MORAL FOUNDATIONS OF A FREE REPUBLICleaves open the question whether there is anything that can never become law, that is,
anything that always remains unlawful in essence or, conversely, anything that by its very
nature is unalterably a right and precedes every majority decision and must be respected
by it.^2
Modernity has formulated a reserve of such normative elements in the different dec-
larations of human rights, thereby withdrawing them from the discretion of majorities.
Now, one may well, in the present state of affairs, be content with the inner evidence of
these values. But even such a deliberate restriction of the question has a philosophical
nature. There are, then, values that follow, in and of themselves, from the essence of
human existence and that are, for that reason, inviolable for everyone who is human. We
will need to return to the question of the scope of such a conception, particularly as the
evidence for it is by no means recognized in all cultures today. Islam has defined its own
catalog of human rights, one that differs from the Western one. And while it is true that
China is today determined by a cultural form that originated in the West, namely, Marx-
ism, China—so far as I know—is nonetheless asking whether the issue of human rights
is not just a typically Western invention that needs questioning.
New Forms of Power and New Questions about How to Manage Them
If what is at stake is the relationship between power and law, including the sources of the
law, the phenomenon of power itself must be examined more closely. I don’t want to
attempt to define the nature of power as such, but rather to sketch the challenges that
confront us as a result of the new forms of power that have developed in the past half-
century. In the period initially following the Second World War, shock at the new destruc-
tive power that man had gained with the invention of the atomic bomb was dominant.
Man saw himself suddenly capable of destroying himself and his world. The question
arose: What political mechanisms are needed to avert this destruction? How can such
mechanisms be found and made effective? How can ethical forces that shape such political
forms and lend them effectiveness be mobilized? In reality, competition between the op-
posing blocs of power and the fear that the destruction of the other would lead to one’s
own destruction protected us for a long time from the terrors of atomic war. The mutual
limitation of power and fear for one’s own survival proved to be saving forces.
What causes anxiety now is no longer so much fear of the great war, but rather fear
of an omnipresent terror that can effectively strike anywhere and be everywhere. Human-
ity, we have come to realize, doesn’t actually need the great war to make the world unliv-
able. The anonymous powers of terror, which can be present everywhere, are powerful
enough to affect us even in our everyday lives. But the haunting possibility remains that
criminal elements could gain access to means of wholesale destruction and so deliver the
world to chaos, outside the political order. For that reason, the question of law and ethos
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