Edited by Stephan W. Schill, Christian J. Tams and Rainer Hofmann
Chapter 6: The challenges of history in international investment law: A view from legal theory
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.
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