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The relationship between international law, European Union law and English law.determine in what way they have regard to one another, o how the substantive law of each system is pleaded in the respective other systems o how this law is applied, which necessarily involves making a conclusion on the supremacy of the laws, and possibly the legal systems, in question.
o o o o
3/4 possible theories: the Monist the Dualist the theory of functionalism/constitutional or legal pluralism the half theory (as per Ziegler) of Fitzmaurice
Monism o Monist theories posit that all law is part of one legal system
? the laws govern the same subject and are incorporated without any need for implementation by the national legislator.
? While Monist theories do not necessarily contain statements about the hierarchy of the systems, the most prominent proposer of this theory, Hans Kelsen has proposed the primacy of the IL though, as Ziegler points out, this is not necessarily a facet of all monist theories.
Dualism o Dualism may be considered the contrasting theory to monism: such theories perceive both IL and national law as different legal systems
? the subject-matter of each system is essentially different and each system is essentially supreme in its own sphere.
? In dualist theories, international law is not automatically incorporated into the state.
? Ironically, what is important to note in both theories, is that whatever theory is operative for a state, the choice of that theory is determined by the decision of the state, so one might say that even monism has a dualist element in the very basic sense that the theory must be adopted by choice. (Zielger's thought)
Bethlehem's formulation of functionalism: o he regards the EU as the "intruder" to the time-honoured debate over the relationship between IL and national law, characterized by the Monist-dualist debate. o He argues that EU law has "fundamentally reconceived the relationship between national law and "inter"-national law, at least for the Member states", presupposing a different relationship between international law (more generally) and national law. o Traditional theories of Monism and Dualism cannot correctly define the relationship between EU, IL and national law, and further such an attempt at "systemic integrity" is damaging as it "mis-describes the reality", perpetuating
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