutual security; but since, as we have assumed, persons are motivated only by self-love and not morality, each individual wills the security of the other only because he wills his own”¹¹, if the executive pronounced a judgement injurious to a certain estate and the ephorate then initiated nullification, the referendum which follows is likely to splinter along self-interested lines. As what would occur in such a circumstance is disagreement about what the rightful judgement is, there is no reason why self-love wouldn’t re-emerge as the determinant of one’s political alignment. This is due to the fact that, for Fichte, Right should always harmonize with one’s self-love in order to be effective. In this instance, however, the two contradictory understandings of Right are each supported by an institution whose very nature is to define Right. Therefore, citizens have no criteria with which to determine which verdict is obviously rightful and without a clear case where Right harmonizes with self-love there is no reason why individuals’ votes shouldn’t be cast in accordance with their differing self-loves. We must now explain why Fichte’s concept of the relative majority is insufficient to remedy such cases.

Fichte claims “it is so directly related to the weal and woe of each individual that because of its very nature, it will always be answered with complete unanimity, such that one can assume in advance that whoever answers it differently from the majority either is partisan or lacks sound judgement.”¹² However, the situation which could precipitate a nullification crisis is one in which this isn’t the case. In such a circumstance the weal and woe of each individual is intimately tied to the outcome of the people’s verdict regarding nullification. Yet, individuals are split by estate as to whether a positive or negative decision will be to their benefit. The question which could create a nullification crisis isn’t about executive overreach but centers around a judgement or law issued by the executive which is plausibly in accordance with Right yet would disadvantage and advantage different estates. Hence, the expression of dissent isn’t evidently a partisan assertion against Right but could be a plausible interpretation of Right. Fichte hopes that since executive decisions would be clearly illegitimate, and thus obviously contrary to the self-interest of all, the existence of dissenters is irrelevant because they would be so outnumbered as to either leave the state or willingly consent to the majority’s ruling. This is Fichte’s concept of a relative majority. However, when Fichte assumes that the minority “would obviously be too weak to resist the majority,”¹³ this is because he hasn’t considered the possibility that a dispute of Right could take place between estates. In such a case the majority will not be so strong as to have its way unchallenged. Therefore, it is incumbent on this paper to now sketch out abstractly the type of situation in which the nullification crisis could actually occur which fragments the people along the lines of the estates and which therefore isn’t a conflict which can be resolved peaceably and certainly through the pressure of an overwhelming majority.

We must again stress that for Fichte the rational guarantee against any violations of Right in a state is that “They will not do this, because what is Right is bound up with what is advantageous to them.”¹⁴ Therefore, we must now abstractly depict a scenario in which Right is under dispute and the outcome of the judgement divides the populace along their property interests, rendering the determination of Right advantageous to some and disadvantageous to others. Let’s take a scenario where the agricultural and manufacturing estates are in dispute. The executive issues a law which says that the increasing industrial power of surrounding nations, who we cannot trust, will within the decade give them such military supremacy that we would surely be defeated in a war. Therefore, the state must double down on industrial production and can only do so by rerouting people from agricultural life into manufacturing. He justifies this disruption by citing Fichte’s statement that “Every will has itself (in the future) as an object. Everything that wills has self-preservation as its final end…Therefore, X, just as it wills itself, wills the security of the rights of all.”¹⁵ The executive interprets this statement as saying that since Right demands that we all will the mutual security of each other into the future, this radical reorganization of our estates is necessary in order to ensure the perpetuation of the state itself which ensures our security and property. In this scenario the ephorate would take a different view and initiate nullification. They would claim that the current property arrangement between the estates satisfies all the conditions of Right and that this radical reorganization would be a despotic act in contravention against the rightful state of affairs. The ephorate would invoke Fichte’s claim that “The first ground of all property is my having subjected something to my ends…Freedom and continued existence are essentially united…The future is contained in present activity.”¹⁶ They would interpret Fichte’s claim as supporting their view that this radical reorganization sets a terrifying precedent in which the property of all is rendered precarious, despite it having been rightfully doled out to individual citizens who have honored the social contract and who have rightfully subjected their property to their ends and planned their lives accordingly. The ephorate may argue that perhaps the justification of the executive is plausibly legitimate, however, that it doesn’t correspond to the current state of affairs. In fact, they could claim, the surrounding states are much more peaceful than the executive imagines and even if it were the case that their new found industrial might would make them more bellicose they would invade countries abroad which are less able to defend themselves and rich in resources unavailable within their own territory. Since the executive’s justification refers to a future contingency and is therefore uncertain, dispute and doubt are unavoidable. If the future were to turn out as the executive envisages then the act isn’t only rightful but necessary. If the future event panned out in accordance with the predictions of the ephorate, then the executive’s actions may not only be unnecessary but unrightful. In this situation the crisis is now devolved unto the people. Since the pro-industrial expansion and the pro-agricultural conservation factions can both plausibly claim Right, Right can no longer be a check on “our assumption of universal egoism.”¹⁷ Therefore, in this matter the votes are likely to split along the lines of self-interest, thereby dividing the state citizenry. Furthermore, the size of the estates are too large for a relative majority to subsume their adversaries. Therefore, there is either disunion or civil war in response to the nullification crisis. But we must now ask whether there could be a better way.

Rightful Compromise not Rightful Judgements

Fichte reminds us that “within the general parameters of rightfulness, an infinite number of modifications are possible, and it is these further determinations that are changeable.”¹⁸ Therefore, having run into a crisis of disunion, we should question the validity of Fichte’s method of passing judgements within the parameters of Right. Fichte’s executive office passes judgements which are either totally in accordance with Right or not. But why must Fichte’s legislation be framed in a stark either/or, especially since, we have argued, this could precipitate a nullification crisis leaving the only avenues of redress as rebellion or secession. Why should Fichte’s rightful legislation be crafted and checked in a mechanism which recognizes only absolute rightfulness instead of through a process which reflects those infinite modifications of Right. This final section will sketch a brief picture of how the laws passed in a system with separated powers could remain within the bounds of Right and block such nullification crises.

Rather than judgements which split between supporters and dissenters, what if the two groups could be unified through a compromise sufficiently acceptable to both parties. This could be achieved through a bicameral legislature where the lower house is elected to represent the common will and the upper house, interested parties along which disunion is likely to mount (in Fichte’s case the estates). The lower house could activate legislation in the name of Right which could aim to push forward radical rearrangements in the system. The upper house could rework that legislation to ensure a compromise acceptable to both sides affected by the new legislation. Let’s say the upper house is split between agriculturalists and industrialists. Fichte might counter that in this scenario the two sides could be caught in a deadlock and would thus be unable to resolve the tension between factions. However, in this case there is the possibility that a faction emerges which drafts a compromise between the two estates acceptable to both. If this faction doesn’t emerge then the situation is no better off than in Fichte’s original constitutional arrangement as in that case there is no possibility for reconciliation between both sides. This rearrangement would create the possibility of preventing an either/or, disunifying binary and, at least, allow for the possibility of compromise. In order to preserve his constitution, Fichte may want to counter that enshrining difference between the estates would enable certain factions to prevent the passage of rightful laws unless they are given special benefits in addition. However, Fichte wouldn’t be able to make such an assertion because he has assumed rightful legislation is obviously to the benefit of everyone. There is, thus, no self-love based incentive for factions to stall legislation which would better their circumstance. Therefore, our proposed solution would, on the basis of Fichte’s own terms, provide all the positive aspects of an executive without the risk of disunion which he didn’t see.

Fichte should be willing to accept such an arrangement on the basis of his own theory. In the case of criminals he says that as a matter of firm right “As soon as either of the parties goes even one step beyond his limit as specified in the contract, the contract is nullified, and the entire relation of Right based on it is canceled."¹⁹ Strictly speaking, a criminal needn’t be rehabilitated but is in fact an outlaw at the mercy of the state. However, citizens in the name of utility could, Fichte says, form a mutually beneficial compromise to avoid the intensity of a strict application of Right where “All promise to all other not to exclude them from the state for their offenses (provided that this is consistent with public security), but rather to allow them to expiate their offenses by some other means…Under it, the whole obtains both the prospect of preserving citizens whose usefulness outweighs their harmfulness.”²⁰ Given that compromise on strict judgements of Right is possible in criminal justice, in the name of greater utility, why couldn’t we form a constitutional arrangement capable of institutionalizing this spirit of compromise for greater Right in the name of defending the union which preserves all Right? Why must the union risk being sacrificed on one question of Right as opposed to forming a rightful compromise on a particularly contentious issue of Right leaving the rest of our rightful state intact? Naturally, the legislature would have to be checked against passing laws in breach of Right. This could be done by creating branches of powers, say an executive and judiciary alongside the legislature, all of which check each other. A further elucidation of such a system is beyond the scope of this essay.

Notes

¹ Fichte, Foundations of Natural Right, 93.

² Ibid., 93.

³ Ibid., 99.

⁴ Ibid., 237.

⁵ Ibid., 143.

⁶ Ibid., 151.

⁷ Ibid., 149.

⁸ Ibid., 178.

⁹ Ibid., 177.

¹⁰ Fichte discusses his idea of estates, such as manufacturing, agricultural, merchant, etc. estates, in his The Closed Commercial State.

¹¹ Fichte, Foundations of Natural Right, 133.

¹² Ibid., 158.

¹³ Ibid., 157.

¹⁴ Ibid., 153.

¹⁵ Ibid., 134.

¹⁶ Ibid., 184.

¹⁷ Ibid., 134.

¹⁸ Ibid., 162.

¹⁹ Ibid., 168.

²⁰ Ibid., 227.

Works Cited

Fichte, Johann Gottlieb. Foundations of Natural Right. 1797. Cambridge UP, 2000.