Domestic law, which can also be called national law or municipal law, come from legislature and customs, whereas international law consists of treaties and customs. Legislature is a body of people who are able to make or enact laws. Treaties are formal agreements among and between countries. Customs are practices which are deemed normal for individuals or states.
Enforcement of International Law and Domestic Law
The most obvious and, arguably, the most important difference between international law and domestic law is how they are enforced. International law lacks a common executive, which means that there is no power which can make a state or nation accept a court decision. Thus, the states or countries operating under international law often have a weak sense of community, meaning that obeying the law will often come second to that which is seen necessary for survival. Domestic law, on the other hand, consists of all three branches of government – executive, judicial, and legislative. As you probably know, these three branches are separate from each other and are based on a system of checks and balances. This limits the power of each branch so that no one becomes too powerful. Unlike international law, those who violate domestic law will receive a punishment deemed fit by a court executive, and this punishment will be enforced.
Cohabitation: Monism and Dualism
As is described above, dualism is a doctrine which clearly separates international law and domestic law. The subjects of international law and domestic law are different, regulated by separate legal orders. Under this doctrine, one legal system – international or domestic – does not have the undeniable right to challenge or alter the rules set in place by the other.
Monism, on the other hand, is much less common. This doctrine views international law as more important, and thus all of the citizens of that nation fall under the rule of international law. This is created by an environment in which fairness – the standard upon which most international law is based – is seen as the most “natural” law, and thus is supreme. This may seem very utopian, but it ultimately contradicts itself, undermining the doctrine of separation of powers upon which a democratic society is based and denying individual states a legal capacity.
Keeping international law and domestic law as separate entities, then, is important. A state under the dualist doctrine may deal with the consequences of international law (typically it affects that state’s position among other international entities) without having the validity of its internal laws undermined. Conversely, a state’s domestic law may not be used at the international level in order to defend its actions. If a legal issue arises which international law doesn’t cover, then a state’s domestic law can be referenced, but not enforced at the international level.
Filed under:Misc, Law