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Notes on Monist and Dualist States
Introduction to Law (LJIL3510)
University of Namibia
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Monist and Dualist
1
Monism
Monists hold that International Law and State Law share a common origin- namely Law.
The scholars and followers of this theory is called Monists.
According to Monism, International Law is directly applicable in the National legal order. There is no need for any Municipal implementing legislation; International Law is immediately applicable within National legal systems unlike Dualism, without any incorporation or transformation.
Monists hold that International Law and State Law share a common origin- namely Law.
According to Monism, International Law is directly applicable in the National legal order. There is no need for any Municipal implementing legislation; International Law is immediately applicable within National legal systems unlike Dualism, without any incorporation or transformation.
Monists hold that International Law and State Law share a common origin- namely Law.
Monism II slightly different and is the latest and widely accepted theory of Monism. Its emphasis on supremacy of International Law in the system. Though both International and Municipal laws are laws and are applicable, Monism II advances the idea that International Law principle are somewhat superior when compared to Municipal Law.
It stresses on the fact that the International rules, takes precedence over National legislation, and automatically repeal any National laws contrary to them. This theory got squashed by the more sophisticated and realistic theory of Triepel (Founder of the Theory of Dualism).
This theory according to Antonio Cassese, looked more like aspiration than a description of reality.
Dualism
Dualism theory was developed by a German scholar Triepel and an Italian scholar Anzilotti.
The important principle of Dualism is that, International Law and Municipal Law are two separate and distinct orders, in their objects and spheres of operation, such that the norms of one would not operate within the realm of the other without a positive act of reception or transformation, as the case may be.
The International Law and Municipal Law are two entirely different things and the International Law can never be applied in the state without incorporating or transforming it into Municipal Law.
In Dualism, at no circumstances, the International Law can prevail over the Municipal Law, and it is the Municipal Law which is always supreme.
Monist and Dualist
2
The subject of the Municipal Law is primarily individuals and groups, and that of International Law is states. The Sources of Municipal laws are parliamentary enactments and courts decision, and for International it is treaties, customs and general principles of Law recognised by the civilized nations. The main function of Municipal Law is regulating internal functioning of the state, relation between the state and the individual, and function of International Law is to supervise the relations between states.
DIFFERENCES BETWEEN MONISM AND DUALISM
In philosophical terms, monism is that talks of oneness of the soul and dualism is that talks of two entities, individual and supreme soul.
When monism speaks of the oneness of existence, the term dualism does not endorse this view.
Monism believes in the fusing of the self into supreme self. On the contrary, the term dualism does not believe that the individual self-unites with the supreme self.
In International Law, monism believes that International and National legal systems can become a unity. Dualism states that there is a difference between internal and International Law.
There is no need for translating the International Law into a National Law in a monist state. Unlike monism, there is a need for the translation of International Law into National Law. Unless the translation takes place, the International Law is not accepted.
Notes on Monist and Dualist States
Course: Introduction to Law (LJIL3510)
University: University of Namibia
