“L’au-delà du Sollen” Between Levinas and Kelsen: Ethics as Metaphysics and the Limit of Law as Primary Ontology

In this chapter, I shall ask about the relation—in Levinas’ footsteps—between ethical obligation, law and ontology arguing about the character of law as a liminal region between ethics and the theoretical domain. In this perspective, taking into account the notion of legal ontology, I shall question the discrepancies but also an unexpected convergence between Levinas’ notion of ethical obligation as “au-delà du Sollen” and of juridical obligation as limit and “simmetry,” on the one hand, and on the other the notion of transcendental Sollen, with wich Kelsen caught  the legal system’s structure. In the first part, I shall analyse Levinas’ critique of the primacy of ontology in philosophy. In critical reference to the notion of Sollen, Levinas outlines the notion of ethics as a first philosophy—i.e., metaphysics. If in TI (apophantic) truth is pointed as a second scene with respect to justice, in AE there is a tripartite movement. The ethical ordination is called to translate—partially betraying iteself—in justice, here designating the institutions; in this process the law appears as the limit that paves the way, through the comparaison des incomparables, to the theoretical scene. Law as an ontological region, distinct from other domains of being, brings us to Kelsen. With the transcendental Sollen, legal obligation frees itself from any relationship with the being, both physical (Sein) and metaphysical. However, the aim to grasp the inner structure of law necessarily leads to the definition of its ontological status—namely of its ‘being’: the validity of norms and its condition of possibility, the Grundnorm. The hiatus with Levinas is clear, referring to non-superimposable notions of metaphysics. However, on a critical look, the notion of transcendental Sollen allows us to have a better understanding of the law as limit, as a formal perimeter, and thus as ontology, leaving open the question of its relation with the ethical obligation.