Kammerhofer, Jörg --- "The challenges of history in international investment law: A view from legal theory" [2018] ELECD 128; in Schill, W. Stephan; Tams, J. Christian; Hofmann, Rainer (eds), "International Investment Law and History" (Edward Elgar Publishing, 2018) 164

Book Title: International Investment Law and History

Editor(s): Schill, W. Stephan; Tams, J. Christian; Hofmann, Rainer

Publisher: Edward Elgar Publishing

ISBN: 9781786439956

Section: Chapter 6

Section Title: The challenges of history in international investment law: A view from legal theory

Author(s): Kammerhofer, Jörg

Number of pages: 13

Abstract/Description:

This chapter highlights, from a legal theoretical perspective, both the risks and the potential benefits of instrumentalizing the history and historiography of law in international investment law. Investment law scholars should study their field’s theoretical foundations and historical bases, but should take care not to fall into the trap of abusing history and historiography in legal argumentation. The chapter first discusses the dangers of instrumentalizing history, using critical legal historians’ ideologization of investment law as an example. It then points to the potential usefulness of one form of historical research – the histories of legal doctrines (Dogmengeschichte), which helps us to see that the historical lineage of customary investment law is in considerable doubt.