Breaking with the Past 235It remains the case, though, that the state is in a dilemma. If it adheres to
its constitution, then it must breach its treaty obligation. Conversely, if it
fulfi lls the treaty obligation, then it must violate the constitution. Th e gov-
ernment of the state therefore cannot avoid making an agonizing choice
between these two courses of action. Anzilotti’s point, however, is that it is
the state itself that faces this dilemma, not either of the two systems of law.
Th e legal systems both remain free of ambiguity or contradiction— and res-
olutely in de pen dent of one another. Th e real “solution” to this dilemma,
then, is that governments should be scrupulously vigilant and take the ut-
most care that they do not carelessly incur incompatible obligations. Th e
situation at hand, in other words, is merely a demonstration of government
negligence, not of any confl ict between the two systems of law per se.
To a layperson (and many lawyers, too), this line of reasoning might be
thought to have an aura of artifi ciality or of “logic chopping.” It must be re-
membered, though, that positivists were, in general, strongly committed to
taking a rigorously scientifi c, or logical, view of law. As in the natural sci-
ences, conclusions will sometimes emerge that appear startlingly nonintui-
tive to nonlawyers. Th en so be it. Th e task of the modern scientifi c lawyer is
the relentless pursuit of truth, wherever it might lead, and however strange
the results might appear to be at fi rst glance.
Concerning the common- will version of positivism in general, it may be
objected— and it was— that it is not really properly positivist at all. Th e rea-
son is that the necessary basis of this system is the underlying principle of
adherence to contracts (pacta sunt servanda). And this core principle, it may
be argued, can only be a principle of natural law. It had been so regarded
since at least the time of Hobbes. It may be contended, therefore, that the
common will merely determines the content of legal obligations, and that it is
the natural- law principle of pacta sunt servanda which actually makes agree-
ments legally binding on the parties.
Triepel accommodated this critique by conceding that international law
rests, ultimately, on a nonpositivist foundation— not on natural law, but
rather on general human psychology. Anzilotti was not willing to make
such a concession. In the early part of his career (prior to a later change of
mind on the subject), he insisted on seeing the common will of states as bind-
ing in its own right, with no need for a nontreaty foundation. He contended