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Jörg Kammerhofer

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.
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Jörg Kammerhofer

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.