chapter five

Of Spiders and Bees

F

rancis Bacon, the En glish lawyer, phi los o pher, and essayist, had a

delightful way with words (even if he did not pen the plays of Shake-

speare). Writing in 1620, he illustrated three contrasting ways of approach-

ing intellectual challenges by invoking the rival methods of the spider, the

ant, and the bee. Th e spider represented speculative thought, in which a writer

spins out ideas from within his own mind, in the manner of a spider spinning

out silk from its own glands. Th e ant represented mere mechanical conduct,

the mindless piling up of facts without any theoretical guidance, like the ants

piling up food for the winter. In between— and much the best of the three—

was the way of the bee, which involved gathering in material from the

outside world, but then transforming it qualitatively into something more

useful.

Th is charming analogy is a surprisingly useful guide to international le-

gal thought in the centuries following Grotius. Th e spiders were the natural

lawyers of the rationalist tradition. International law, to them, was largely

an intellectual challenge, met by the hypothetico- deductive methods of the

mathematician, and with logical consistency as the principal goal. Writers

of this arachnid persuasion will here be labeled as rationalists. Th e bees were

lawyers who sought to base international law more on the actual practice of

states— more specifi cally, to use state practice, instead of basic axioms, as

the basis for their speculation on the content of the law. Th is group will be

here referred to as pragmatists. Th is distinction between rationalists and

pragmatists is the most useful categorization of lawyers in the eigh teenth

century— more useful, as will be seen, than the division between the natu-

ralists and the Grotians, which seemed more obvious at the time.