Relation Between International Law And Municipal Law, 27 Virginia Law Review 137 (1940)
Recent events on this continent make it seem appropriate once more to discuss the much – debated question of the relation between international law and municipal law. For one school, the dualists, municipal law prevails in case of conflict; for the other school, the monists international law prevails. There are two special features about the debate which warrant mention: first, that while the disputants do not widely differ in the ultimate solution of practical problems, they do differ considerably in their major premises and in the resulting theories; and second, that the attempt of various countries on occasion to escape the restraints of international law persuades them to find a justifying theory in its supposed limited scope and in a compensating emphasis upon State sovereignty. Those who have maintained the dualism of the two systems and the predominance of municipal law have found some theoretical support in the supposed weakness of international law as a legal system. The alleged readiness with which the rules have been violated in time of war lends additional strength to this view. The undue demands made on international law as a supposed preserver of peace and the failure to allow for the interjection of politics further disturbs balanced judgment. The Austinians have done their share by asserting that international law was not law at all because it did not conform to their rigid tests of a rule laid down by a political superior to an inferior, that international law was not created by legislatures, and that hence in their judgment it constituted merely precepts of morality. Nor in times like these is the argument for its legal nature helped by the unfounded allegation that only public opinion sustains international law.
Date of Authorship for this Version
municipal law, monists, dualists, morality, sovereignty
Borchard, Edwin, "Relation Between International Law and Municipal Law" (1940). Faculty Scholarship Series. Paper 3498.
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