The Challenges of History in International Investment Law: A View from Legal Theory
Stephan W Schill, Christian J Tams, Rainer Hofmann (eds), International Investment Law and History (Cheltenham: Edward Elgar 2017, Forthcoming)
8 Pages Posted: 6 Feb 2017
Date Written: February 5, 2017
This short essay highlights, from a legal theoretical perspective, both the risks and the potential benefits of instrumentalising the history (and historiography) of law in international investment law. Investment law scholars should study their field’s theoretical foundations and historical bases, but all of these fields of study should be kept separate. In other words, we need avoid abusing history and historiography, but we need not avoid instrumental uses of history altogether. This essay first discusses the dangers, using critical legal historians’ ideologisation of investment law as example. It then points to potential usefulness of historical research, in this case of the history of doctrines (Dogmengeschichte). It helps us to see that the historical lineage of customary investment law is in considerable doubt.
Keywords: International Investment Law, Hans Kelsen, International Legal History, Dogmengeschichte, Customary International Law, Pure Theory of Law
Suggested Citation: Suggested Citation