Bees, normativity, and a methodological question

Who has a say on beehive normativity: legal theory or legal philosophy?

Bees are one of the most admired species in nature -- social, gregarious, productive, and the creators of an intensively organised society. Their beehive is a model of normativity.   

But the present age, bridging the natural and human sciences, is creating new questions for legal science beginning from a methodological one: Who has a say on bees’ normativity, legal theory or legal philosophy? 

The following short essay, dedicated to the World Bee Day 2022, offers a temporary answer. 

Welcome to 2022 World Bee Day! Today May 20th is the date chosen by the UN to celebrate bees and other pollinators. It reminds us how much natural life depends on their almost invisible presence but at the same time sounds an alarm bell. Bees are under threat and no effort should be spared to re-establishing a balance with nature for a sustainable development. It is perhaps the case that we are the veritable guests in nature. Insects have been around for 400 million years, while we have been around for just one million years, we are the latecomers. We should therefore look at bees with respect, and perhaps think that we have something to learn from them.

Do jurists have anything to learn from bees? Of course! But at the same time, those new lessons create some hard questions, the first of which regards the field that should deal with them: is it legal theory or legal philosophy? This question deserves to be tackled. 

“Who has a say on beehive normativity: legal theory or legal philosophy?”

What  should we learn from bees? If we look at the Western legal tradition we immediately see that one of the foundations of Western law is the principle that nature teaches us the foundational basis of common life, meaning by “us” humans and other animals. This is the normativity “which nature taught all animals” (Dig. 1.1.1.3: “quod natura omnia animalia docuit”) that regards the degree zero of social life: procreation, education, respecting parents. The lesson is that humans and other animals are fellows. This is the beginning of any human or animal society, which humans learn from observing animals. 

Medievals were careful of animals, they were concerned with their expressions and even their language. The model of the beehive was particularly powerful. John of Salisbury (c.1115–1180)  wrote that “the state must be ordered on the model of nature and, in particular, on the bees” adding that “cities that followed the model of bees have flourished in the most effective and rapid way,” and if humans behave according to justice “the honey’s sweetness expands on the city” (Policraticus, II, 21).

But beehive normativity has also a dark side. Hobbes destroys any optimism: nature is chaos, danger, abjection. “Let’s imagine that humans have come up suddenly like mushrooms” he wrote (De Cive, 8.1); they do not need to show gratitude to the Creator. They are worthless, their life is worse than beasts, hence they are entitled to turn their backs to nature and have nothing to lose (like the proletariat in Marx). Fearing violent death, humans built their own cities in separation from nature. Living in this bleak condition, nature is not some ideal we should all hope: on the contrary, is an anti-life, utterly anti-human, at best is a theoretical abstraction. 

If so, it seems that in the beehive there is no law. If law is about evaluations, qualifications, stimuli, repression, and ultimately types or standards to qualify facts -- strictly speaking there is no law. And if the above is missing, there is no difference among facts: law and ethics are swept away. Behind beehive’s beauty is a poetics of anti-law. 

Clearly, bees raise some questions for legal scholars, and these issues are more pressing now than ever. We live in the Age of Entanglement, which bridges in original ways humanity and nature. Cognitive sciences tell us that animals have an inferential instinct: they use what they already know to draw conclusions about what they don't know, anticipating what happens next to solve primary problems of eating and surviving. Biological anthropology shows ritualised behaviour in the animal world. In her iconic research on chimpanzees, Jane Gooddall described their elaborate rituals to neutralise aggressions and provoke submission. We even see objects differently, in fact they don’t look like "objects" anymore, and the simplest and unobtrusive objects (steaks, phones, bricks) raise new questions for incorporating bits of nature or living materials, they have their own life. 

We are now in the position to return to our original question: who should care about beehive normativity: legal theory or legal philosophy? 

Let us begin from philosophy. It seems that this field appears to be out of favour today, and attention is turning to theory. It is true that about half a century of analytical philosophy has dissuaded outsiders from entering this field. Its language has become famously impenetrable: "Few analytic philosophers have ever denied that nearly all the deliverances of normal science bolster Nozick's radical account of instances of nomological necessity" (please do not try to understand this phrase as it is computer generated). 

On the other hand, theory is user-friendly, it brings in the fresh air of interdisciplinarity and the suggestion of an intellectual engagement with, well, everything, as beautifully described in Philipp Felsch’s Summer of Theory. But theory works on a different plan from philosophy. It is true that some argue that they are interchangeable terms, but in fact they are not: even in common language we do not say the "theory of the past" and the "theory of the future", but we speak of the "philosophy of the past" and "the "philosophy of the future". Philosophy --  in its evolution from Aristotelian Scholasticism, Descartes, Hume, Kant, the many neo-Kantianisms up to current linguistic philosophies -- has a clear and recognisable identity. Its task is to address those open questions which have no definite and contingent answer. And the legal philosopher is the expert in those open questions.   

In conclusion, behind the beauty of beehive normativity is one of those open questions, an old and traditional question of legal philosophy: a question about Sollen. Given this premise, all theories focused on empirical facts are methodologically inappropriate. Therefore a field should be preserved, one that can offer answers without the assistance of empirical sciences: a critical legal philosophy.

In a word, the city that has a place for Socrates, who keeps asking people "what is x, what is y", is eventually a healthier place to live.