322 A Positive Century (1815–1914)the undesirable eff ect of “freezing” international law into the state in which
it happened to stand at the par tic u lar point in time when the codifying was
done. From this standpoint, the modernist viewpoint of positivism was to
the fore. Positivists were frequently very conscious of international law as an
ever- growing, ever- evolving subject, requiring constant updating in the
light of ever- changing conditions in the real world. Jellinek was among
those who opposed codifi cation on this ground.
At the same time, there were memories of codifi cation as a standard tool
of natural lawyers, who, in the eigh teenth century, had sought to remake
positive law along the rationalistic lines marked out by the speculative sci-
ence of systematic jurisprudence. Codifi cation in this sense was designed
to remake law into a coherent, rational system free of gaps. But this was, of
course, precisely what positivists insisted that international law should not
be. International law, on the mainstream positivist view, was an assemblage
of basically contractual arrangements, a product of ever- changing human
will— and, as such, not susceptible, by its very nature, of being artifi cially
“tamed” or channeled into a single, neat intellectual system. More concretely,
it was objected that codifi cation in this systematic sense would entail cross-
ing a crucial line: between, on the one hand, merely stating the law and, on
the other hand, making new law. Making new law, the positivists generally
insisted, is and must remain the prerogative of states and not of self- appointed
intellectuals, who were all too likely to pursue their own favored dogmas as
to what the law should be.
Despite these misgivings by positivists, some scholars set about produc-
ing codifi cations on their own initiative. Th e fi rst major eff ort to encapsulate
international law into the form of a code of articles was by a German named
Alphonse von Domin- Petrushevecz, who, at the advanced age of twenty- six,
published a code in 1861. Shortly aft er this came the best- known private
codifi cation, by Bluntschli in 1868, which covered the whole of international
law. His text took the form of a set of rules with a commentary on each— so
that the overall result was to create both a code of international law and a
general textbook on the subject. Fiore followed in this path in 1890. In
1872, David Dudley Field published his Outlines of an International Code,
which dealt in large part with private law matters, being fairly cursory on
the law governing interstate relations.
Codifi cation also took a more modest form— of putting some selected
area of the law into order, rather than dealing with the whole of interna-