Breaking with the Past 255ciple of freedom” left states free to choose this option of dispute settlement
over others, at will (i.e., at the mutual will of the disputing parties). It is
therefore with good reason that the positivist attitude to war has been char-
acterized as one of laissez- faire. Positivist lawyers simply accepted war as an
inevitable— even if not quite normal— feature of international relations. In
Oppenheim’s terse summation, war was characterized as “but a fact of life
for the occurrence of which international law provides a body of rules.”
Th e “body of rules” to which Oppenheim referred were the laws governing
the conduct of war— in contrast to rules governing the resort to war, which
were now eff ectively swept away and replaced by policy considerations.
In general, then, mainstream positivists took a coolly detached view of
war. Th ey could even concede a certain positive value to it, by holding that it
could function as a source of new rights. It could be a means by which the
legal positions of states could be adjusted to prevailing po liti cal realities— in
eff ect, as a way of changing the law. As law reform mechanisms go, it was a
decidedly coarse one. But it must be remembered that international law had
nothing resembling a legislature that could continually make alterations in
the law as called for by changing circumstances. As a result of this, interna-
tional law was necessarily focused on the identifi cation and safeguarding of
existing rights— meaning that it had an innate conservative bias. Without
some kind of mechanism for change, international legal relations risked be-
coming “frozen.” War could function as that mechanism. On this point, the
change from just- war doctrine was drastic. It will be recalled that, in classical
just-war doctrine, just wars had been seen as conservative in character, as a
means for the enforcement of pre- existing rights. A victory in a just war
neither created nor destroyed underlying substantive rights. It merely en-
forced them. Th is position was discarded by the positivists, who were able to
see war as a progressive force, in the strict sense that it could operate to cre-
ate new rights (and also, of course, to destroy old ones).
It may therefore be concluded that mainstream positivism was somewhat
ambivalent on the subject of war. It certainly did not support pacifi sm. It
gave states a substantially free rein to elect to settle their quarrels by resort-
ing to arms. It even acknowledged that war had a positive role to play on the
international scene, by adjusting the rights of states to the realities of power
politics. At the same time, war continued to be regarded as a last- ditch resort,
as an exceptional mea sure, and not as a casual tool of day- to- day interstate