266 A Positive Century (1815–1914)will of men. Most Right is not invented, but discovered and recognised,
found not formed.Bluntschli then proceeded to stress that the concept of right (droit) predated
that of law (loi). International law, he went on to emphasize, is not merely a
balancing of momentary interests. It is “a law of necessary principles, based
on the nature of the relations between peoples and on the duties of civilised
nations vis-à- vis humanity at large.” Solidly in the spirit of natural- law
writing, he distinguished rules that are “simply articles of a treaty” from
rules that “are laws by their essence.”
Also in the classical spirit of natural law was Bluntschli’s assertion that
international law applies over literally the entire globe, rather than being a
c r e a t i o n o f E u r o p e a n c i v i l i z a t i o n s p e c i fi cally. He explicitly rejected the posi-
tivist thesis that law is a product of the free will of states, insisting instead—
borrowing the terminology of Wolff — that it is a “necessary law” that binds
states by its own intrinsic force and merit. Rules of natural law are binding
even on states which explicitly repudiate them.
In short, Bluntschli rejected the general positivist theory of international
law as being essentially contractual in character. He conceded that there may
be gaps left — or apparently left — between various specifi c rules. But they are
only apparent and not real, for the very purpose of the science of law is to fi ll
any such gaps by the application of general principles— derived, of course,
from natural law. In fact, this question about the possibility of gaps in the
law can be regarded as virtually a defi ning feature of the opposition between
positivism and natural law in the nineteenth century (and beyond). Positiv-
ists, with their contractual image of international law, naturally concede the
existence of empty places in the law in areas where agreement had not been
reached by the states. Natural lawyers, in contrast, tend to hold interna-
tional law to be a comprehensive, gapless system, with any apparent holes to
be fi lled (as Bluntschli suggested) by pro cesses such as reasoning by analogy
or the application of abstract general principles.
States were certainly conceded, in Bluntschli’s opinion, to be free to make
various customary arrangements as they wished— but subject to the over-
riding consideration that these arrangements may not be contrary to natu-
ral law. Treaties can be rendered invalid by natural law, as he explained in
some detail. He specifi ed four types of treaty that would be invalid on the