Shadows across the Path 455ordinary treaty is to implement the joint will of the parties that concluded it.
Constitutional systems, in sharp contrast, have a will or purpose of their
own, distinct from those of the individual states that are parties to them.
Th ey are ongoing, autonomous regimes— living, growing, evolving, con-
stantly self- adjusting in the face of ever- changing circumstances. Álvarez,
in a dissenting opinion from the World Court in 1951, expressed this point
vividly, with regard to multilateral conventions generally. Such conventions,
he insisted,must not be interpreted with reference to the preparatory work which
preceded them; they are distinct from that work and have acquired a
life of their own; they can be compared to ships which leave the yards
in which they have been built, and sail away in de pen dently, no longer
attached to the dockyard. Th ese conventions must be interpreted with-
out regard to the past, and only with regard to the future.It will be recalled that the nineteenth- century positivists had been sensitive
to the diffi culty posed by seeing international law as a set of rigid rules pro-
tecting vested rights. Such a conception of law was essentially a static, con-
servative one. But where the positivists had off ered war as a mechanism for
creating new rights and extinguishing obsolete ones, the constitutionalists
envisage a peaceful process— a legal system that contains within itself the
capacity to adapt to changing times.
Th e constitutionalists have also had a strong concern over what they call
the “fragmentation” of international law. Th is is, in a way, a sign of the em-
barrassment of riches that was now besetting the fi eld. Th ere has come to be
a fear that there might be too much international law in the world rather
than too little (as had always been the concern in the past). In par tic u lar, the
worry has been that there are too many specialized subsystems— for exam-
ple, economic law (which in turn comprised subcategories of law in the fi elds
of trade, investment, and intellectual property), human- rights law, environ-
mental law, law of the sea, criminal law— and that the norms of these subsys-
tems might very well turn out to be inconsistent with one another.
An illustration of how this could be so was off ered by Garrett Hardin, an
ecologist at the University of California at Santa Barbara, in a seminal article
published in 1968, entitled “Th e Tragedy of the Commons.” He was con-