D. German Idealist Philosphy

Because the purpose of law is merely to protect the freedom of humans, in the view of Kant, the only subjective natural-right that can exist “is the freedom (independent from another necessary arbitrariness of another) so far as it can exist in conjunction with a general law“[89]. Freedom is the “only original right that man is entitled to because of his humanity[90]. For Kant, human rights such as freedom and equality are on the one hand principles "a priori”[91] upon which every positive-law status is based, on the other hand, all rights are dependent on laws.[92] This means that because of the indefiniteness as regards to the content of freedom and equality the concretion of these principles is only reached in the law-making process.

Under the influence of Kant and the French Revolution, Johann Gottlieb Fichte developed an extensive system of human rights. In the writings of his youth „Zurückforderung der Denkfreiheit von den Fürsten Europens, die sie bisher unterdrückten“ (the reclamation of freedom of thought of the European rulers which, until now have been surpressed) assumes the inalienability of human rights:[93]“A person can neither be inherited, nor sold, nor endowed; he cannot be the property of anyone because he is his own property and must stay that way. He carries deep within his breast, his consciousness, a spark of God which elevates him to a higher position than animals and makes him a fellow citizen of the world whose first citizen is God. He commands this plainly, and unconditionally-to want this, and not to want that; and does this, free and of his own accord, without any outside force. Man is, according to him, „free and must remain free: nothing may command him as if it were this ‘law’ within him”[94]. He has a right to everything which is not forbidden to him by this law, he has a right to the conditions under which, and only under which, he can act dutifully and to the actions which his obligation requires. Such rights can never be given up, they are inalienable. According to the view of Fichte, it is only in natural situations that man is free from any external contracts and is ruled by the law of his nature.[95]

In the scientific treatises of the 19th Century, it was partially the anchoring of human rights in natural law that provided more awareness[96]. However, along with the natural-law educated beliefs of the people with their inherent rights, is the concept of legal positivism, which disconnects itself completely from any anchorage in human rights. In the Hegelschen concept of law the function of natural law which is to create freedom, is ultimately removed[97]. The release of freedom from its anchorage in natural law was founded by Georg Wilhelm Friedrich Hegel’s idea of freedom as spirit. Freedom is a “substance of the spirit“ [98] which stands against nature which is incapable of freedom itself. Nature showed that in its existence alone there is not freedom but necessity and coincidence[99]. Hegel sees freedom’s anchorage not only not in natural law but also not in state law.

Date: 2015-02-16; view: 829