(a) In terms of sources – According to dualists, the sources of municipal laws are habits that have developed within state boundaries, while sources of international law have developed among states and the legislative treaties they conclude. According to the medieval philosophical worldview, monism means “one hierarchically organized legal system. In ancient Judaism, the law was universal and communicated to the people by God. The law reflected the concepts of reason rooted in nature, created by God and harmoniously organized with laws of universal validity. [4] Monist theory asserts that there was only one set of legal systems, which is the “domestic legal system”. International law takes precedence over domestic law as defined in this theory. This theory was developed by lawyer Kelsen. This theory establishes the relationship between international law and domestic law. Kelsen explains that the monist theory asserts that international law constitutes a single rule of law as well as distinct state legal structures. He also defined that “international law, together with the legal systems of States, can be considered as a unified system of norms, just as it is customary to consider the legal system of the State as a unit”. International law is a superior legal order and is essential because it derives from State practice, while domestic or national law is derived from the State as defined in international law. According to lawyer Lauterpacht, the sovereign state exists by itself. [5] Under the common law approach, international law is considered superior because it provides the strongest protection of human rights to individuals.
The rights and obligations of certain issues will be available in national and international legal systems, which means that obligations will be transferred from the domestic legal system to the international legal system. He believes in the hierarchy of the legal order, which is natural law, international law and finally national law. International law is of paramount importance within the framework of the universal legal order. [3] Mohd.AqibAslam, “International Law: Definition, Nature and Basis,” Legal Service India, available www.legalserviceindia.com/legal/article-2167-international-law-definitions-nature-and-basis.html, accessed April 13, 2021 For example: In Article 2 of the Charter of the United Nations, this theory justifies that the United Nations should have conditions under which third countries must act in accordance with the principles of the Charter of the United Nations. Thus, the doctrine of consent is primarily concerned with international peace and security between sovereign countries, through which two countries can maintain an acceptable relationship with each other. 5. Delegation theory: This theory states that the rules of international law known as “constitutional rules of peoples/treaties” delegate a right to the constitution of each state so that each state can decide or determine for itself how and when the provisions of an international treaty or convention enter into force and how they are implemented or enshrined in law. The relationship between international law and national law is mentioned in the two main theories such as the monistic and dualistic theories. In monistic theory, national law and international law are similar laws and there should be no separation between them and is based on natural law. In the dualistic theory, international law and domestic law are not similar, and they are the two separate laws. Both theories have their own perspectives on international law, but some countries follow one of these theories purely and some countries follow international law when it suits them. The theory of harmonization asserts that neither theory explains the relationship between international law and domestic law.
Unlike international law, local law is the national, national or national law of a sovereign state. Municipal law includes not only national law, but also federal, provincial, tribal, municipal and municipal law. It refers to the laws that govern a particular city or nation, as well as the political bodies that govern certain cities or countries. Therefore, municipal law refers to laws passed by the legislature or legislative body of a state that apply only to that state. However, Dr. P.C. Rao rightly warns that, according to Article 73, “executive power extends to all transactions which bring the Union into relations with a foreign country or any other international person”. Accordingly, if there is a control manager; The principles of customary international law cannot be invoked. Nor can such principles prevail over the case-law.
It is a distinct approach from the dualistic and monistic approach. It was formulated by Rousseau and Fitzmaurice, who tried to explain that every law is supreme in its field. The dualistic and monistic theory does not successfully define the relationship between international law and domestic law, which law is superior to others. The theory of harmonization explains that in the event of a conflict between domestic and international laws, national laws are applicable in the domestic sphere and separate the obligations of the State from international laws. It is proposed that the courts attempt to minimize the differences between these two statutes through the harmonization process, which ultimately leads to equal positions for these two statutes.