ROBERT KOLB, Theory of International Law, Oxford and Portland, Hart Publishing,

2016, pp. 475.

[To be published in The Italian Yearbook of International Law, vol. XXVI, pp. 603-703]

The book under review is the latest (but soon to be dethroned) of the 30-odd volumes
edited, translated, or written by Professor Kolb, one of the most prolific international
legal writers of all time. As the author makes clear in a short Introduction, Theory of
International Law is not an entirely original work but a “shortened translation” of his
previous Théorie du droit international public (Bruxelles, Bruylant, 2013, pp. 830),
itself a vastly revised edition of the much earlier Réflexions de philosophie du droit
international (Bruxelles, Bruylant, 2003, pp. 434). Since, however, Kolb himself
translated the book, he put himself in the position “to aspire to renewed creativity”,
and claims that “a somewhat new text has emerged” (p. 1). On the French original
text Professor Pazartzis wrote that it is so rich as to defy description, standing as “une
nouvelle démonstration du style et de l’immense culture juridique de Robert Kolb”
(Annuaire français de droit international vol. 58, p. 933). The same holds true for the
English version reviewed here, except perhaps for style. Little remains of Kolb’s lus-
cious French prose; moreover, the need to squeeze information in the limited space of
an editio minor unhooked the author’s taste for parataxis, spawning hundreds of bul-
let-point lists, and many more on-the-same-line inventories of cases, maxims, au-
thors, concepts, definitions, all of which probably makes Kolb’s Theory the English
book with the largest number of semicolons ever. A second world record set by the
book under review, as well as by Kolb’s œuvre in general – an achievement that
makes it particularly welcome in this Yearbook – is the number of references to Ital-
ian legal literature, going far beyond international law scholarship. When I say world
record, I mean it: how many Italian international lawyers nowadays would draw in-
spiration from Luigi Lombardi Vallauri’s Corso di filosofia del diritto (Padua, 1981),
Salvatore Riccobono’s Lineamenti della storia delle fonti e del dirtto romano (Milan
1949), and Santi Romano’s Osservazioni sulla completezza dell’ordinamento statale
(Rome, 1925)? How many times has Giacomo Maturi’s Il problema giuridico della
Comunità internazionale (Milan, 1956) made its way into our ever shorter and
thoughtlessly compiled footnotes? Kolb’s mastery of the Italian language has the ad-
ditional advantage of sparing us the usual communità, azzione, and consequenze.
I do not want to scare away potential readers by saying that one risks buckling
under the weight of Kolb’s portentous erudition. That, at least, was my experience.
The reader is constantly held in awe before Kolb’s display of learning. Latin maxims
pop up at every turn, like tiny monuments to eternal wisdom. As it brings in a single
place many of the author’s meditations and insights, Theory overwhelms and hum-
bles. If I may borrow the opening phrase of its one-page General Conclusion, “[t]here
is no point in trying to sum up the long journey undertaken in this monograph” (p.
455). To give an idea of the awesome distance Kolb has been walking, a perusal of
the table of content largely suffices. In Part I, by far the longest (pp. 3-275), under the
title “The Main Pillars of the Legal System”, the history, foundations, structural prin-
-1-
ciples, sources, and subjects of international law are reviewed. “Questions of Meth-
od” are then discussed and, once the ground has been cleared of possible misconcep-
tions, controversial concepts like “Residual State Freedom”, “Effectiveness of Inter-
national Law”, and “International Community” are elucidated. In Part II, in a single
and in some way singular chapter (pp. 279-361), Kolb grapples with the “Relation-
ship between International Law and Politics”. In Part III (pp. 363-454), Theory comes
back to sober erudition, as Kolb portrays international law against the backdrop of
“general legal experience”, by which he means – to sample his shifting terminology –
“universal legal phenomena”, “cardinal legal notions”, or “fundamental legal-political
notions”, from which he singles out an intimidating set of topics for discussion: the
common good; justice; legal certainty; reciprocity, equality and proportionality; free-
dom; morals and social morals; will and reason; sanctions.
To discuss Theory’s myriad theses, while doing justice to their sophistication
and complexity, not even a book of the same length might be enough. In this short re-
view I will therefore confine myself to three aspects of the book that I regard as cru-
cial: I) The author’s use of history as a testing ground for his “concept of international
law”; II) His defense of natural law; III) His discussion of the relationship between
law and politics.
I. If Theory frequently looks back to history, it is because, as Kolb explains,
“philosophy cannot ignore these realities if it wants to avoid merely abstract systems
whose usefulness is greatly diminished by the lack of experience” (p. 42). In another
part of the book, the “painstaking” analysis of “empirical data” is praised as more
conducive to an accurate portrayal of realty than “deduction from some dogma” will
ever be (p. 240). I am not entirely sure that Kolb’s use of historical sources lives up to
his methodological assurances. His sources are exclusively secondary, limited, and
relatively old (I found only a few mentions of a burgeoning contemporary literature
and not a single reference to the Journal of the History of International Law), after all
Theory is about theory, not history! It is the way in which the author interrogates the
sources that failed to persuade me (W. Preiser, Frühe völkerrechtlilche Ordnungen
des aussereurpäischen Welt, Wiesbaden, 1976, is perhaps the one on which Kolb re-
lies the most; compare also R. Kolb, Esquisse d’un droit international public des cul-
tures extra-européennes, Paris, 2010). I approach this point starting from the outcome
of Kolb’s wide-ranging (if necessarily quick) historical survey.
For Kolb, “there have been public international legal orders and phenomena at
all times and throughout the world” (p. 42). This should not come as a surprise, as in-
ternational law, for him, “takes shape each time minimally constituted and independ-
ent public collectivities entertain reciprocal relations founded on the absence of a
common superior” (ibid.). I do not want to take issue with Kolb’s extremely abstract
concept of international law, which may not be entirely pointless for historical and
comparative legal research. It is the philosophical status he attaches to it that may
come across as slightly more problematic. “That international law regulates interna-
tional society”, he claims, “is a definition of synthetic nature, thus valid for all times”
(p. 68). I am not entirely sure of what “synthetic” means in that context. Was it meant
to signal that the definition culled from experience or that it is, rather, an a priori cat-
-2-
egory structuring the author’s perception of the social world? The truth may lie
somewhere in between, but – I am tempted to say – closer to its idealistic pole.
Kolb’s international law is “a universal and unavoidable reality” (p. 42), not only be-
cause it seems to be present everywhere and in all times, but – as it turns out – also on
account of its moral necessity. Human beings form groups, these groups establish
themselves in more or less delimited spaces, from which they project some sort of ju-
risdiction, a partial legal order. If the definition of the boundaries of such orders were
left to each one of them – Kolb observes – “there would be overlapping and conflict-
ing unilateral claims and ultimately chaos” (p. 49). International law is therefore not
only historically ubiquitous (if it really is); it is also normatively required to fend off
chaos.
The extra-historical rationality of international law, or its being an idealized
form of social interaction, is nowhere more visible than in Kolb’s gripping descrip-
tion of humanity’s hypothetical encounter with an “extra-terrestrial civilisation”. In
his view, “the legal relations between humanity and those aliens could only be regu-
lated by a new system of international law, [a]nd perhaps there would be a rule of in-
ter-celestial international law stipulating its primacy over any terrestrial international
law” (p. 61). What would the new legal order be like? Kolb hastens to add that it
would not be an extension of “our system of international law, which would be a
purely municipal law for the aliens”; however, “the new international law would
probably resembles in many aspects our current international law” (ibid., p. 61, note
73; writing more than 60 years ago about the same topic, W. Jenks, “International
Law and Activities in Space”, ICLQ, 1956, p. 112, had been more hesitant: “we
should […] make every effort to conduct our relationship with them on the basis of
law”; compare also the clever law-and-literature study by M. Benatar, “‘Au mépris du
danger, reculer l’impossible’. A la recherché d’un ordre juridique intergalactique”, in
O. Corten and F. Dubuisson (eds.), Du droit international au cinéma, Paris, 2015, p.
31 ff.; and the attempt at conceptual clarification made by F. Defferrand, “In dubio
pro persona ou la preuve dans la qualification juridique des formes de vie intelli-
gentes”, in Id. (ed.), Le droit saisi par la science-fiction, Paris, 2016, p. 99 ff. ). But
what if the aliens, unaware of Article 2(4) of the United Nations Charter – or, rather,
of its customary intergalactic jus cogens equivalent – subjugate humanity and sub-
sume planet Earth in their boundless domestic legal system? International law, for
Kolb, would survive the shock, since “[i]n its form as ‘horizontal’ and yet ‘public’
law”, it is “a perennial phenomenon”, it “is immortal”, and would therefore outlive
“even a federalization of the world” (p. 61). This is so, because “[p]ublic law will
never completely erase private law, even between public collectivities” (ibid.). Later
on, though, he will argue that the establishment of a world federation is “paradoxical-
ly […] based to some extent on the ‘killing’ of the international legal order in favour
of a new federal legal order” (p. 98). The difficulty here stems from the fact that Kolb
never spells out the theory of federation he espouses (see, for the complexities in-
volved in such a theory, O. Beaud, Théorie de la fédération, Paris, 2007), if any, and
that makes the very abstract concept of international law he employs indeterminate
too. On what basis, then, did he make his historical findings of degrees of interna-
-3-
tional-lawness with regard to, e.g., pre-Columbian societies or ancient Sub-Saharan
kingdoms? Here are some of them.
In pre-Columbian America, “[a]n international society must have existed”,
although “[t]he phenomena in question were situated somewhere between interna-
tional and federal law” (pp. 23-24). For Polynesian Islands of the 7th and 8th centuries
“it may be more prudent to speak of international legal phenomena rather than of a
fully-fledged international legal order”, although “the cultural and religious ties that
existed also allow us to project these phenomena into a legal order based on some
opinio juris” (p. 28). Not so in Sub-Saharan Africa, where (but when remains rela-
tively unspecified…) “[t]he individuality of each people or tribe was too pronounced,
the tendency to remain aloof from others too great, aversion to neighbouring tribes or
peoples too significant to produce a sense of common interests, or at least, of necessi-
ty, a consistent body of rules to govern mutual relationships” (p. 28). In China, the
culture of the Spring and Autumn era (771-481 BCE) is said to have been “geared
towards chivalry and respect for the rules”, and that “this constituted a notable basis
for opinio juris” (p. 37). A pact between the Egypt of Ramses II and the Kingdom of
the Hittites is characterized as “part of the section of municipal law touching on ex-
ternal relations”, thereby providing the nineteenth-century concept of “external public
law” with a 3,000-year pedigree (p. 49). A “confederation” among six North Ameri-
can native nations (1450-1777) appears, “to some extent”, as “a precursor of the Ge-
neva League of Nations of 1919” (p. 26). The Pharaoh and his scribes might not have
known about the need to administer an external public law, or to possess a doctrine of
international legal sources and subjects; but if they did not, it is only because they
lacked “a mature legal science” (p. 47). However, the fact that “[t]he rough jurispru-
dence of primitive peoples could not elevate itself to analytical levels of such refine-
ment” (p. 49), should not, in Kolb’s view, prevent the lawyers from
“acknowledg[ing] their implicit presence” (p. 47). For him, international law has al-
ways been there, only invisible to untrained eyes.
Not only our uneducated ancestors, but also professional historians should
bear the blame for the circumstance that the implicit legal substance the lawyers are
after does not protrude from history books. Kolb’s indictment against them is harsh
(later on he will draw up another one against political scientists): “historians […] sel-
dom display a sufficient sensibility for the legal side of the institutions they study.
Their explanations remain in most cases too summary for the lawyer, the terminology
is often loose and uncertain; the capacity to grasp normative phenomena in full is un-
der-developed, overall, these studies rarely go beyond the point where the description
would start to become rewarding for the international lawyer. Consequently, the law-
yer will have to fill the gaps left by having recourse to intuition more than to solid
knowledge” (p. 23). Intuition or imagination? As I lay a grateful hand on the cover of
the 1987 reissue of Pocock’s masterpiece The Ancient Constitution and the Feudal
Law (Cambridge, 1957) – and many others could be cited – I do not feel like confirm-
ing Kolb’s charges. The way in which he portrays international law’s history, while
interesting, has much more to do with his theory of law than with history itself.

-4-
 II. The author of Theory believes that natural law does exist, but cannot be ful-
ly thought out and turned into positive law, for “human knowledge is relative, partial,
uncertain, and linked to time and place” (p. 117). As the ideal is unsuited to the hu-
man condition, Kolb wisely settles for “a moderate and limited doctrine of natural
law” (p. 121). It is limited because the natural law it theorizes lacks autonomy: “It is
an open and fragmentary body of principles, to be complemented by the positive legal
orders with their institutions and sanctions” (p. 117). It is moderate on account of its
minimal content, as it accepts “only some supreme principles of justice, so as to
avoid, as it were, a reductio ad Hitlerum of law” (ibid.). Kolb does not use the latter
expression in its original meaning. As is known, Leo Strauss came up with it in the
early 1950s to name a new kind of fallacy, consisting in rejecting a view simply be-
cause Adolf Hitler held it too. Kolb seemingly alluded, rather, to some sort of Rad-
bruchian insurance against positive law turning Nazi. It remains unclear, however,
whether for him the basic principles of natural justice are automatically integrated
within existing legal systems, including international law, so as to compel public offi-
cials to apply them in lieu of conflicting positive laws. What Kolb writes about their
function seems to suggest that they lie outside the domain of positive law: “This body
of principles has a critical function: it will serve as measuring rod for the realisation
of positive law and as a benchmark to push the latter in the direction of the former”
(p. 117). To be sure, a natural law benchmark may also operate within the legal sys-
tem, as the system’s lex superior; in that case, however, no striving towards the “ide-
al” is needed, because conformity would be ensured in the realm of application by the
agencies empowered to set aside illegitimate laws. Elsewhere, the author hints to a
cognitive function of natural law, once again, then, to its being external to existing le-
gal systems: it would be “useful for understanding the ultimate foundation of the law
(as opposed to the construction of the sources of positive law)” (p. 121). Since Kolb
does not wish to engage in contemporary debates on the techniques through which
positive law integrates moral precepts, or on the merits of “inclusive legal positivism”
(on which, see K.E. Himma, “Inclusive Legal Postitivism”, in J. Coleman, K.E.
Himma and S. Shapiro (eds.), The Oxford Handbook of Jurisprudence and the Phi-
losophy of Law, Oxford, 2014, p. 125 ff.), it is difficult to say more about his views
on the matter. He is actually more concerned about the problem of the existence of
natural law.
Aware of fighting an uphill battle, Kolb deploys at least four types of argu-
ment. The first one is transcendental: it tries to show that the question as to the foun-
dation of law (whose meaningfulness is taken for granted) could not even be asked
without assuming the existence of some form of natural law. Natural law thinking is
thus seen as necessary for any philosophical reflections on the grounds of law. This
argument is followed by an empirical one, an outright transcendent one and, finally, a
pragmatic one. Let me consider them in turn.
Kolb seems to believe that the very act of asking the question as to the foun-
dation of law compels a naturalistic answer: “Why must one obey the legal rules?
What is the ultimate justification of the law?” (p. 101). This is not, however, the only
manner in which the foundational question may be asked. Consider a simpler alterna-
-5-
tive: “What grounds the law?” “A set of convergent practices accompanied by a sense
of obligation” would be a possible, hyper-classic, empirically-oriented answer à la
Hart. A positivistic question invites a positivistic account of the law’s foundation,
whereas a naturalistic question attracts an answer of the same kind: if, as Kolb seems
willing to argue, recovering the law’s foundation means coming up with a justifying
principle, then the latter will have to be moral in character; but if one wishes to know
why and how law exists as part of empirical reality, a causal explanation would be
required instead.
Kolb’s second move strikes out in a completely different direction. It consists
in portraying both legal positivism and maximalist natural law doctrines as forms of
reductionism. They should both be rejected because of their failure to grasp the reali-
ty of law in all its complexity, that is, for their descriptive inadequacy. By shunning
positive law – Kolb writes of “an abuse of deductive methods” – natural law theories
“atrophy and asphyxiate the living experience of the law”, whereas an exclusively
positivistic outlook would “anesthetise any critical spirit against the imperfection of
human endeavours”. Here, Kolb’s pen momentarily slips out of the descriptive line of
reasoning. What he calls “critical spirit” should not only be accounted for by theory,
if it exists in reality; it must also be kept awake – and this is, quite clearly, a moral in-
junction. But he is soon back on track. It is because “the law is a complex and multi-
faceted reality” that “[e]lements of ideals”, and of “finality”, must find a place in a
descriptive account of law, alongside positive elements. So far, so good. Kolb’s ar-
gument, however, becomes a little bit uncertain when he tries to integrate these ele-
ments in a theory of law. To begin with, he understands such things as the “produc-
tion of the law”, the “application of the existing law”, and the “critique of the existing
law”, as “different functions concerning the legal order”. As noted above, Kolb re-
jects a purely positivist account of law as belying the practice of criticising the exist-
ing law. Such practice, however, is by definition external to the law; it takes “the ex-
isting law” as a given. As Kolb himself writes, it concerns the law, which is a far cry
from being part of it. After all, if the principles advanced by law’s critics were al-
ready part of the legal system qua natural law, the raison d’être of the critique would
simply disappear. Finally, the fact that a critique of the existing law is inescapably
moral in character provides no evidence of the existence of some sort of natural law.
A principled appraisal of the law does not need such an “objective” prop to legitimise
itself (pp. 102-103).
Kolb may have felt that neither the transcendental argument nor the empirical
one provide a firm grounding for a naturalistic conception of (international) law. This
is confirmed by his sliding from the transcendental to the transcendent: “It is true that
natural law is not founded on a scientific conception of law; it is rather based on an
act of faith with regard to the existence of some cosmos and some objective princi-
ples of justice” (p. 120). Believing in natural law is, for Kolb, a “choice” one makes
against the limits of positivism, since positivism “presents its own weaknesses, in
particularly to be all to open to arbitrary power” (ibid.). But this, again, is debatable,
for a critique of positive law does not need to rest on the belief in the existence of
some objective law. Moreover, Kolb does not do justice to his own plea when, seem-
-6-
ingly in an act of exasperation, he announces his faith in natural law the way he does.
This can be gleaned from the arguments he mobilises in repelling the accusation of
anti-pluralism levelled against natural law conceptions.
In his view, the fact that such accusations may be well-founded “is no reason
to abandon the search for truth […] since we have in any case to suppose, to some
degree, that what we utter in this search is founded on reality”; otherwise, he adds,
“rational and serious discourse would not be possible”, making our high-minded de-
bates on justice and the good “a simple game, and thus ultimately a sham” (p. 121).
Kolb sees value in human striving towards ever better forms of social life, a natural
inclination of humans that the absence of some form of objective law would render,
in his view, meaningless. In that sense, the hypothesis of natural law reasserts itself as
a condition of possibility of the exercise of a human faculty we all should cherish.
Seen in its best light, Kolb’s is ultimately a transcendental argument based on a cer-
tain conception of human nature, which, for the rest, could have left the cosmic order
undisturbed. It should then not come as a surprise that, as a last resort, he defends his
position as based on “eminently pragmatic arguments […] valid even in the face of
all the theoretical shortcomings of natural law doctrines” (p. 122). And of course all
this is a (language) game – but certainly not a sham! – where appeals to collective
values or interests aim at persuading others to abandon their own positions, possibly
for their own good, and with no need to assume the existence of some sort of natural
law. It is all about rhetoric, persuasion, politics! This is not, however, a conclusion
Kolb could accept, as he sees these noble activities with suspicion, and – it would
seem – with a hint of morbid fascination.
III. The relationship between law and politics – or “policy”, the two terms be-
ing sometimes used interchangeably – seems to be Kolb’s main worry. Not only has
he devoted to the issue the book’s central part; the theme runs through the whole opus
as its most consistent thread. “What is power and what are politics? How do they re-
late to the law?”, asks Kolb (p. 279). He set about answering those questions in a
meditative mood, as if in search of definitions through introspection, nourished by his
immense culture. If I were asked to answer such daunting questions, I would have
clung, shivering, to sophisticated introductions like Steven Lukes’ Power (London,
2nd ed., 2005), Kennet Minogue’s Politics (Oxford, 2000), and Martin Loughlin’s
Sword and Scales (Oxford, 2000). Nothing of the sort is to be found in Kolb’s pages.
Neither Lukes, Minogue or Loughlin, nor – to name just a few authors in a wildly
haphazard way – Weber, Morgenthau, Kojève, Foucault, Derrida, Olivecrona, Unger
and Bourdieu. Among international lawyers, Kennedy and Koskenniemi are fleeting-
ly referred to, at p. 252, in a footnote, where it is said that “Critical legal studies have
[…] explored the dark side of international law, ie its being a mere instrumental dis-
course” (against this conventional mischaracterisation of Koskenniemi’s From Apol-
ogy to Utopia, Cambridge, 2nd ed., 2005, see A. Rasulov, “From Apology to Utopia
and the Inner Life of International Law”, Leiden Journal of International Law, 2016,
p. 641 ff.). Other international legal scholars like Marks, Orford, or Simpson (again,
to name just a few), let alone those of international relations scholars like Kratochwil,
are disregarded.
-7-
 At first blush, Kolb’s refusal to engage with other students of politics and
power may appear connected to his yearning for methodological purity. He regretful-
ly notes that “[i]n many sciences, questions of method have elicited keen reflection
and efforts to pin down one method or another; not so in international law” (p. 193).
Interdisciplinary studies are but a dangerous fad: “Non-lawyers have some difficulties
in understanding the ‘ought’ properly; this is particularly so for political scientists,
used, as they are, to the primacy of facts” (p. 288). “[T]heir contributions will not in-
frequently sail under an unidentified flag”, and “will invariably instill into the legal
body a series of fluctuations, imprecisions, and confusions” (p. 195) (I ask the reader
to take note of the body and fluidity tropes). Lawmaking itself is negatively impacted
by them: “The participation of many non-lawyers in international legal processes has
meant that the legal content of the materials is considerably diluted” (ibid.). “Ulti-
mately, it appears that systematic and methodological ‘purity’ are not required assets
in the international legal order”, the author bitterly quips (ibid.). “The tendency is to-
wards a return to politics and a relative decline in the law, be it in the guise of neo-
realism, critical studies, national independence or the need for changes to be effected
more quickly than the law seems to allow” (p. 256). “Too many schools of thought
exist” (p. 193), while method is one, the only “path for arriving at knowledge” (p.
203), through the repetition of the “methodical” operation of the legal craft, like the
skillful application of canonical argumenta and the clever avoidance of fallaciae (pp.
203-204). But this is not, I think, the main reason why the readers do not get what
they expect from Theory, especially if unaware of Kolb’s indifference towards the
mainstream and the latest fashions. As a reviewer, I could not avoid noticing Kolb’s
apparent disregard of modern and contemporary debates on the relationship between
law and politics. However, mounting a criticism against this omission would be com-
pletely off the mark, once it is realized that the author’s intention was to tackle the
topic not so much analytically, but allegorically.
Kolb’s account of the law-and-politics nexus unfolds like an ancient saga, or
myth, where the hero – an anthropomorphized International Law – sees his character
forged in the whirlwind of opposing primordial forces. In the resulting play (where
anthropomorphism is indeed pervasive) the Law appears adorned, and is associated to
dryness, firmness, regularity, centripetal forces, straight lines, discipline, the Ideal,
the Norm, whereas Politics is allied to the Fact and slave to the Real, and it comes
forward naked, wet, fluctuating, centrifugal. “The result”, Kolb writes, “is a highly
interesting struggle by the law in defence of its integrity and of policy for the realiza-
tion of its aims” (p. 156). Morals, too, plays a role in the drama, although a minor
one.
Occasionally sublimated into a romantic dance – “Law and politics are […]
fused together in a never-ending pas de deux” (ibid.) – the confrontation is often vio-
lent, since “the political facts put up fierce resistance to the further penetration of le-
gal disciplines into the political body” (p. 325). But as Law gains the upper hand, and
“penetrate[s] into a political body previously resistant to the progress of the rule of
law”, “a sensitive political area”, “some general principles of law […] flow into a le-
gally virgin space”, imposing “a certain regularity” (in the form of “deductive reason-
-8-
ing, analogies, and concretisations”). The result of this legal insemination is “the pro-
gressive augmentation of the legal content”. With the emergence of any single rule,
be it conventional or customary, there is “progress of the law within the enveloping
body of politics” (p. 355). Law appears here as a masculine force, irresistible and fer-
tile (at p. 291 law and politics are both characterized as “fertile sources”). For much
of the play, however, it is Politics that chases after Law. Politics is put on stage, not
as convex and intruding, but as insidiously percolating or flowing into the Law’s
many concavities – Kolb insists much on gaps, metaphorically defined as “opening or
aeration of the legal norm” (p. 208), or “black holes […] punched into the body of the
law” (p. 235). If a norm, like the self-determination principle, “straddles law and poli-
tics”, that is, dry land and wet marshes, it is said to be “amphibious” (p. 350). Being
drenched in politics is not law’s ideal state.
Law stays “in a more fluid, or semi-fluid, state”, until “[i]t resists the penetra-
tion of legal technique, which would imply regularity and impersonality”, thereby
averting “fluctuations” (p. 161). International law is, among the legal orders, the most
“fluid”. Not only is its “normative body […] considerably permeable to policy con-
siderations”; politics is part of its genetic endowment (“International law is also polit-
ical in itself, by its proper object”) yet, at the same time, totally extraneous to it, “an
external factor that has made its way into the alien body of international law” (pp.
174-175). “Effectiveness”, “practice”, and “the old distinction between legal and po-
litical disputes”, are duplicitous notions “through which power penetrates the law” (p.
291). One should also be wary of “pressures on the legal body in favour of collective
interests”, as “community-orientated institutions (such as international crimes or jus
cogens) can be abused by States, who will find it easy to cloak their interests in lofty
words” (ibid.). If, as Kolb observes, modern international law wears a “much tighter
corset” (p. 244), one must keep a watchful eye on politics “attempt[ing] to clothe its
achievements in legal robes” (p. 348), as well as on “political aspirations […]
cloth[ing] themselves with legal rules” (p. 350). It is also by means of such deceitful
disguises that “[p]olicy constantly makes inroads into the realm of law; it permeates
everywhere, lifting some veils…” (p. 127). But even more often Politics jumps up on
stage as “insolent effectiveness” (p. 310) and (not brute but) brutal fact: “the fact may
also attempt to establish a new order of things, requiring, more or less brutally, adap-
tation of the law” (p. 304). Law, however, is all but defenceless: “It is […] erroneous
to think”, Kolb explains, “that the law will simply accept defeat and abandon the fight
against the diktat of insolent effectiveness”; it will rather “see[k] allies in the political
world in order to maintain the threat of a possible response to effectiveness”, while
awaiting “the opportunity to take its revenge” (p. 310).
Oppression and mistreatment may end up attracting the Law’s aggressive re-
action, as in the case of the Baltic States’ newfound independence: “The victory of
the law was even pushed as far as proclaiming the fiction – a true kick up the back-
side of arrogant effectiveness – that the three States had legally never ceased to exist
as independent entities” (p. 311). In this way, “brutal effectiveness is […] to some ex-
tent rebuffed, while the law silently and slightly progresses” (ibid.). Law, however,
should avoid overreacting: “international law must be careful not to give the impres-
-9-
sion that it is a tool to be used to create a hegemony of the strong” (p. 258); after all,
as long as it remains “[c]conscious of its necessity and superiority, [it] can afford to
be lenient with its detractors” (p. 257), without underestimating their force. Although
Law’s supporters cannot reasonably hope to see the “facts fully mastered by the law”,
“tamed and disciplined” (p. 308), and should avoid fantasizing about “politics […]
disappear[ing] beneath the weight of legal constraint” (p. 360), they can take consola-
tion in the thought that the Law may be as slick as its adversary: “Everywhere the law
lurks behind the scenes” (ibid.). But this is not the last coup de métathéâtre, as
“[a]narchy continues to lurk everywhere, in fact, and sometimes also in law” (p. 420).
As anticipated – and in conformity with Kolb’s predilection for natural law
doctrines –Morals enters the drama as a secondary, colourless character. Kolb coldly
observes that “[t]he creation of legal rules influenced by moral considerations is per-
haps more frequent in international society than it is in municipal law” (p. 430). The
reason is, perhaps not unexpectedly, “the state of fluidity of international law”, or its
porosity: “Given its normative gaps and uncertainties, moral […] considerations can
also permeate more easily than in a solid body of codified law; sandstone allows wa-
ter to penetrate more deeply than does granite” (ibid.). There is no struggle between
Law and Morals, however, just “many intense exchanges”, a gentle melting into each
other, and the relaxed atmosphere brought about by a timely divorce: “The two no-
tions were originally twinned, even if each later took its own path in life” (p. 426).
For those who, like the present reviewer, believe that law is an instrument of
power, that it is radically impure (which does not mean loathsome or creepy!), and
that law’s relation to morals is no less troublesome than its relation to politics and
power, will find no more vivid illustration of the opposite view than Kolb’s Theory.

- 10 -