Of Spiders and Bees 193sort. Moreover, reason could not be the sole basis of law because, as he wryly
observed, it “usually off ers arguments on both sides” of issues. When that
occurred, as it frequently did, the matter at hand must then be resolved by
an “appeal to custom” and a search for “the consensus of opinion among
nations.” Th is entailed drawing on “usage long continued in the making of
treaties between nations, and upon widely established pre ce dents.”
Bynkershoek was a modernist by temperament. He frankly accepted that
international law, if it was regarded as rooted in the customary practices of
states, could not be static. “[A]s the habits and customs of nations change,”
he pointed out, “so does the law of nations.” For this reason, recent pre ce-
dents are of more value than older ones, since they can be expected to refl ect
the current practices of states more accurately. His outlook can fairly be de-
scribed as utilitarian, since he expressly proclaimed “very expediency” to be
“the mother... of justice and equity.”
Also writing in the pragmatist vein was Gabriel Bonnot, Abbé de Mably. He
was the elder brother of the phi los o pher Étienne Bonnot de Condillac. Th e
family came from the Grenoble area. Although he was in holy orders, Mably
did diplomatic work for the French foreign ministry in 1742– 46. Armed with
this experience, he published, in 1748, a two- volume treatise on Le droit pub-
lic de l’Eu rope fondé sur les traités (Th e Public Law of Eu rope Based on
Treat ies). As the title indicates, treaty practice was his principal source,
rather than principles of natural law. Also as indicated in the title, the sub-
ject was not international law in general, but instead something labeled the
“public law of Eu rope.” Th is diff ered from general international law in be-
ing hegemonic. Mably thought that any system of interstate order had to
rest on the dominance of a leading power. In ancient Greece, for example,
that role had been performed by Sparta, the most militarily powerful of the
Greek states. In contemporary Eu rope, Mably envisaged that Prus sia would
take the lead.
Another writer— and indeed the supreme one— in the state- practice vein
was the German Johann Jakob Moser. A native of Stuttgart in the Duchy of
Württemberg, he studied at the University of Tübingen, where he proved
suffi ciently impressive to be appointed professor of law at the age of nine-
teen. He went on to a number of administrative appointments in the ser vice
of the Holy Roman Empire— and also to become its foremost constitutional
authority. In terms of sheer bulk, he surpassed even Wolff in producing a