2018LLB003 - Sem 5 - P.I.L - Research Paper - Monism Vis-S-Vis Dualism

PUBLIC INTERNATIONAL LAW
DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY
SABBAVARAM, VISAKHAPATNAM,
A.P., INDIA
PROJECT TITLE:
MONISM VIS-À-VIS DUALISM
SUBJECT:
NAME OF THE FACULTY:
Prof. ARUNA KAMMILA
NAME OF THE CANDIDATE:
AISHWARYA.V.V.BUDDHARAJU
ROLL NUMBER:
2018LLB003
SEMESTER:
5th SEMESTER
MONISM VIS-À-VIS DUALISM Page 1

ACKNOWLEDGMENT:
I am highly indebted to my Hon’ble Public International Law Professor, Mrs. Aruna

a a a a a a a a a a a a
a Kammila, for giving me a wonderful opportunity to work on the topic: “Monism vis-à-vis
a a a a a a a a a a a a a
a Dualism”, and it is because of her excellent knowledge, experience and guidance, this project
a is made with great interest and effort. I would also like to thank my seniors who have guided
a a a a a a a a a a a a a a a a a
a my novice knowledge of doing research on such significant topic. I would also take this as an
a a a a a a a a a a a a a a a a
a opportunity to thank my parents for their support at all times. I express my sincere gratitude to
a each and every person who have guided and suggested me while conducting my research
a work.

TABLE OF CONTENTS
1. SYNOPSIS……………………………………………………………………4.
2. ORIGINS OF THE THEORIES:……………………………………………7
3. KELSEN ON MONISM……………………………………………………..8
4. MONISM VIS-À-VIS DUALISM…………………………………………..9
5. DUALISM VERSUS MONISM: THE MIND-BODY PROBLEM………12
6. COMMON CAUSES FOR THE COMPARTMENTALIZATION
OF MAN……………………………………………………………………...14
7. JUDICIAL INCORPORATION OF INTERNATIONAL LAW…………16
8. SUGGESTIONS AND CONCLUSION…………………………………….20
9. BIBLIOGRAPHY AND WEBLIOGRAPHY………………………………21

SYNOPSIS:
INTRODUCTION:
Monism and dualism were originally conceived as two opposing theorizations of the
a a a a a a a a a a a
a relationship between international law and domestic law. The subject of considerable debate
a in the first half of the 20th century, monism and dualism are regarded by many modern
a a a a a a a a a a a a a a a
a scholars as having limited explanatory power as theories because of their failure to capture
a how international law works within states in practice. Notwithstanding their decline as
a theories, monism and dualism retain power as analytical tools. They act as consistent starting
a points for examinations of the relationship between international and domestic law. For
a example, scholarship on the role of international law in domestic or European Union (EU)
a law, and on the ways that domestic courts incorporate international human rights law,
a continues to use monism and dualism as touchstones for analysis. A number of recent
a decisions in domestic courts have seen some scholars revive monism and dualism as potential
a ways to understand domestic judicial reasoning on international law.

a a a a a a a a a
Monism and dualism also provide a shorthand way of signaling attitudes of individuals and
a institutions within domestic legal systems toward international law. In its most
a a a a a a a a a a
a straightforward form, monism holds that international law and domestic law form part of a a a a a a a a a a a a a a
a single universal legal system. Monism’s most famous proponent, Hans Kelsen, considered
a a a a a a a a a a
a that there was a hierarchical relationship within the monist legal system, under which
a international law was superior to domestic law and thus prevailed in any conflict between the
a a a a a a a a a a a a a a
a two laws. A dualist system treats the international and domestic systems of law as separate
a and independent.
a a
Or a state may allow for the direct incorporation of customary international law, but require
a international treaties to be transformed into domestic legislation before they can have direct
a effect within a state. The scholarship on monism and dualism can broadly be divided into two
a kinds: theoretical expositions on the concepts themselves and analyses that take monism and
a dualism as the departure point for critique, often combined with an exposition on the practice
a of international law within states. Almost all of the scholarship included in this bibliography
a falls within one of those two types.

a a a a a a
It is conventional practice for international law textbooks and casebooks to include a chapter
a on the relationship between international and domestic law. Such chapters generally describe

a monism and dualism, position them as the traditional theoretical ways of understanding the
a relationship between international and domestic law, and then critique the concepts as
a unhelpful. Many chapters then propose other ways of conceiving the relationship between
a international and domestic law, often grounded in an account of the practice of states.
OBJECTIVE OF THE STUDY:
The researcher in the below project is analysing the concepts of monism and dualism with
regard to each other by taking into consideration various case laws. Both the national and
international perspectives are taken into consideration believing that there is hierarchical
relationship in the monist legal system where the international law is considered to be
superior to domestic law of the land and thus it prevailed during the conflict.
SCOPE OF THE STUDY:
The researcher is limiting the scope of the study to geographical limits of the Indian sub-
continent. Case laws from India alone are taken into consideration to narrow down the
analysis of the topic.
RESEARCH QUESTIONS:
1. Whether it could be said that there are matters which are essentially within the
a domestic jurisdiction of any state? a a a a
2. Whether disjuncture between the theory and practice of India’s engagement with
a a a a a a a a a a
a international law might be welcomed by some as indicating a much-needed openness

a to a progressive body of norms?

a a a a a
HYPOTHESIS:
• The validity of international law in a dualist domestic system is determined by a rule

a of domestic law authorizing the application of that international norm. Because of the
a variety of ways in which domestic systems incorporate international law, some

a a a a a a a a a a
a scholars have preferred the term “pluralism” to “dualism.”

a a a a a a a a
• There are multiple forms of both monism and dualism. Indeed, one of the main
a critiques of both theories is that no state’s system is strictly monist or dualist. Instead,
a international law may be treated in a variety of ways by the different institutions of a

a state. For example, courts may use international law in ways that a parliament does
a not.

CHAPTERISATION:
1. INTRODUCTION
2. ORIGINS OF THESE THEORIES
3. MONALISM AND DUALISM: THE HEAD BODY PROBLEM
4. COMMON CAUSES FOR THE COMPARTMENTALIZATION OF MAN
5. JUDICIAL INCORPORATION OF INTERNATIONAL LAW
6. CASE LAWS
7. SUGGESTIONS
8. CONCLUSION
9. BIBLIOGRAPHY

ORIGINS OF THE THEORIES:
There is a curious tendency in English books on jurisprudence to treat the history of the theory
a of sovereignty as a form of introduction to the Austinian doctrines. This is to lose sight,

a however, of the fact that the history of sovereignty has had less to do with state supremacy
a than with the relationship of state law to another normative order whether natural law or
a international law. It is interesting to note that the early Catholic writers adopted a conception
a of state sovereignty which they were careful to reconcile with a monistic construction of law
a in general. For them, sovereignty represented a, delegation from a superior legal order, a
a competence rather than an omnipotence. Thus, it was Suarez who wrote: "In universo humano
a genere potuerunt iura gentium moribus introduci."

a a a a a a
Even with Bodin, in 1576, we find expressed that notion of a higher legal order from which
a state sovereignty is derived."Sed legibus divinis aut naturalibus principes omnes ac populi
a aeque obligantur.... Quod igitur summum in Republica imperium legibus solutum diximus,
a a a a a a a a a a
a nihil ad divinas aut naturales leges pertinet."

a a a a a a a
Equally for the jurists of the natural law school, sovereignty represented no more than a
a competence given by international law, identified as part of the wider "ius naturae ". In the
a middle of the eighteenth century, however, legal theory underwent a profound modification
a which may be attributed to the influence of Vattel and Hegel. The conception adopted by
a these two men of the position of the state in the international community reflected their
a political convictions rather than any objective scientific standpoint, and the result was that
a when their doctrines spread, nothing did more to discourage the proper development of a
a scientific theory of international law. a a a a a
Thus, in 1758, Vattel wrote: "Every sovereign state is free to determine for itself the
a obligations imposed upon it." Some time later Hegel had carried the position farther by
a interpreting the state as a metaphysical reality with value and significance of its own, and by
a endowing it with the will to choose whether it should or should not respect law. These
a teachings left lasting effects on the theory of international law. Even to-day, dualistic doctrine
a is deeply rooted in the Hegelian notion of the state-will, a notion whose persistence well
a illustrates the tenacity of unproved and irrational dogma. Jellinek, who championed the
a theory of auto-limitation,1 and Zorn, who treated international law as external state law
1
a Jellinek, Allgemeine Staatslehre (1900).
a a a

a (dusseres Staatsrecht),2 both to some extent shared the spiritual inspiration of Hegel. Traces
a of that influence survived among those who held fast to the view that the initial hypothesis,
a the Ursprungsnorm, at the basis of international law, is pacta sunt servanda.3 In England, too,
a there was a noticeable transition from the Blackstonian theory of the binding effect on
a Parliament of the Law of Nations, to the nineteenth-century doctrine of Parliament's

a unlimited sovereignty. a
a Yet the logical structure of the Austinian theory was vitiated by its reliance on a political
a interpretation of the state, for the Hegelian thesis, whether transformed into the doctrine of
a absolute sovereignty or the doctrine of auto-limitation, always appeared to lack a juridical

a foundation. State sovereignty reached its doctrinal plenitude in the nineteenth century, and
a began to decline when jurisprudence came under the influence of scientific positivism and
a empiricism. The penetrating analyses of Kelsen and Duguit upset many timeworn notions,
a and the idea of sovereignty as omnipotence was one of the first to succumb. The Austrian
a school resolutely adopted monism as their creed, and their thesis was taken up by other
a thinkers in international law. The position to-day is that monism has obtained the widest
a theoretical acceptance, and the issue appears to lie between state monism and international
a monism. On this question, contemporary jurists are about equally divided.

a a a a a a a a a
KELSEN ON MONISM:
The leading adherent of monism is Kelsen. For him, jurisprudence is a science, and the object
a of a science is formed by cognition and its unity. Unity of cognition connotes unity of object,
a and this unity must be found in the relation between municipal law and international law.
a Dualism is inconsistent with the axiomatic unity of a science. Any construction other than
a monism is bound to constitute a denial of the legal character of international law. There is no
a half-way house between monism and the theory that international law is not law. Two
a normative systems with binding force in the same field must form part of the same order. Nor
a is it a valid objection that law and morals are examples of two normative systems applying in
a the same field yet nevertheless different. The science of law deals only with binding norms. It
a aims at unity of normative knowledge which can only be expressed by the unity of a system
2
a Zorn, Grundziige des V61kerrechts.
a a a
3
a Anzilotti and Verdross both support this view, though Anzilotti upholds dualism and Verdross monism.

a of norms. Having reached that conclusion, Kelsen turns to a structural analysis of the relation
a between state law and international law. a a a a a a
It is here that his doctrine of "a hierarchy of norms" becomes of importance. For Kelsen the
a legal fabric is built up in a different way from the natural sciences; legal norms are only
a explicable by other norms from which they derive their existence and their binding force;
a thus, the norm laid down in regulations is determined by the norm in a statute, and it in its
a a a a a a a a a a a a a a a a a a
a turn by a norm in the constitution, and so on. Law "has the peculiarity of governing its own
a creation; a rule of law determines lxow another rule will be laid down; in this sense the latter
a depends on the former; it is this bond of dependence which links together the different
a elements of the legal order, which constitutes its principle of unity. The validity of a legal
a norm is based precisely on the norm which creates it; a norm is valid only if it conforms to the
a a a a a a a a a a a a a a a a a a a
a norm of superior force."' a a a
From norm to norm, legal analysis eventually reaches one supreme fundamental norm which
a is the source and foundation of all law. This fundamental norm is a necessary scientific
a hypothesis, a postulate of the science of law. Farther than that hypothesis the jurist cannot
a venture, as the ultimate origins' of law are determined by metajuridical considerations. The
a question now arises, what hypothesis will best express the relation between the positive
a norms of state law and the positive norms of international law as pertaining to one unitary
a system of law. Is that hypothesis to be found in the state order, or is it to be found in the
a a a a a a a a a a a a a a a a a a a a
a international order? a
MONISM VIS-À-VIS DUALISM:
The notion that international and domestic laws operate in distinct spheres separated from
a each other through clear normative and physical borders, is no longer the prevailing paradigm
a for either describing or theorizing the relationship between the two bodies of law. No longer
a is international law thought of as a set of rules governing the relations among states. Rather,
a international law increasingly denotes a normative framework that is both constitutive and a a a a a a a a a a a
a reflective of the relationship not only between states inter se, but also between states, their
a citizens, other individuals, and non-state entities—matters once thought to be purely within
a the domestic/municipal sphere.4 The roots of these changes in the forms, function, institutions
a and content of international law lie in the recognition that many concerns facing the entire
4
aA. M. Slaughter & W Burke-White, The Future of International Law is Domestic (or, the European Way of
a Law), 47 Harvard Intl LJ (2006) 327.

a a a a a a

a world, from environmental law, to criminal enterprise, to peace and security, have their basis
a in discrete domestic policies. The earlier conception of international law, limited to the
a regulation of inter-state relationships, was not adequate to cope with these concerns.5 Norm-
setting at the international level has resulted in the increasing transfer of decision-making
a authority to transnational fora and processes.6 a a a a a a
The substantive rules of international law are so widereaching and pervasive that it is no
a longer possible to say that there are ‘matters which are essentially within the domestic
a jurisdiction of any state.’7 International law norms are increasingly designed to be applied
a within national orders, giving rise to the need for national enforcement.8 The changing scope
a of international law has fuelled the need for moving beyond the doctrinal devices of monism
a and dualism in delineating the interaction between, and relative authority of international and
a domestic laws. a a
Historically, the doctrines of monism and dualism conceptualized two distinct modes of
a interaction between international and domestic law in domestic courts.9 Monism conceives of
a the international and domestic legal orders as normatively interconnected, and views
a a a a a a a a a a
a international and domestic law as part of the same legal order. According to monist a a a a a a a a a a a a a
a approaches, international law ought to be automatically incorporated into the domestic legal
a order, without the requirement of any additional act of adoption or transformation by the
a state. On incorporation, international law is slotted into the hierarchy of legal sources
a applicable within the domestic legal order and is applied as part of the governing normative
a framework within that jurisdiction, including by the judiciary. Monism rationalizes the
a a a a a a a a a a
a interconnectedness of the international and domestic legal spheres on the understanding that it a a a a a a a a a a a a
a is international law that provides the recognition necessary for the authority of municipal law
a to operate over a given subject or territory.10

a a a a a a a a
5
Secretary-General’s High-Level Panel on Threats, Challenges and Change, A More Secure World: Our Shared
aResponsibility, U.N. Doc. A/59/565 (2 Dec 2004) 2. a a a a a a a
6
Mattias Kumm, The Legitimacy of International Law: A Constitutional Framework of Analysis, 15 European J
aIntl L (2004) 907, 913.

a a a a
7
United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI, article 2(7); Kumm, ibid
8
Philip Allott, The Emerging Universal Legal System, in Nijman & Nollkaemper (eds.), New Perspectives on
athe Divide Between National and International Law (OUP, New York, 2007) 80.
9
Ian Brownlie, Principles of International Law, 5th edn (Clarendon Press, Oxford, 1998) 31–33; Curtis A.
aBradley, Breard, Our Dualist Constitution, and the Internationalist Conception, 51(3) Stanford L Rev (1999)
a529, 530; John Jackson, Status of Treaties in Domestic Legal Systems: A Policy Analysis, 86 American J Intl L
a(1992) 310, 311. a a
10
Hans Kelsen, Sovereignty, reprinted in Malcolm Evens and Patrick Capps (ed.), International Law, Vol 1,

Dualism, on the other hand, is based on the understanding that international and domestic
a laws operate in distinct and compartmentalized spheres and that international law is not
a automatically incorporated into the domestic legal order.11 Since international and domestic
a a a a a a a a a a
a laws operate in distinct spheres, the only mechanism for the transformation of international
a law into domestic law is through the medium of regular domestic law-making processes.
a Dualism therefore does not hold that international law does not have any role to play in the
a domestic order, but that whatever this role might be, it has to be directly sanctioned by
a domestic legal processes.12 a a a
Monism and dualism are artifacts of specific political debates that took place in the Europe in
a the late nineteenth- early twentieth century regarding the nature and function of law and the
a limits, if any, on state power.13 In recent literature, attempts have been made to re-purpose
a these doctrines to address contemporary concerns. Monist values are rationalized within
a a a a a a a a a a
a contemporary discourses as promoting/reflecting a cosmopolitan culture and the a a a a a a a a
a universalization of value, as well as serving the imperatives of global governance. Dualism on a a a a a a a a a a a a a
a the other hand has been reinforced in recent writings as a valuable device for
a preserving/promoting international legal pluralism; as protecting the distinct and self- a a a a a a a a a
expressive nature of domestic law;15 and as indispensible for the proper functioning of
a domestic democratic processes for the creation of coercive legal norms, instead of rule by ‘a
a new political elite of international lawyers.’

a a a a a
At the same time, concerns about the (lack of) participatory and (un) democratic nature of the
a processes of international law-making and concerns regarding their substantive content are
a a a a a a a a a a
a often posited as supports for dualist positions.14 As doctrines, monism and dualism are
a formalistic, formulaic constructs that do not reflect the reality of the multitudinous ways in
a which global legal interactions take place, especially in light of the increasing interpenetration
a of the international and domestic legal orders. Further, casting this interaction in such
a either/or, oppositional categories of monism or dualism not only hides a wide variety of
a complexity in the implementation of the doctrines, but also serves to overstate the differences
11
Ibid.
a
12
e Ian Brownlie, supra note 6, at 33; Louis Henkin, The Constitution and United States Sovereignty: A
aCentury of Chinese Exclusion and Its Progeny, 100 Harvard L Rev (1987) 853, 864.
13
Harold Koh, Why do Nations Obey International Law, 106 Yale LJ (1997) 2599, 2604–2608; Janne Nijman &
aAndre Nollkaemper, Introduction, in Nijman & Nollkaemper (eds.), New Perspectives on the Divide Between
aNational and International Law (OUP, New York, 2007) 6–10.

a a a a a a a a
14
David Mednicoff, The Importance of Being Quasi-Democratic—The Domestication of International Human
aRights in American and Arab Politics, 38 Victoria Univ Wellington L Rev (2007) 317, 317–318. S

a between them. For example, monist countries also require legislative sanction when dealing
a with international law. Monists require legislative approval for the very assumption of
a international obligations, but once assumed, these obligations have direct effect.15 Some
a a a a a a a a a a
a monist countries like Netherlands and Russia even have publication requirements before a
a treaty can be enforced domestically. Dualists may or may not require legislative approval for
a the assumption of international obligations, but do need legislative approval for these
a obligations to have domestic effect. Therefore both monist and dualist legal systems have
a requirements for subjecting international law to domestic majoritarian checks.

a a a a a a a a a
This seems to indicate that monism and dualism are more properly characterized as domestic
a allocation of powers doctrines that determine which branch of the state can give consent to
a the assumption, and application of treaty law.16 Despite the concerns with the doctrines of
a monism and dualism, I do not argue that these formal categories are not important. They are
a important precisely because they are given importance, by decision makers, judges and other
a state authorities. India, for example, allocates powers in relation to international law along the
a dualist paradigm. a a
However, as I argue below, in practice Parliament has limited control over the domestication
a of international norms, such that the Executive often assumes and internalizes international
a law obligations without any, or very restricted and ex-post, Parliamentary oversight.
a a a a a a a a a a
a Therefore, the specific distribution of powers between the Executive and the Legislature, as
a envisaged within dualist theories, is belied in Indian practice. This is compounded by judicial
a dicta that allows courts to internalize international law norms without their prior
a domestication by the legislature. a a a
DUALISM VERSUS MONISM: THE MIND-BODY PROBLEM
The dualistic view sees man as composed of mind and body-the mental and the physical (in
ancient anthropological terms, "soul and body" or "spirit and body"). This "ghost-in-the-
machine" model has a long history, dating from Plato and other early Greek philosophers. In
modern times, the outstanding success of the field of medicine in conquering disease has
reinforced a kind of "mind-plus-plumbing'? conception of man. Although the mind and the
plumbing are thought to interact, there seems to be an implicit belief that man is composed of
15
aAntonio Cassese, International Law, 2nd edn (OUP, 2005) 236.
a a a a a a a a
16
aSee, eg, Cassese, supra note 21, at 223–224; Attorney General for Canada v Attorney General for Ontario,
a [1937] AC 326 (Privy Council); See also R v Jones (Margaret), [2006] UKHL 16 (UK).

psyche and soma, as the term "psychosomatic medicine7' suggests. In its strongest form,
dualism suggests that man is mind and body. In a somewhat weaker, but more subtle form, it
implies that mental events are correlated with physical events, or that the mind influences the
body. But to speak of correlation is to imply that there are two factors or two entities
involved, for one cannot correlate something with itself. It is precisely this kind of
interactional or correlational dualism which is probably adhered to by many Christians who
reject the more direct and overt theory of mind-body dualism.
The monistic model rejects any splitting of man into parts and views him as a unified
organism of great complexity and varied functioning. This view rejects the notion that he is
composed of a mind and a body which interact (a weak form of dualism), but rather
emphasizes man's absolutely basic unity. To use an analogy from modern physics, we know
that a flash of lightning is an electrical discharge. There are not two things, the flash and the
discharge. There is just one thing; the flash is the electrical discharge. These are but two
different ways of characterizing the same event. Similarly, according to the monistic theory,
there do not exist mental events which are correlated with physiological events; rather, a
"mental" event is also a "physiological" event.
The terminology simply represents two ways of characterizing the selfsame event. The
monistic view of man as a complex but unified person reflects Aristotle's revolt against
Plato's dualism. More importantly, however, antedating these Greek philosophers, the ancient
Sumerians and Egyptians had a unitary view of man. To the Egyptians, immortality was
unthinkable without a body. Similarly, OT Hebrew thought was not dualistic in any Platonic
sense.'
Interestingly, although some Christians today have a clearlyarticulated monistic philosophy

for discussing the state of the dead, when they begin to consider man as a living functioning
organism they often lapse into a kind of dualism where man is seen to be composed of mind
and body. In this essay, I first survey some of the common causes for "compartmentalization
of man," indicating that the philosophical bases for dualism are questionable. Then I cite
modern research, which raises further doubts about the validity of a "mind-body" split. And
finally, I call attention to the fact that the model of man presented in the NT is monistic, and
endeavor to set forth some theological implications of a monistic philosophy in contrast to a
dualistic one.

COMMON CAUSES FOR THE COMPARTMENTALIZATION OF MAN
The basic unity of man, which is the major premise of the monistic model, is often
overlooked simply because of the fact that man is a complex being, possible to view from
various perspectives. Further, the common every-day ways of talking about man-with
references to both his subjective feelings and his observable behavior-tend to imply some sort
of basic division. Additionally, various theological and philosophical writers describe man by
using terminology such as "body and mind," or "body and soul," or even "body, mind, and
soul." In advocating the monistic model, I am suggesting that all of these various divisions,
compartments, and fractions are apparent, not real, and that there are no compelling grounds
for believing in any substantive divisions within man.
Let us now look more closely at some of the reasons which lead us to compartmentalize,
fractionize, and divide man. First of all, the complexity of man allows for many descriptions-
each unique, incomplete, and not reducible to the terms of another system. If one were
making a speech, for example, a biochemist could write chemical equations describing
changes taking place in the muscles controlling the vocal cords, a neurologist with the aid of
an electroencephalograph could record electrical activity at the cortex, a speech analyst could
observe variations in the speaking, and a journalist could comment on the literary quality of
the production. Each specialist would have his own unique view and his own particular 'bag
of tools," but all would be describing the same unified person. It is only our study of man that
is broken down into separate fields; man himself functions as a unified whole.
Unfortunately, some scholars have succumbed to the "nothingbutism" syndrome, fervently

a a a a a a a a a
a proclaiming that their particular logical system and vocabulary is the only relevant way to
a analyze man. Thus, man has variously been proclaimed to be nothing but a product of
a conditioning2 nothing but a vast and complex series of chemical reactions, nothing but a
a naked ape. Humanists and theologians have reacted by saying that man is more than
a chemicals, more than a product of conditioning, more than an animal. When confronted with
a how he is more than chemicals, etc., they have presented physical scientists with an entirely
a different language and system of logic, and very little real communication has occurred.
The solution to this communication barrier seems to reside in understanding that physical
a scientists and theologians have differing but complementary systems. An introspective

a a a a a a a a a
a mentalistic, spiritual, or ethical description of a human activity does not rival, but rather
a enhances, a description in physical terms. It is an illustration of the complexity of man that he


a can be simultaneously described as a rational being, a moral agent, and a living biological
a organism. These apparently opposing descriptions are a result of how we choose to analyze
a man, but they in no way reflect any substantive divisions. Confusion results when the
a vocabulary of the theologian, for example, is mixed with that of the physical scientist.
Another factor which contributes to a compartmentalized view of man is the fact that he is
a both a doer and an observer. He experiences in a personal, subjective way what others
a observe in him from a distance. This has resulted in the development of two languages-the
a experiential language of the doer and the descriptive language of the observer. Writers,
a philosophers, and theologians often focus on man's subjective experiences, speaking of

a a a a a a a a a a
a thoughts, will power, motives, decisions, etc. They use metaphors, analogies, and mentalistic
a constructs. The term "mind," for example, is a broad metaphor, subsuming a large number of
a mentalistic constructs. In contrast, physical scientists, psychologists, and others interested in

a a a a a a a a a a
a an objective description of observable behavior have eschewed terms like "mind"; they use,
a instead, such terms as "brain," "central nervous system," and the like, to describe the
a organism and its interactions with the environment.

a a a a a a
It is confusing to mix the logic and vocabularies of the subjective and objective frames of
a reference. The language of introspective reports is different from the language of material
a processes, and follows a different logic. "Mind is a word which belongs to a different logical
a vocabulary than "brain." There is no problem in using the metaphorical language involving
a terms such as "mind," as long as we recognize that we are using abstractions. Often, however,
a we attribute concreteness and reality to these mentalistic constructs, treating them as if they
a exist in a material sense. We should either talk about the brain, nervous system, etc., and how
a these relate to other aspects of the organism, or we should use the internal metaphorical
a language of mind, thoughts, decisions, and the like; but to mix the language of these two
a systems produces confusion. Regardless of which system we are using, it should be clear that
a we are talking about a single unified organism. Because of these dual language systems, it is
a easy to subscribe to the dualistic view of man, but such a division is simply a peculiarity
a deriving from our language usage, and does not reflect any substantive division.
In summary, then, although man is complex and although we tend to view him from a number
a of perspectives, the "divisions" merely represent ways of talking about man, and the
a fractionization is only apparent, not real. Further, our use of subjective and objective
a language systems seems to imply that man is a dualistic creature with an inner life and an

a external body; but again, such a split is simply an illusion created by our usage of language.
a In reality, man is a unified whole.17

a a a a a a
JUDICIAL INCORPORATION OF INTERNATIONAL LAW:
The formal doctrinal picture that thus emerges from the Court’s jurisprudence is that while the
a Executive has plenary treaty making powers (at least unless Parliament decides to legislate on
a the issue), it cannot implement international legal obligations domestically to the extent that
a they involve any deviation from existing law, except with parliamentary approval. But what
a of the judiciary? A corollary to the principle of dualism is the ‘‘doctrine of transformation’’

a which provides that municipal courts cannot enforce international obligations domestically
a a a a a a a a a
a unless accompanied by suitable legislative transformation.18 However, in defining the

a a a a a a a a a
a judiciary’s own powers to engage with international law, the Supreme Court of India has
a shifted over the years from this dualist position of transformation towards the monist doctrine
a of incorporation.
a A
The doctrine of incorporation allows courts to directly enforce international law without any
a legislative transformation, unless faced with a contrary domestic norm of higher value.19
a Though the Court has not (yet) considered international law norms as binding on all actors in
a the same sense as domestic laws and has not (yet) held that international law can give rise to
a an independent cause of action, when the Court is called upon to adjudicate matters it
a frequently and robustly applies international law to the issue under review, and provides it
a such strong and substantive respect regardless of legislative transformation, that its approach
a is closer to monist doctrines than dualist ones.

a a a a a a a
This approach of the Court was noticeable as early as 1984, in Gramophone Company of India
a Ltd. v Birendra Bahadur Pandey,20 where the Court explicitly moved away from the doctrine
a of transformation to the doctrine of incorporation. In this case, the Court had to interpret a
a provision on the Indian Copyright Act. In deciding to interpret the provision in a manner
a consistent with India’s international obligations, the Court held that, Rules of International
17
a Joanna Harrington, Scrutiny and Approval: The Role for Westminster Style Parliaments in TreatyMaking, 55
a Intl & Comparative L Quarterly (2006) 121.

a a a a a a
18
See, eg, Maganbhai Ishwarbhai Patel v Union of India, (1970) 3 SCC 400.
19
See, eg, State of Gujarat v Vora Fiddali Badruddin Mithibarwala, AIR 1964 SC 1043; Maganbhai Ishwarbhai
aPatel v Union of India, (1970) 3 SCC 400; P. B. Samant v Union of India, AIR 1994 Bom 323; Union of India v
a a a a a a a a a a a a a a a a a a a a a a a
aAzadi Bachao Andolan, (2004) 10 SCC 1.

a a a a a a
20
1 (1984) 2 SCC 534
a a a a a

a law may be accommodated in the Municipal Law even without express legislative sanction
a provided they do not run into conflict with Acts of Parliament….The doctrine of
a incorporation also recognises the position that the rules of international law are incorporated
a into national law and considered to be part of the national law, unless they are in conflict with
a an Act of Parliament.
a a a a
The Court’s approach in Gramophone Company fundamentally curtails the role of the
21
a legislature in internalizing international law. a a a a a Parliament is no longer required to authorize a a a a a a
a the internalization and domestic implementation of international law. International law moves
a a a a a a a a a a
a from being inapplicable unless legislatively internalized to being applicable unless

a a a a a a a a a
a legislatively resisted. Per this approach, Parliament’s role shifts from that of permitting the
a internalization of international law to that of prohibiting it. Note that in Gramaphone a a a a a a a a a a a a
a Company, the Court made no mention of the allocation of treaty making power between the
a Executive and the Legislature or the presumption of legislative internalization of international

a law on which such allocation was based. The Court also did not make any distinction between
a self- and non-self executing treaties.

a a a a a
Its blanket statement applied with respect to all international law. Gramophone Company
a situated international law as a source of law within the domestic legal order. Since an express
a statutory provision to the contrary could override the international law, international law was
a pegged below statutes in the hierarchy of norms. In Gramophone Company, the Court was
a dealing with treaty-based international law. The principle articulated in that case was
a extended to customary international law in 1996 in Vellore Citizens Welfare Forum v Union
a of India.22 Continuing with the theme of direct incorporation of international law, the Court
a held that once ‘principles are accepted as part of the Customary International Law there
a would be no difficulty in accepting them as part of the domestic law. It is almost accepted
a proposition of law that the rules of Customary International Law which are not contrary to the
a municipal law shall be deemed to have been incorporated in the domestic law and shall be
a followed by the Courts of Law.23 Using this rationale, the Court internalized into domestic
a law various principles of international environmental law, which, the Court stated, were part
a of customary international law.24 Even though in Gramophone Company the Court mandated
21
Ibid.
a
22
Vellore Citizens Welfare Forum v Union of India (1996) 5 SCC 647.
23
Ibid. See also, People’s Union for Civil Liberties v Union of India, (1997) 1 SCC 301.
24
Scholars have argued that the principles that the Court adopted, including their specific instantiation, were
anot yet part of customary international law. See, eg, Anderson, supra note

a incorporation of international law without the need for prior legislative intervention, it was
a still dependent on the Executive first to enter into such obligations.

In 1992 however, the Court removed this constraint upon its usage of international law. It held
a that India’s non-ratification of a series of treaties relating to maritime law did not bar their
a application by the Court, since these treaties embodied the unification of maritime rules
a common to national legal systems, and as such, could be seen as part of an international
a common law and thus open to incorporation by Indian Courts.25 In this case, for the first time
a the Court rationalized the application of treaties that had not been ratified by the country, and
a moved towards their judicial incorporation.26 Along the same lines, in 1993 the Court referred
a to Article 9 (5), ICCPR as a basis for its decision to award compensation in a case of violation
a of fundamental rights, thus ignoring India’s specific reservation to that clause.27 In 2004, the
a Supreme Court expressly recognized this practice of bypassing Executive assumption of

a a a a a a a a a a
a international obligations, by stating that ‘even if India is not a signatory to the relevant
a International Treaty or Covenant, the Supreme Court in a large number of cases interpreted
a the statutes keeping in view the same.28

a a a a a a a
While Gramophone Company had still left open the scope for Parliament to reject
a international law through statute, by the mid1990s, the Court had started viewing a a a a a a a a a a a
a international law as having constitutional status. For example, in People’s Union for Civil
a Liberties v. Union of India, the Court held that ‘the provisions of the covenant [ICCPR],
a which elucidate and go to effectuate the fundamental rights guaranteed by our Constitution,
a can certainly be relied upon by courts as facets of those fundamental rights and hence,
a enforceable as such.29 a a a
Similarly, in Vishaka v State of Rajasthan, a a a a a a a

30
a the Court stated that ‘[a]ny International
a a a a a
a Convention not inconsistent with the fundamental rights and in harmony with its spirit must
a be read into these provisions to enlarge the meaning and content thereof, to promote the
a object of the constitutional guarantee….The international conventions and norms are to be

25
M.V. Elisabeth v Harwan Investment and Trading Pvt. Ltd, AIR 1993 SC 1014.
26
Since then this decision has been cited with approval in MV Al Quamar v Tsavliris Salvage (International)
aLtd, (2000) 8 SCC 278; Liverpool and London S.P. and I Association v M.V. Sea Success, (2004) 9 SCC 512.
a a a a a a a a a a a a a a a a a a a
27
See eg, Nilabati Behera v State of Orissa, (1993) 2 SCC 746; C. Masilamani Mudaliar v The Idol of Sri
aSwaminathaswami Swaminathaswami Thirukoli, (1996) 8 SCC 525; Sarbananda Sonowal v Union of India, a a a a a a a a a a a a
a(2005) 5 SCC 665. a a a
28
State of West Bengal v Kesoram Industries Ltd, (2004) 10 SCC 201.
29
People’s Union for Civil Liberties v Union of India, (1997) 3 SCC 433
30
(1997) 6 SCC 241.
a a a a

a read into [fundamental rights] in the absence of enacted domestic law occupying the field
a when there is no inconsistency between them.31 The wholesale importation of entire

a conventions, very loosely channeled through fundamental rights, has made the Court’s
a a a a a a a a a a
a approach closer to direct application rather than interpretative incorporation.32 Since this case,
a the Court has time and again reiterated the notion of direct importation of international law
a into the Constitution. The Court has not only channeled international law through
a fundamental rights provisions, but has also determined the constitutionality of statutory
a a a a a a a a a a
a provisions in light of India’s international commitments.a a a a a a a
For example, in 1994 it explicitly stated that ‘…the spirit of the international convention has
a to be kept in view in considering the validity of the impugned provisions and their
a applications.33 In the clearest example of such use, the Court framed as a distinct issue fora a a a a a a a a a a a a a a
a determination, the question of ‘whether [an] Act [providing for affirmative action in higher a a a a a a a a a a a a
a education] is in violation of Article 26 of the Universal Declaration of Human Rights which

a postulates that technical and professional education shall be made generally available and
a higher education shall be equally accessible to all on the basis of merit…’34

Thus, the Court has signaled the imperativity of international law norms in the domestic legal
a order, and has done so by making international law directly applicable to disputes before the
a Court. It is ironic therefore that as late as in 2009, the Indian Supreme Court has been
a declaring that India is a dualist country.35 The arc of the Court’s decisions over time indicates
a otherwise, exhibiting a move along the continuum from dualism to pro-monist conceptions of
a engagement with international law. a a a
31
Ibid.
a
32
Apparel Export Promotion Council v A.K. Chopra, (1999) 1 SCC 759; The Chairman, Railway Board v
aChandrima Das, (2000) 2 SCC 465; Kuldip Nayar v Union of India, (2006) 7 SCC 1.
33
P.N. Krishna Lal v Govt of Kerala, 1995 Supp (2) SCC 187. See also John Vallamattom v Union of India,
a(2003) 6 SCC 611. a a a
34
Ashoka Kumar Thakur v Union of India, (2007) 4 SCC 397. This case was referred to a larger bench which
ahanded down its decision in 2008, but did not address the issue framed. Ashoka Kumar Thakur v Union of
aIndia, (2008) 6 SCC 1.

a a a a
35
Bhavesh Jayanti Lakhani v State of Maharashtra, (2009)9SCC551 (‘India follows the doctrine of dualism and
anot monoism (sic)’).

a a

SUGGESTIONS AND CONCLUSION:
I would suggest that a monistic view of man seems most consistent with current thinking in
a the behavioral sciences and with the biblical viewpoint. Since man is tremendously complex,
a many different theoretical perspectives and vocabularies are utilized in describing him. Each
a system gives a partial picture and focuses on different aspects. It is our language systems and
a theories which create the illusion of man's being made up of various "parts," but man himself
a is an integral unity.
a a a a
The disjuncture between the theory and practice of India’s engagement with international law
a might be welcomed by some as indicating a much-needed openness to a progressive body of

a norms, particularly international human rights. However, as I have argued in previous work,
a international law itself comes in different shapes and sizes—and not all international law
a norms are progressive. Third world countries like India have raised significant concerns over
a the international economic regime, for example.

a a a a a a
Concerns such as these are exacerbated by the unequal bargaining power of parties, the often
a opaque decision making processes, and the democratic deficit in international law making.
a For these reasons, an attitude of openness towards international law ought to be tempered
a with careful evaluation of the suitability of its norms in the country’s specific domestic
a contexts. Viewed from this angle, the lack of executive accountability, the impact on
a federalism, the loss of value of legal pluralism, and the amplification of international law’s
a democratic deficit, all caution against whittling down Parliamentary scrutiny over the
a a a a a a a a a a
a domestication of international law. a a a A
The concern with such unscrutinized internalization of international law is exacerbated by the
a judicial incorporation of international law as a distinct channel through which international

a norms enter the domestic arena, often at a constitutional level. India is not alone in facing
a these challenges on how to engage with international law. Similar concerns regarding the lack
a of adequate legislative scrutiny over the assumption and internalization of international law
a obligations have been raised in other common law countries that follow the British model of
a allocation of powers between the Legislature and Executive as well. Many such countries
a have adopted stringent Parliamentary committee procedures to scrutinize the Executive’s

a a a a a a a a a
a assumption of international legal obligations. Whether or not such committee procedures

a a a a a a a a a a
a provide adequate scrutiny is a different matter. What is important to note is that countries are

a adapting their domestic division of powers to respond to new international legal realities. For
a the reasons mentioned above, India should follow suit.

a a a a a a a
BIBLIOGRAPHY AND WEBLIOGRAPHY:
BOOKS:
1. Joanna Harrington, Scrutiny and Approval: The Role for Westminster Style
Parliaments in TreatyMaking, 55 Intl & Comparative L Quarterly (2006) 121.
2. W. D. Stacey, The Pauline View of Man (New York, 1956), pp. 174-178.
3. J. M. Berecz, "Modification of Smoking Behavior through Self-administered
Punishment of Imagined Behavior: A New Approach to Aversion Therapy," Journal
of Consulting and Clinical Psychology 38 (1972): 244-250.
4. J. E. Royce, "Does Person or Self Imply Dualism?," American Psychologist 28

(1973): 883-891.
E-RESOURCES:
1. J. G. Starke, Monism and Dualism in the Theory of International Law, 17 BRIT. Y.B.
INT'l L. 66 (1936).
2. Hans Kelsen, Sovereignty, reprinted in Malcolm Evens and Patrick Capps (ed.),
International Law, Vol 1.
3. David Mednicoff, The Importance of Being Quasi-Democratic—The Domestication

of International Human Rights in American and Arab Politics, 38 Victoria Univ
Wellington L Rev (2007) 317, 317–318. S

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2018LLB003 - Sem 5 - P.I.L - Research Paper - Monism Vis-S-Vis Dualism

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PUBLIC INTERNATIONAL LAW

DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

MONISM VIS-À-VIS DUALISM

PUBLIC INTERNATIONAL LAW

NAME OF THE FACULTY:

Prof. ARUNA KAMMILA

NAME OF THE CANDIDATE:

MONISM VIS-À-VIS DUALISM Page 1

I am highly indebted to my Hon’ble Public International Law Professor, Mrs. Aruna

MONISM VIS-À-VIS DUALISM Page 2

MONISM VIS-À-VIS DUALISM Page 3

a ways to understand domestic judicial reasoning on international law.

a falls within one of those two types.

MONISM VIS-À-VIS DUALISM Page 4

OBJECTIVE OF THE STUDY:

SCOPE OF THE STUDY:

a domestic jurisdiction of any state? a a a a

a international law might be welcomed by some as indicating a much-needed openness

a to a progressive body of norms?

• The validity of international law in a dualist domestic system is determined by a rule

a variety of ways in which domestic systems incorporate international law, some

a scholars have preferred the term “pluralism” to “dualism.”

a international law may be treated in a variety of ways by the different institutions of a

MONISM VIS-À-VIS DUALISM Page 5

MONISM VIS-À-VIS DUALISM Page 6

ORIGINS OF THE THEORIES:

a of sovereignty as a form of introduction to the Austinian doctrines. This is to lose sight,

a genere potuerunt iura gentium moribus introduci."

a nihil ad divinas aut naturales leges pertinet."

a scientific theory of international law. a a a a a

MONISM VIS-À-VIS DUALISM Page 7

a Parliament of the Law of Nations, to the nineteenth-century doctrine of Parliament's

a absolute sovereignty or the doctrine of auto-limitation, always appeared to lack a juridical

a monism. On this question, contemporary jurists are about equally divided.

MONISM VIS-À-VIS DUALISM Page 8

a between state law and international law. a a a a a a

a norm of superior force."' a a a

MONISM VIS-À-VIS DUALISM:

a Law), 47 Harvard Intl LJ (2006) 327.

MONISM VIS-À-VIS DUALISM Page 9

a authority to transnational fora and processes.6 a a a a a a

a to operate over a given subject or territory.10

aResponsibility, U.N. Doc. A/59/565 (2 Dec 2004) 2. a a a a a a a

aIntl L (2004) 907, 913.

a(1992) 310, 311. a a

MONISM VIS-À-VIS DUALISM Page 10

a domestic legal processes.12 a a a

a contemporary discourses as promoting/reflecting a cosmopolitan culture and the a a a a a a a a

a universalization of value, as well as serving the imperatives of global governance. Dualism on a a a a a a a a a a a a a

a preserving/promoting international legal pluralism; as protecting the distinct and self- a a a a a a a a a

a new political elite of international lawyers.’

aNational and International Law (OUP, New York, 2007) 6–10.

MONISM VIS-À-VIS DUALISM Page 11

a requirements for subjecting international law to domestic majoritarian checks.

a domestication by the legislature. a a a

DUALISM VERSUS MONISM: THE MIND-BODY PROBLEM

MONISM VIS-À-VIS DUALISM Page 12

Interestingly, although some Christians today have a clearlyarticulated monistic philosophy