224 A Positive Century (1815–1914)At the core of Austin’s positivist theory of law was the insistence that law,
properly speaking, must be seen as a system of commands and sanctions
(i.e., enforcement actions), rather than of abstract, general norms, as it was
in the natural- law scheme. “[E]very law simply and strictly so called,” Aus-
tin pronounced, “is set by a sovereign person, or a sovereign body... , to a
member or members of the in de pen dent po liti cal society wherein that per-
son or body is sovereign.” When that law is disobeyed, a sanction will fall
upon the wrongdoer with at least a moderately high degree of certainty. More-
over, Austin had a very strict view of what actually counted as a true sanc-
tion: punishment infl icted by the sovereign upon the misbehaving subject.
Given these exacting requirements, Austin had little diffi culty in exclud-
ing international law from the category of law in the strict sense. Most fun-
damentally, the international system was fatally handicapped by the absence
of a sovereign. Its rules (so called) were, in his opinion, merely “opinions or
sentiments among nations generally” and, for that reason, could not be re-
garded as truly law.
International lawyers, not surprisingly, dissented from this extreme
conclusion— while at the same time generally endorsing the “positive phi-
losophy” as applied to law. Th e three major ways in which they went about
this will be described presently. More immediately, it is well to point out
certain core features that were shared by positivist international lawyers of
all persuasions. Th ree of these in par tic u lar should be noted, all of which are
aspects of a single underlying goal: to transform international law into a sci-
ence, in t he modern sense of t hat term— meaning, in essence, a body of k nowl-
edge gained by dispassionate study of the real world, and not in abstract and
logical speculations about that world.
First and foremost of the general features of this new science— and the de-
fi ning feature of positivism as a philosophy of international law— was the prin-
cipled rejection of natural law as law in the true and proper sense. Th e British
lawyer William Edward Hall forthrightly contrasted the two opposing concep-
tions of international law. One comprised “logical applications of principles of
right to international relations,” while the other (the positivist one) looked to
“the concrete rules actually in use.” (Hall pumped unequivocally for the lat-
ter.) In much the same spirit, the American jurist Oliver Wendell Holmes Jr.
scornfully dismissed the writings of natural lawyers— the “the à priori men,” as
he derisively termed them. “Th e life of the law,” insisted Holmes (ever ready
with a memorable phrase), “has not been logic: it has been experience.”