Breaking with the Past 257furthest cry from the writing of Vitoria or Grotius, or even Vattel, who had
fully accepted that being an expounder of natural law entailed being a fear-
less critic of those who fell short of its standards.
Positivist lawyers accordingly disclaimed any attempt at foreign policy
making. Th at was the task of policiticians, not of scientists. Th e lawyers’ task
was to advise their po liti cal masters on the lawfulness or legal implications
of contemplated actions— that is, to render strictly objective, dispassionate
advice on the basis of rules whose content was determined by rigorous
analysis. Th e point was crisply summed up by an eminent Rus sian interna-
tional lawyer named Fedor Fedorovich Martens (no relation to the earlier
German Martens): “In a scientifi c system,” the later Martens fl atly averred,
“there is no place for po liti cal considerations.” On this point, all three ver-
sions of positivism were in ready agreement.
It has been noted that one of the chief hallmarks of positivism, in all of its
varieties, was its focus on method, that is, on how international law is made.
Th is was in marked contrast to natural law, which had concentrated virtu-
ally entirely on the substance of law. Natural law had scarcely anything to
say about procedural aspects of law, nor anything in detail about such fea-
tures of everyday life as states or governments. It was, above all else, a sys-
tem of norms, fl oating in splendid isolation above the chaotic, messy hurly-
burly of everyday life. Moreover, natural law was a static set of norms, never
changing. Th e challenge facing a natural lawyer, therefore, was to determine
how this static set of norms could be imposed or imprinted onto the teem-
ing richness of quotidian existence.
Th e positivist outlook was strikingly diff erent. It was fundamentally dy-
namic in character, in the sense that one of its most important missions is to
explain how international law can be changed, so as to meet the demands of
the ever- changing conditions in which it had to operate. Th e three variants
of positivism, it is observed, gave diff erent answers to this key question. To
the empiricists, international law was made by state practice, which pro-
duced customary law. To the common-will school, it was made by the cre-
ation of law treaties. To the voluntarists, it was made by the coordination of
self- governing units. More fundamental than these disagreements, though,
was the broad consensus that international law is made by the states them-
selves. It is not given to them from on high, for all eternity, in the manner of
rationalist natural law.