Breaking with the Past 227state practice. Th e general scientifi c ethos of positivism as an observational
discipline was most in evidence here. Th e principal data were envisaged to
come from the rec ords of history and state practice. Th e general ethos of the
empirical variant of positivism was aptly summed up in Justice Holmes’s
crisp assertion that “a page of history is worth a volume of logic.”
Of the three avatars of positivism, this one had the greatest mea sure of
continuity with prior international- law thought. It was a direct and obvious
successor to the pragmatic tradition of the seventeenth and eigh teenth cen-
turies, which extended from Zouche to Martens. Th ose writers are, how-
ever, best regarded as forerunners of positivism and not as true positivists
because they stopped short of denying the very existence of natural law. It
was that crucial step that was new in the nineteenth century. In terms of
Bacon’s biological analogy, the empirical positivists would be regarded as
ants— compiling data from state practice but pointedly not resorting to
speculation to go beyond what the data reveal.
Th e approach of Martens illustrates this point clearly. Martens was the
quintessential practitioner of the way of the bee, in Bacon’s analogy. Th at is
to say, he placed a powerful stress on state practice in his treatise. But he was
also careful to explain that, in doing so, his concern was evidentiary rather
than philosophical. He regarded the analysis of state practice as an eff ective
means by which deeper fundamental principles of law could be inferred.
And his ultimate concern was with those fundamental underlying princi-
ples, and not with state practice for its own sake.
It was on this crucial point that the nineteenth- century empirical positiv-
ists parted company with their pragmatist forebears. Th ey downplayed the
existence of abstract basic principles in favor of specifi c, individual rules of
law inferred from state practice alone. Stated in technical legal parlance, it
would be said that the nineteenth- century positivists (of the empirical stripe)
held state practice to be constitutive of law, rather than as merely providing
evidence for the law. In other words, it saw state practice as actually making
law, instead of merely revealing it. Martens could therefore be called a posi-
tivist in terms of his method but not in terms of his actual philosophy of law.
Th e transition from the pragmatic wing of the Grotian tradition to the
empirical positivism of the nineteenth century was neither conspicuous nor
abrupt. It was never announced in programmatic fashion or by a manifesto,
in (for example) the way that Comte had proclaimed the birth of his positive