Beyond the Monist-Dualist Dichotomy: The Case for a Dynamic Spectrum
Prabhav Sharma & Armaan Angra*
Volume 16 Issue 2 (2023)
This paper contests the dichotomous monist-dualist understanding of the relationship between municipal and international law. It determines that this approach is rendered limited as it proposes a sense of legal clarity, which, in fact, is non-existent. This is evidenced in the inconsistency between textual constitutional expression and practical application in written as well as unwritten constitutions. It is augmented by the contemporary critique of constitutional orthodoxy in favour of rights-based jurisprudence, a weak normative view of constitutional texts regulating the incorporation of international law, and contradictions between the textual proclamations and historical customary practices. Instead, the paper proposes a spectrum-based vision that recognises the fluid tendencies of nations and multilateral institutions in interacting with and reciprocating the laws and actions of others. The paper demonstrates the absence of pure monism and pure dualism and argues that each nation is uniquely positioned on a spectrum between these two far ends. This position itself is dynamic and relative. It may change, and it may be described in relation to another nation or the same nation in a different time period. The paper argues that, additionally to the role played by constitutional courts in altering the value attached to textual constitutional expression, the degree of institutionalisation of regional organisations is significant. It delves deep into the case of the European Union (‘EU’) to establish the point. Finally, despite determining the EU as an exceptional body fostering monist tendencies among member states via the doctrine of direct effect, the paper focuses on the reactionary capacity of national constitutional courts in determining the degree of monism on the spectrum.