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.
This chapter, which has remained unchanged since 2011, applies the Pure Theory of Law to some of the current problems of international law. It seeks to endow that theory with a new usefulness which Kelsen is not usually accorded by international legal scholarship. Another aim is to dispel the stigma associated with the name ‘Kelsen’ in international legal theory. This will be achieved by re-engaging with the Pure Theory in a constructive, rather than in an apologetic or (purely) critical manner: the theory will be applied a-contextually and a-historically to two particularly important problems. First, how can the Pure Theory of Law as theoretical approach be used to clarify the relationship of the formal sources of international law - how is international law’s ‘constitution’ structured? What is the status and function of norm-conflict resolution techniques? Second, how can it reconstruct the function of Chapter VII of the UN Charter?
This chapter examines the alleged lawmaking function of international legal scholars. While scholars are quite obviously as unable to make law as they are butterflies, legal scholars appear nonetheless to be uniquely influential. We can study the role of scholars in lawmaking using at least two radically different methods: the empirical viewpoint, looking at the factual influence of scholarship, or the normativist viewpoint, examining whether the law empowers ‘scholars’ to make law. The chapter starts by scrutinising Article 38(1)(d) of the ICJ Statute, the standard entrypoint of international legal scholarship, including the restrictions of that approach. Next, the sources of law will be discussed as the conceptual basis for the choice of lawmaking factors by the law, demonstrating the problems when incompatible scholarly methods are admixed. Lastly, a brief account of the sociological view will be given, focusing on and problematising previous attempts to measure scholarship’s influence on lawmaking.