chapter six

Breaking with the Past

B

y – , French revolutionaries and their grand principles were in very

bad odor— at least in the eyes of the governments of the allied states that

had defeated revolutionary (and imperial) France, aft er more than twenty

arduous years of war. Among the products of the revolution that the victori-

ous powers were determined to bury were appeals to natural rights against

established authority. It had become all too apparent how much damage

could be done by persons whom the British politician and polemicist Ed-

mund Burke derided as “speculatists,” with their grandiose plans for the

wholesale replacement of a corrupt present with a rational future. Burke

had nothing but scorn for “those extravagant and presumptuous specula-

tions” that lead revolutionary leaders “to despise all their pre de ces sors, and

all their contemporaries.” Th e proper course of action, in his opinion, is to

build on the solid basis of the past, and always with due regard to the con-

crete realities of human experience.

International lawyers in the nineteenth century— an unrevolutionary

group if ever there was one— largely followed Burke’s advice. Ironically, in

so doing they made a revolution of their own. Th e monarch they overthrew

was not, however, of human fl esh. It was natural law. It is true that natural

law had been gradually loosening its grip over lawyers— at least those of the

Grotian persuasion— throughout the eigh teenth century. But the nineteenth-

century positivists went a decisive step further, by rejecting natural law

wholesale and in principle, instead of merely reducing their reliance on it, as

writers like Bynkershoek and Martens had previously done. International

lawyers would now, for the fi rst time, begin to congregate at the extreme

pragmatic end of the international- law spectrum. Th e age of the ants had

arrived.