Hans Kelsen, the ontology of ought-to-be and the problem of factual division

Abstract

This paper explores the separation between questions of fact and questions of Law in the legal field, highlighting that, traditionally, they are treated as distinct domains: while the former are associated with the immutability of nature, the latter are understood as products of human language for resolving social conflicts. The Kelsenian theory, as an example of legal formalization, reinforces this separation, emphasizing the constitution of an ontology of the ought-to-be in modernity. The study’s hypothesis is that the ought-to-be is closely linked to modern Law, which implies rethinking the dichotomy between fact and Law. The aim is to demonstrate, through a bibliographic reading of Hans Kelsen's work, how legal science seeks to distinguish the domains of nature and law, despite both sharing the same metaphysical structure. To this end, the paper is divided into three sections. The study concludes that the rift between being and ought-to-be is central to the construction of the modern concept of Law.