This chapter argues that the remnants of substantive dualism or the “Cartesian” theory of mind remain rooted in the jurisprudence of tort, criminal law, and constitutional criminal procedure. She argues that neuroscience shows that dualism is both conceptually bankrupt and empirically flawed. As other chapters in this book argue, advances in neuroscience are putting pressure (or worse) on existing legal doctrines in ways that will force much-needed change. This chapter offers an alternative account of human action, which avoids the errors of dualism without compromising the purposes of law in these areas, and proposes changes to correct the doctrine accordingly. The chapter then concludes by closing the doctrinal and normative implications of this integrationist narrative. Despite the mixing of monist and dualist perspectives in domestic and international politics, the competing ideologies of Kelsen and Triepel are proving to be the best way to advance the rule of law on the international stage. The competition of ideas has generated sustained scientific and legal interest in the question of how and under what circumstances international legal norms that advance the goals of human rights, economic development and world peace can be applied democratically and politically legitimately. The conventional wisdom in international law is that a State can accept international law and integrate it into the national system in two ways. In a single-tier legal system, international law is considered to be linked to and part of the domestic legal order of a State. In a dualistic legal system, on the other hand, international law is different from national law and, in order to influence rights and obligations at the national level, international law must be incorporated into domestic law through legislative procedures. The tension between these divergent views of international law reached its peak in Europe between World War I and World War II, when jurists began to seriously question how and to what extent binding international legal obligations and formal international institutions could minimize the danger of war.
At its core, however, the distinction between a monistic theory and a dualistic theory is based on two competing and important objectives. In particular, monist theory gives priority to the desirability of a formal international legal order to establish the rule of law among nations, while dualistic theory gives priority to notions of individual self-determination and sovereignty at the state level. A one-order State and a dualistic State can both comply with international law. It can only be said that a single-tier state is less likely to violate international rules because its judges can apply international law directly. [11] Neglect or unwillingness to transpose international law into national law can only be a problem in dualistic states. States are free to choose how they wish to comply with international law, but they are always responsible if they do not adapt their national legal systems to comply with international law. Either they adopt a constitution that implements a monist system so that international law can be applied directly and without transformation, or they do not. But then they have to translate all international law into national law. In a monistic state, we only rely on judges and not legislators, but judges can also make mistakes.
If a judge of a single-tier state makes mistakes in the application of international law, then the country violates international law in the same way as a dualistic country which, for one reason or another, does not allow its judges to apply international law directly and does not translate or translate it correctly and effectively. [11] One of the reasons for the preference for dualism is precisely the fear that national judges are unfamiliar with international law – a very complex area of law – and are therefore prone to error. Provides an excellent summary and abundant literature on the rise and fall of theories of monism and dualism, as well as an overview of the various approaches of the national legal systems of various States to international law. Useful and concise. It is also important to note that there is a perception problem regarding the development of tools such as LDPC and its supplements. These instruments must be able to meet legal requirements related to issues of legal dualism and therefore different from those specific to official languages. Sections 8.1 and 8.2 of the Interpretation Act are a good example of cases where the bisystemic aspect of relations with the provinces, particularly with Quebec, takes precedence over the linguistic aspect because of its civil law system and the federal process of harmonizing laws with the 1994 Civil Code. Chapter 2 describes four ways of conceptualizing the relationship between international and domestic law: monism, dualism, reverse monism, and harmonization.
A classic treatment of concepts. The use of private law concepts in the context of federal law plays an important role in the process of resolving the private law interpretation dilemma. Consequently, judicial interpretation must first take precedence over the definition of the legal concept of private law and not over official languages as vehicles for bilingual communication. As Ku notes, most of us have read at some point that dualism promotes violations of international law, while monism promotes respect for international law. However, such sentences create confusion rather than clarity, and they do so for a number of reasons. The distinction is made on the basis of observed communication contexts and their relationship to the separation of powers between the federal and provincial levels in the Canadian legal framework, i.e.: Editors view orthodox representations of monism and dualism as a hypothesis of fixed and rigid categories of interaction, arguing instead that “national” categories. “International” and “State” are fluid. The different chapters examine national contexts, including Australia, New Zealand, Canada and China, using this fluidity as a guiding principle. A good example of the modern approach to monism and dualism. Denza positions theories as an unnecessary explanatory power and instead focuses on specific questions about the relationship between international law and national law. These include the following questions: “Is international regulation directly applicable and directly effective?” and “Can a treaty prevail over a national constitutional norm?” Accessible and practice-oriented.
Our answer consists of three parts. First, we show that Miller is not a case of dualism. Rather, it is the domestic procedure to be applied when the State denounces an international agreement. Second, neither dualism nor monism encourages (or hinders) the termination of international obligations by the State. Thirdly, we take the example of Switzerland to show that monism also entails a number of challenges with regard to the termination of international agreements and, more generally, respect for international law by States. We also highlight the fact that the Swiss law on termination of contracts is similar to the procedure identified by the High Court in the Miller case. In short, neither monism nor dualism encourages or discourages a State from terminating its international obligations. As can be seen in the Quebec (Attorney General) decision cited above, the separation of powers is at the heart of legal dualism. In the absence of exclusive power under section 91 of the Constitution Act, 1867 (U.K.), 30 & 31 Victoria, c 3, the ability of Parliament to regulate matters of private law (e.g., with respect to the collection of debts), primarily on its ability to determine the powers of the provinces with respect to “property and civil rights” (92 (13) S.C.
1867) and, generally, on “matters of a purely local or private nature” (92 (16) S.C. 1867), taking into account the relevant constitutional doctrine and the relevant facts. Ku`s contribution highlights a combination of two facts: first, the UK`s contractual obligations due to dualism must be implemented by national law in order to be valid in the national legal order; second, under British constitutional law, that domestic law then comes into its own right, since the Crown cannot change it unilaterally. This second point, however, is not a logical consequence of dualism. Dualism in itself does not make it difficult for a State to change its international obligations. In monistic states, domestic law can create similar obstacles, as the Swiss example (below III) shows. Unlike the communication context of legislative bijuralism, legal dualism is embodied in the process of resolving the dilemma of private law interpretation, the representation of which can be observed in the corpus of judicial decisions. The “interpretive dilemma,” also known as “complementarity dissociation,” means that any interpretation of federal law requires a determination of whether it is necessary to resort to the private law of the state where the dispute arises to complete it.