Chapter 3 challenges the tradition in comparative legal studies, which treats Germany exclusively as a representative of the Civil Law family. Through excerpts of leading German legal theorists of the twentieth century, the chapter demonstrates that there has always been resistance to the Civil Law orthodoxy in the German legal culture. This includes a survey of the Free Law Movement (Kantorowicz), the Pure Theory of Law (Kelsen), and the Radbruch Formula (Radbruch). The chapter concludes with a discussion of the Federal Constitutional Court’s Lüth Case, in which the Court announced the Basic Law’s “objective order of values.”

This chapter critically reviews dualism, as developed by Heinrich Triepel, and monism, mainly formulated by Hans Kelsen. It argues that these theories can no longer comprehensively explain the relationship between international and EU or EU and national law and that, due to their emergence almost a century ago, these theories must be understood in their historical context. Historically, dualism was progress as the separation of international and national law helped international law become independent. Thus, dualism liberated international law from being understood as “external State law,” and was even referred to as a “cleansing thunderstorm” by the monist Alfred Verdross. The main characteristic of monism is the assumption of a single unified legal system. Kelsenian monism must face the criticism of having a highly fictitious understanding of the world: nothing less than the “unity of the legal world order” is proclaimed. To depict the most important assumptions of Kelsenian monism, this chapter looks into the Kelsenian adherence to neo-Kantian epistemology, and shows that this understanding refers to a very specific philosophical position, which has been rightly criticized by many philosophers.

Can a doctrinal scholarship which is based on the normativist-positivist framework espoused in this book do any better than mainstream legal scholarship? Starting from a critique of certain hyper-systematising approaches, the chapter introduces Kelsen’s idea of legal scholarship properly so called, one devoid of external influences because these make it impossible to correctly cognise the law. Reconstructed in this manner, doctrinal scholarship can provide a structural analysis of the law, both on the macro-level of system-coherence and on the micro-level as frame-determination. It can also give practical information on how awards have exercised their freedom within the frame of possible meanings.

Is arbitral investment case-law on expropriation precedential in a legally relevant sense? Orthodox approaches are marked by agreement on a narrow set of arguments, namely that international law is not a common law and arbitral awards do not have stare decisis power, that jurisprudence is hugely important and tribunals rely on it, and that there must therefore be a sort of de facto system of precedents in operation. In effect, ‘factual importance’ is fashioned into a source of legal authority. However, few arguments are given as to why this transfer from fact to law would occur and they do not provide a foundation for a general legal value for precedents. Yet the weight of arbitral jurisprudence is both too great to ignore and too helpful in discovering what ‘’ means in a pragmatic sense. Precedents are statements about general norms; outside the common law, judge-made law is merely an interpretation of a general norm in a judgment. Not even a constant tradition of decisions can turn such a statement into a norm.

Have International Investment Agreements (IIAs) generated or changed customary law? (1) Scholarship’s optimistic approach to the status of customary international law fails to distinguish the elements of custom-creation from their proofs. (2) IIAs are not instances of expropriation or non-expropriation, hence they cannot serve as state practice. Verbal acts are not practice of the content of that verbal act. (3) IIAs are not opinio iuris because it is unlikely that treaty parties express preferences regarding customary law by concluding a treaty. (4) If treaties are an opt-out from general international law, then IIAs are likely concluded to counter perceptions of custom and a fortiori not custom-building. Therefore, a customary international law on expropriation is unlikely to be shaped significantly by IIAs and even if they did shape it, the resulting norm would be highly unspecific.

This chapter introduces the book and situates it in current debates on both expropriation in international investment law and (international) legal theory.

Hans Kelsen’s interventions in the law of the Nuremberg trials have remained unexplored with the exception of notes in passim or a couple of brief studies. International criminal law, is true, was not Kelsen’s main object of study. However, the events culminating in Nuremberg, both the shocking Nazi policies and that Kelsen was an émigré in the United States were instrumental to precipitate his close engagement with international criminal law during the dawn years between 1942 and 1945. This chapter introduces the man and his ideas, traces elements of the pure theory that relate to the principle of individual criminal responsibility and, with the help of hitherto unknown archival material, describes for the first time Kelsen’s personal participation in the preparations of Nuremberg and the history behind his absence from the International Military Tribunal. The chapter concludes with a selection of two aspects of Kelsen’s activities as a legal advisor for the US War Crimes Commission: first, his insistence on the need for an international treaty as the legal basis of the IMT in order to avoid victors’ justice and problems of jurisdiction; second, his contribution towards the inclusion of individual criminal responsibility in the London Agreement.