MONIST AND DUALIST THEORY

 MONIST AND DUALIST THEORY

• Introduction

Monism and Dualism are the two principal theories that deal with the relationship between International and Municipal Law. According to the Monism beliefs, international law and municipal law are complementary facets of one system only then whether they are named differently. Whereas according to Dualism, these two are completely discrete and different legal systems on their own. The dualist theory sets international law apart from municipal law as international law involves a large number of state's legal system and often the theory is also referred to as pluralistic theory. Hence, to understand the relationship between International law and Municipal Law, it is important to understand these two laws in a proper manner.

• Monist Theory

International law administers only International level and Municipal law on its local jurisdictional limits. But natural law advocates believe that both municipal and international law form one legal system, and this approach is generally known as Monism. Natural law is the law that prevails with the positive law. As the name suggests, this law is determined by nature and that law is objective and universal. From the very beginning, natural law is used to analyse human beings to understand moral behaviour from nature.

The advocates gave pretty simple arguments from the Monist side. They believed that municipal law and international law are looked at together as a single system. Today's writers favour a monistic approach and endeavours that a majority portion of their opinions is based on the rigorously scientific analysis of Municipal structure in legal systems.

In a country that follows a monist approach, there is no such requirement of translating international law into municipal law. Once the state has given the assent to the treaty, it is incorporated into its municipal law naturally. This act of giving assent to an international treaty immediately incorporates the international principles into the states' municipal law.

International law can be applied by a Municipal court and can be conjured by the citizens, on the condition that the international law is translated into the state's municipal law. A municipal court can also declare a law unconstitutional if it contravenes International principles.

In a monist state, in case a national law contradicts International law then that law becomes null and void, no matter if the law is of constitutional nature or not. The international law is immediately accepted and the part that is contradicting gets translated away when the state ratifies the treaty.

In Kelsen Grundnorm theory, he observed that international law and municipal law are manifestations of a single unit of law. He believed in the supremacy of International law as it is a system of rules of a legal character and is higher than Municipal laws. Kelsen also observed natural law and international law as a one and coherent system and even placed international law at the top of the pyramid in his hypothesis.

• Dualist Theory 

Contrary to monists, dualists focused on the difference between International law and Municipal law and have contended for the adoption of international treaties in the Municipal law of the State. According to dualists, the absence of this adoption by the State will result in the not existence of International law as a law.

The reason behind dualists having this opinion is that they believe that International law and Municipal law are two completely different aspects of law and it is unreasonable to take the two in the same category. Their beliefs saw International law and municipal law as two different and independent systems.

In a dualist state, the drafting of International law in Municipal law if utmost importance so as to give it an effect. Aside from drafting, it is also the duty of the state to edit those laws which contradict the freshly adopted International law.

If a dualist state ratifies a convention or a treaty but does not form a law explicitly incorporating the so treaty, then their acts of non-incorporation will violate the International law. In case the state has not incorporated the principles of a treaty as per the local laws which were ratified earlier in the International sphere then, neither the citizens of that country can conjure the International law nor the courts can give any decision based on the principles of that treaty.

The UK is one of the countries where the dominance of the dualist approach is visible. International law becomes national law in the UK once its translated.

Hersch Lauterpatch and Heinrich Triepel were the supporters of Dualist theory. Judge Lauterpatch was an advocate of natural law and he accepted that International law does observe the precepts of natural law. He believed that International law was much more superior to municipal law. For him, International law is for the states and not governments. 

Triepel also treated the two systems as entirely different in nature. For him, International law and Municipal law existed as two distant sets. He accepted that the basic will of the States was the ground of legitimacy of International law but he also pointed out that it massively relied on the agreements between the states, which included customs along with treaties and the common will was the most essential and inventive source of International law.

• Judicial Discourse on Relationship Between International Law and Municipal Law

State of West Bengal v Kesoram Industries Ltd. & others - 

In the case, the Constitutional Bench of Supreme Court held that in India, the doctrine of Dualism is applicable but not the doctrine of Monism but if the municipal law is not restricting the extent of the statute, then, even if India has not signed the treaty, the Supreme Court can interpret the statute.

Civil Rights Vigilance Committee S.L.R.C. College of Law Bangalore v. Union of India and others -

The High Court of Karnataka while observing the case, gave the definition of the relationship between International law and Municipal law and held that as International law is achieving higher relevancy on the global and municipal scenarios, several novel and unique queries were started to come out regarding the relationship of the two. However, the Hon'ble High Court held that International law and Municipal law are settled on different sources can make different systems of simple incompatible.

• Conclusion 

Monism and Dualism are usually perceived as two conflicting theories of the International law and Municipal law relationship. Monism and Dualism are observed by many scholars as having the restricted explanatory power as theories and fails to cover the working of International law within states.

However, these two still hold the power as analytical tools. They are expected beginning stages for an examination of the connections between International law and Municipal law. Many municipal courts observed that researchers have found Monism and dualism as promising approaches for comprehending Municipal thinking on International law.

 

Written by Parul Sharma