• Dualistic theory

According to dualistic theory, International law and municipal laws of the several States are
two distinct, separate and self-contained legal systems. Being separate systems,
International Law would not as such form part of the internal law of a state.

Dualistic view was developed by a prominent German scholar Triepel in 1899. For him,
International Law and domestic or municipal law existed on separate planes, the former
governing international relations, the latter relations between individuals and between the
individual and the state.

The theory was later on followed by Italian jurist Anzilotti. Starke says that the theory
represents two entirely distinct legal systems International Law having an instrinsically
different character from that of State Law. The above authors are of the view that the two
systems of law differ from each other on the following grounds:-

(a) Regarding Sources – According to dualists, while the sources of municipal laws are
custom grown up within the boundaries of the states, the sources of International Laws are
custom grown up among the States and law- making treaties concluded by them.

(b) Regarding Subjects – Municipal law regulates the relations between the individual and
corporate entities, International Law regulates primarily the relations between States.

(c) Regarding Principles – Municipal laws in a state are obeyed because they are the
principles of State Legislatures, International Law is obeyed because of principle of pacta
sunt servanda. Thus International law is followed because States are morally bound to
observe them.

(d) Regarding Dynamism of the Subject Matter – Subject Matter of the two systems are
also different. While the subject matter of international law has always remained dynamic,
the subject matter of the municipal law is limited.

• Dualist theory is subjected to many criticisms

Firstly, the view that international law and municipal law differ from each other implies that
international law cannot be a part of municipal law. It’s not correct because there are
certain fundamental principles of international law which are binding upon a state, even
against its own will.

Secondly, it is not correct to say that international law regulates the relations of states only
at present it regulates certain activities of individuals as well.

Thirdly, no doubt, pacta sunt servanda is an important principle of international law, but it
cannot be said that it is the only principle on which international law rests. There are certain
rules which are legally binding on a State.
• Monistic Theory

Monist theory was developed by German scholars namely Moser, Hegel, Bergbohm, Zorn,
Wenzel in the late 18th century and in the 19th century by Wright, Kelsen and Duguit. It is
believed that international law and municipal law are the aspects of one legal system and
are not different to each other.

They are in the view that both international laws and municipal law originate from the
source, branch, are facets of the same phenomenon and belongs to the unitary order
comprised by the conception of law. But it has not clarified that about the concept of one
legal system that whether it is municipal law or international law. According to the scholars
both the laws in one way or the other regulate the conduct of individuals.

• Delegation Theory:

Monist support delegation theory which states that every state constitution has been
delegated the authority in which manner the international law will apply to them. According
to this theory international law will apply to municipal law without any specific delegation
and this gives birth to single legal system. The theory, thus provide primacy of international
law over municipal law, as it is applied immediately without any transformation.6

• Kelsen: Grundnorm Theory:

Kelsen (Austrian Jurist) says that both the laws are "manifestation of a single unit of law". He
also believes that since states should behave as they customarily have behaved, the
international law is supreme and also because international laws represent higher authority
and are derived from state's practices. According to Kelsen it becomes impossible to deny
that two legal systems constitute a single system when international law is accepted that it
is rules of legal character.

• Criticism:

Monism is very sound theory and it is really difficult to disapprove with Kelsen view that the
man is root of all laws. But in actual practice implementation of this theory is difficult
because every state is a sovereign body and is not bound by international law. States obey
international law only when they consent for the same or on some other account.

• Differences:

• Monism

1. As per the advocates of natural law, Municipal law and International Law forms a single
legal system.

2. Monism is supported by the advocates of natural law.

4. In a true monisitc country if a national law contradicts International Law then it becomes
null and void.

5. If a monist state ratifies a treaty or a convention, and does not create a law explicitly
incorporating the treaty then their act of non incorporation will not violate the International
Law.

6. In a monistic State International Law automatically gets embedded in the Municipal law
and the contradicting part gets automatically translated away.

7. Supporters of Monism: kelson.

8. State which follows Monistic approach: germany.

• Dualism

1. Municipal law and International Law are two different and distinct legal systems.

2. It is supported by the advocates of positive law.

3. In a dualist country there exists a need for translation of International into Municipal law
in order to give it an effect.

4. In a true dualistic country, if a national law contradicts International law then it becomes
doesn’t becomes null and void, unless it is already translated in its municipal law

5. If a dualist State ratifies a treaty or a convention, but does not create a law explicitly
incorporating the treaty, then their act of non incorporation violates the International law.

6. International law does not get automatically embedded in the Municipal law.

7. Contradicting parts of the Municipal law has to be amended by the state, as it does not
get automatically translated away in a dualist country.

8. In the absence of translation of International law into Municipal law the International law
will not exist as a law.

9. Supporter: hersch lauterpatch, triepel.

10. Country which follows: United kingdom.