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.
Tuesday, February 7, 2017
Kammerhofer: The Challenges of History in International Investment Law: A View from Legal Theory
Jörg Kammerhofer (Albert-Ludwigs-Universität Freiburg - Law) has posted The Challenges of History in International Investment Law: A View from Legal Theory (in International Investment Law and History, Stephan W Schill, Christian J Tams, & Rainer Hofmann eds., forthcoming). Here's the abstract: