Dualism and Monism

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UNIVERSITY OF NAIROBI SCHOOL OF LAW-KISUMU CAMPUS NJUGUNA SAMUEL MACHARIA G34/38046/2010 PUBLIC INTERNATIONAL LAW TAKE HOME ASSIGNMENT LECTURER; DR.PETER ONYANGO QUESTION Discuss the monist and dualist theories of international law. Monism The terms monist and dualist are terms used to describe the theories that have been formulated to explain the inter relationship between the international law and the national [or municipal law]. Over the last century there has been unprecedented growth in the premise of international law. It has developed in huge proponents as the world grows forth to become what some scholars call a global village. Thus it is of utmost importance that we give the theoretical approaches to this inter relation a lot of consideration. According to J.G Starke there is a danger that there may be a lot of conflicts if such development is not treated with certain weight. According to Dixon, the monist theory supposes that international law and national law are simply two components of a single body of knowledge called 'law'. 'Law' is seen as a single entity of which 'national' and 'international' versions are merely particular manifestation. In the case of conflicts between the two systems, international law is said to prevail.He is also of the idea that incase of any would be conflict between the two laws, international law is said to prevail. An explanation to this has been offered by various theorists and scholars. Hans Kelsen offers an explanation as to why international law is deemed supreme. He sees the superiority of international law as a direct consequence of his “basic norm” of all law. This basic norm (fundamental principle from which all law gains its validity) is that the states should behave as they have customarily behaved. Thus international law ranks higher in the hierarchical order and national law should be subject to such norms.
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