The Sollen as Otherwise than Being. Notes on Hermann Cohen, Hans Kelsen and Emmanuel Lévinas

Abstract

A crucial Kelsenian thesis was the criticism of the dualist thesis according to which the State exists before the law. It is against this theory that he wrote his first great book, Hauptprobleme der Staatsrechtslehre. In the Foreword to the second Printing, Kelsen recognises that his main intuitions had perfectly been developed by Cohen. Cohen’s ethics helps to understand the distinction between Sein and Sollen. Kelsen explicitly said that such distinction cannot be the object of conceptual analysis; they are elementary concepts. What I will suggest is that such elementary concepts can be analysed on the basis of Cohen and Lévinas’ ethics. By virtue of the contribution of Lévinas, it is possible to keep the distinction out from the realm of neo-kantian postulates, and to give to the Sollen an ethical dimension. The Sollen is not only a category necessary to describe positive law in normative terms; it is also central—as otherwise than being—in order to explain the concept of humanity. International law, conceived as Sollen, does not need to exist. International law can be conceived as a divine command. Only when the individuals assume their responsibility, humanity, not only in the pure ethical relation with the Other, but also in social terms, does emerge. My main point is that the concepts of Sollen and Humanity are inseparable, to the extent that a human being, in his biological dimension, makes himself a human subject when he responds to (and not just conceives) the natural world in normative terms, a world in which he/she is a responsible subject.

My enthusiasm for Judaism is rooted in my conviction of the ethical validity implied in our idea of God. My understanding of Judaism stands within the context of my scholarly work. Hence I feel particularly fortunate that prior to my presentations of more extensive works on the ideas of Judaism I had the opportunity to demonstrate the place of Judaism within a philosophical system. I do not entrust the guidance of my Jewish consciousness to the instinct of loyalty, loyalty to one’s own religious denomination or tribe, but to philosophical methodology, in as far as it is my share (Hermann Cohen).^a

Of course, the Jew is really the only man in the Christian world who cannot take war seriously, and therefore is the only genuine “pacifist.” (…) the Jewish people stands outside the world, which does not yet possess it; by living the eternal peace, it stands outside of a warlike temporality; by resting at the goal that it anticipates in hope, it is separated from the march of those who draw near to it in the toil of centuries. Its soul, which is satiated in the beholding of hope, withdraws from toil, action, fighting for the world (Franz Rosenzweig).^b

The visage of being that shows itself in war is fixed in the concept of totality, which dominates Western Philosophy. Individuals are reduced to being bearers of forces that command them unbeknown to themselves (Emmanuel Lévinas).^c

^aThis is an excerpt from a letter written by Cohen in December 1904 to Frankfurtloge, translated to English by Bruckstein (2004), p. XXX.

^bRosenzweig (1921), p. 351. Here and after, the year refers to the original edition, but the pages refer, when it is included in the list of references, to the English edition.

^cLévinas (1961), p. 21.