258 A Positive Century (1815–1914)On this view of things, there was little (if any) room left for the interna-
tional lawyer as critic, in the manner of Vitoria or Grotius or Vattel. Th e task
of the lawyer certainly was not to discern the content of natural law, for there
was (to the positivist) no such thing. Th e substantive content of international
law is to be determined by means of a careful understanding the method by
which it is made. Th e content of the law is, in essence, what ever it is that the
governments of the world have, de facto, decided that it should be. It is not
the task of lawyers to sit in judgment over government policy- making.
Th e result of this way of thinking was an apparent paradox. Natural law-
yers were, by temperament, social critics, ever striving to bring power to
heel under the rule of law. At the same time, though, the law to which they
were so devoted was static. It was an unchanging corpus of substantive
rules— applicable, to be sure, in widely varying circumstances, but funda-
mentally unvarying. Th e nineteenth- century positivists were just the oppo-
site. Th ey were conservatives in the sense that they left governments with a
largely free hand to operate as they wished, without any carping or nagging.
Th ey were nonjudgmental— perhaps to a fault. But their vision of law and
lawmaking was intrinsically dynamic. Constant change was its very es-
sence. In this very par tic u lar sense, the positivist lawyers could be called
“progressives.”
Th ere were those who doubted, though, whether constant change, un-
leavened by even a scintilla of bracing criticism, was necessarily a good
thing. Was it not possible that some kinds of change might be bad rather
than good? For the overwhelming part, the positivist lawyers displayed little
inclination to ask questions such as this. Th ey saw great progress all around
them and were conscious that they were playing a part in it, if only at the
humble ministerial level rather than as policy makers.
But some lawyers were keenly aware that the new scientifi c spirit of the
positivists had brought losses as well as gains, that “progress” has its costs.
One of them was the French lawyer Henry Bonfi ls, the author of the best-
known French treatise on international law of the late nineteenth century.
He complained that positivism “reduces the science [of international law] to
the role of a humble servant of practice” and deplored “the absence of critical
spirit” among his professional peers. Positivist lawyers, in his opinion, were
too subservient to established po liti cal authority. As a result, they tended to-
ward partisanship, seeking justifi cations for institutions or practices that