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i
I N T E R N AT I O N A L L AW I N
DOMESTIC LEGAL ORDERS
Series Editors
ANDRÉ NOLLKAEMPER
Professor of Public International Law at the University of Amsterdam
AU G U S T R E I N I S C H
Professor of International and European Law at the University of Vienna
Legal Monism
ii
I N T E R N AT I O N A L L AW I N
DOMESTIC LEGAL ORDERS
The topic of international law in domestic legal orders has risen in prominence
since the end of the Cold War. The last decades have witnessed a tremendous in-
crease in international agreements on various subjects, impacting on domestic
law and proving to be relevant to domestic litigation. These changes mean that
domestic courts have the potential to make a greater contribution to the appli-
cation and development of international law. This series analyses and examines
these trends, looking at questions of international law in domestic legal orders
from a variety of perspectives.
Legal Monism
Law, Philosophy, and Politics
PAU L G R A G L
1
iv
1
Great Clarendon Street, Oxford, OX2 6DP,
United Kingdom
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It furthers the University’s objective of excellence in research, scholarship,
and education by publishing worldwide. Oxford is a registered trade mark of
Oxford University Press in the UK and in certain other countries
© Paul Gragl 2018
The moral rights of the authorhave been asserted
First Edition published in 2018
Impression: 1
All rights reserved. No part of this publication may be reproduced, stored in
a retrieval system, or transmitted, in any form or by any means, without the
prior permission in writing of Oxford University Press, or as expressly permitted
by law, by licence or under terms agreed with the appropriate reprographics
rights organization. Enquiries concerning reproduction outside the scope of the
above should be sent to the Rights Department, Oxford University Press, at the
address above
You must not circulate this work in any other form
and you must impose this same condition on any acquirer
Crown copyright material is reproduced under Class Licence
Number C01P0000148 with the permission of OPSI
and the Queen’s Printer for Scotland
Published in the United States of America by Oxford University Press
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Links to third party websites are provided by Oxford in good faith and
for information only. Oxford disclaims any responsibility for the materials
contained in any third party website referenced in this work.
v
For Jennifer
—quo domum—
vi
vi
Preface
The principal thought which inspired this book is my refusal to accept contradic-
tions in the traditional Aristotelian sense, namely that contradictory statements
cannot both be true in the same sense and at the same time. To say that ‘it is raining’
and that ‘it is not raining’ violates the logical law of non-contradiction1 and does not
make sense unless one changes the meaning of the word ‘raining’ (e.g. to ‘snowing’).
But then one also has to accept that the subject of the conversation is no longer con-
cerned with ‘rain’. There are of course new and interesting trends in logic such as
dialetheism, which holds that there can be true contradictions,2 but I must admit
that my traditional (and hopefully not close-minded) philosophical upbringing pre-
vents me from warming to these new and nonetheless fascinating concepts. For the
real crux of the matter is its extension to the law, and what consequences follow from
contradictory commands both logically and practically in a legal context: logically,
the non-resolution of conflicts between norms originating in different bodies of law
(say, national and international law) subverts the meaning of ‘legal validity’, which
constitutes, after all, the very existence of a legal norm; and practically, leaves legal
addressees (i.e. individuals, including myself and you, the most esteemed reader
of these lines) out in the cold world of contradicting obligations and unresolved
disputes. Just imagine your own confusion back in the day when you asked your
mother whether you could go out longer on a Saturday night and she referred you to
your father, who then said: ‘Ask your mother’.
It is my opinion that such a plurality of authorities leads nowhere and only causes
legal uncertainty. As a philosopher, I am also a seeker of clarity and answers, and
consequently, I am not a big fan of legal pluralism. As a committed international and
EU lawyer, my vision is a global legal order which realizes peace through law, and
thus I am not a big fan of legal dualism or monism under the primacy of national
law, which both—ultimately—fall back to nineteenth-century conceptions of state
sovereignty and the deification of the state. Therefore, it is the mission of this book
to present, examine, and defend the concept of legal monism as a solution to these
problems. Monism is not an overly popular theoretical choice to describe the rela-
tionship between different bodies of law these days, and dualism and particularly
pluralism take centre stage in current legal theoretical studies. Yet this gave me all the
more reason not to jump on the dualist/pluralist bandwagon and to join the appar-
ently declining monist camp. This book represents my research of the last three years
on how legal monism can be saved from obsoleteness and how it can be maintained
as a viable legal theory to resolve normative conflicts and to explain the relationship
1 See Aristotle, Metaphysics (ed and transl Jonathan Barnes, The Complete Works of Aristotle, Vol 2;
Oxford University Press, 1984) 1011b13–14.
2 See e.g. Graham Priest, In Contradiction: A Study of the Transconsistent (2nd edn; Clarendon
Press, 2006).
vi
viii Preface
between legal orders. In other words, it attempts to revive an old concept to deal with
very contemporary problems.
These contemporary problems include, to name just a few, the toxic fallout of
the political year 2016: the decision of the United Kingdom to leave the European
Union (Brexit), the election of Donald Trump in the United States, the general
rise of populism and irrational political choices, and—most of all—the dire conse-
quences of these facts: a growing disrespect for human rights, representative dem-
ocracy, and the rule of law. I consider these three cultural achievements the crucial
heritage of the Age of the Enlightenment upon which the modern world was built.
However, these achievements appear to be in severe danger. Legal monism, however,
includes a healthy respect for all these principles, and with this book, I will do my
part to uphold, protect, and promote these values.
This book was mostly written at Queen Mary University of London, where I was
very fortunate to meet remarkable people and colleagues who directly or indirectly
contributed to this project. For their constant support, advice, and encouragement
I would like to thank Valsamis Mitsilegas, who continuously helped me with my
career trajectory at Queen Mary; Malgosia Fitzmaurice, with whom I spent hun-
dreds of morning coffees talking shop and from whom I received invaluable assist-
ance concerning academic life; Roger Cotterrell, who acted as my academic mentor
during my first three years at Queen Mary and who, more as a legal pluralist, pro-
vided me with excellent counterarguments to be taken into account; Maks Del Mar,
who also showed me the other side of things in legal theory and offered me enor-
mously constructive comments; and Violeta Moreno-Lax, Angelos Dimopoulos,
and Nick Bernard, with whom I spent many hours discussing the intricacies of
EU law.
This book was, however, also written in Graz, Austria, especially outside of term
time. At the University of Graz, I am very grateful to Joseph Marko, who opened
my eyes to law beyond positivism and the political sciences (in particular in terms
of democracy theory and constructivism in international relations). I am also very
much indebted to the anonymous reviewers who provided me with immensely
helpful and constructive comments, thereby pushing my project in the right dir-
ection. I would also like to thank Kirsten Schmalenbach from the University of
Salzburg for her unwavering and constant support throughout the years, as well
as her invaluable advice and expertise. Lastly, my sincerest gratitude goes to Gerd
Oberleitner for his organizational support in finishing this project and to Matthias
Klatt for actively supporting this habilitation at the University of Graz—without
them, the habilitation process would have never been possible.
Outside academia, but nonetheless in my hometown of Graz, my thanks also
go to my parents, who have always supported me with all their hearts. My last and
biggest thank you goes to my lovely wife Jennifer. As I wrote in my first book, I am
immensely grateful for your constant moral support, your help with the delicacies of
the English language, and your patience with my endless talk about too much phil-
osophy and too much law. But I am also grateful for your patience with my chosen
career path, the long times apart, the professional insecurities, and my very own
personal Odyssey. Thank you so much! Quo domum.
ix
Table of Contents
List of Figures xv
Table of Cases xvii
List of Abbreviations xxv
I . I N T RO D U C T I O N A N D T H E O RY
1. Introduction 3
1. The Principal Question 3
2. Framing the Problem 4
A. How theories come about: normative conflicts and relationships
between different bodies of law 4
B. What the law is: one, two, or many? 6
(1) Public international law as ‘non-law’ 6
(2) Distinct and separate legal orders: dualism 7
(3) Law as a monolith: monism 8
(4) ‘The more the merrier’: pluralism 9
C. Why monism appears to be dead: an obituary? 10
3. An Analysis of Legal Monism: The Scope of This Book 13
A. Logical and epistemological arguments for legal monism 14
B. Descriptive and practical arguments for legal monism 16
C. Normative and moral arguments for legal monism 18
x Table of Contents
4. Legal Pluralism 42
A. Growing criticism of the monism-dualism dichotomy 42
B. Origins and development of legal pluralism 44
C. Legal pluralist varieties 45
(1) Radical legal pluralism 45
(2) Pluralism under international law 47
(3) Constitutional pluralism 48
D. Interim conclusion: pluralist deficiencies 52
5. Conclusion 53
I I . F RO M P H I L O S O P H Y TO L AW A N D P O L I T I C S
Table of Contents xi
I I I . C O N C LU S I O N
6. Conclusion 337
1. The Principal Question Answered 337
2. Findings of This Book 337
3. Monism in Our Times 340
Bibliography 343
Index 375
xvi
xv
List of Figures
Table of Cases
INTERNATIONAL COURTS
International Court of Justice
Accordance with International Law of the Unilateral Declaration of Independence in Respect of
Kosovo (Advisory Opinion) [2010] ICJ Rep. 403 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo) Preliminary
Objections [2007] ICJ Rep. 582 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206
Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo) Compensation
Owed by the Democratic Republic of the Congo to the Republic of Guinea
[2012] ICJ Rep. 324 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206
Avena and Other Mexican Nationals (Mexico v United States of America) [2004] ICJ
Rep. 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181, 196, 209
Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v France) [2008] ICJ
Rep. 177 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 164
Gabčikovo-Nagymaros Project (Hungary v Slovakia) [1996] ICJ Rep. 7 . . . . . . . . . . . . . . . . . . . . . . 178
Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt (Advisory
Opinion) [1980] ICJ Rep. 73 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39, 206
Jurisdictional Immunities of the State (Germany v Italy; Greece Intervening) [2012] ICJ Rep. 99 . . . . 176
LaGrand (Germany v United States of America) [2001] ICJ Rep. 466 . . . . . . . . . . . . . . . 183, 206, 326
Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria; Equatorial
Guinea Intervening) [2002] ICJ Rep. 303 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181
Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West
Africa) Notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion)
[1971] ICJ Rep. 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep. 226 . . . . . . . . 117
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of
America), Jurisdiction and Admissibility [1984] ICJ Rep. 392 . . . . . . . . . . . . . . . . . . . . . . . . . 190
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States)
[1986] ICJ Reports 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
North Sea Continental Shelf Cases (Germany v Denmark; Germany v the Netherlands)
[1969] ICJ Reports 3����������������������������������������������������������������������������������������������������������������� 117
Nuclear Tests (Australia v France) [1974] ICJ Rep. 253 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion)
[1949] ICJ Rep. 174 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39, 191
Request for Interpretation of the Judgment of 31 March 2004 in the Case Concerning Avena and
Other Mexican Nationals (Mexico v United States of America) (Mexico v United States of
America) [2009] ICJ Rep. 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201
Reservations to the Convention on Genocide (Advisory Opinion) [1951] ICJ Rep. 15 . . . . . . . . . . . . . 184
General Court
Joined Cases T-24/93 to T-26/03 and T-28/93 Compagnie maritime belge [1996]
ECR II-1201 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 216
Joined Cases T-27/03, T-46/03, T-58/03, T-79/03, T-80/03, T-97/03, and T-98/03
SP SpA et al. v Commission [2007] ECR II-1357 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 282
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This “forest Ambòhimànga” was the home of A TANÀLA
Ihòvana, the Tanàla chieftainess of the tribe of the CHIEFTAINESS
surrounding district, who, with her husband, was most
kind and friendly, and I believe a sincere Christian. She was a
remarkably stout old lady, getting grey, and a woman of considerable
ability and force of character. On special occasions, when the
Malagasy nobles and tributary chiefs were summoned up to the
capital, Ihòvana would appear in the public assembly, and with
làmba girded round her and spear in hand, would give assurances of
loyalty and obedience to Queen Rànavàlona, and say “she was not a
woman, but a man,” and would fight, if need be, at the head of her
people in defence of their sovereign.
The situation of this place is exceedingly pleasant, on a hill about
two hundred feet above the river flowing to the east and north.
Around it are hills covered with bamboo, while to the lines of hill, the
edges of the upper plateau are dark with forest. Here we and our
bearers were glad to rest for a couple of days, including a Sunday,
during which we were glad to find that these northern Tanàla,
through Christian teaching and Ihòvana’s influence, had made
wonderful advances compared with those farther south. There was a
congregation of about three hundred, a school of about as many
children, and nine village congregations connected with the central
church here.
On the Monday morning, on leaving Ambòhimànga, we had to
cross the river at the foot of the hill, and this made the thirtieth time
we had to be ferried across a river with all our men and property, and
glad we were that it was the last. A description of our water
conveyances would include bamboo rafts, canoes great and small,
especially the latter, canoes with one end rotted away or broken off,
and stuffed with clay, and craft so small that they seemed rather
fitted for children’s playthings than for business. The forest became
thinner as we travelled to the north-west, and this was due to the
custom of the Tanàla, who cut down the woods and sow the rice in
the ashes of the trees which have been burnt; for the people do not
plant much in one place, but remove their village to another spot
after getting a crop or two. This morning we lost the traveller’s tree,
which does not grow at heights much above two thousand feet
above the sea; and in the afternoon we also lost sight of the graceful
bamboo.
The following morning brought us to steep ascents of nine
hundred and fifty feet, of four hundred and twenty, and then of six
hundred feet successively, the last bringing us to Ivòhitràmbo (lofty
town), well named, for it has a most elevated situation and higher
than a good deal of the interior table-land to the west. I had noticed
all the previous afternoon that on the very summit of the highest
ground to the north was a lofty cone of rock. Perched upon this like
an eagle’s nest was part of the village, the rest of the houses being a
hundred and forty feet lower. The summit was forty-seven hundred
and fifty feet above the sea; we were now on the high land of the
interior and had come up twenty-four hundred and fifty feet since we
breakfasted. As may be supposed, the view was most extensive; the
plains of North Bétsiléo were not far distant, and soon we came to
the long bare rolling downs of the central provinces. Uninteresting as
these generally appear after four or five months without rain, they
looked home-like, and the keen air seemed bracing and invigorating.
We began to see rice-fields again and the scattered round vàla of
the Bétsiléo. We had got into the country of a different tribe of
people, with different houses, speech and customs. At the village
where we stopped for the night was a good timber house, with
elaborately carved central pillars, and we began to see again the
carved memorial posts, which had so much interested us on our
journey south.
We noticed again the peculiar tombs of the Bétsiléo; PECULIAR
these, which consist of a large square of stones, are TOMBS
not, as in Imèrina, the real burial-places; for the actual tomb is often
twenty feet below the ground, a stone chamber, to which access is
gained by a long inclined passage opening out at a distance of
eighty or a hundred feet from the tomb.
And now, as we reached the oft-trodden route between
Antanànarìvo and Fianàrantsòa, this record may come to a close.
We arrived safely at the capital on 5th August, having been away
nearly eleven weeks, and having travelled by palanquin, on foot, and
in canoes, more than nine hundred miles.
[30] These fireflies are not seen in the interior FIREFLIES
except in two or three localities, where portions of
the original forest still cover the mountains on which old towns
were built. I have seen them at Vòhilèna, a hill about fifteen
hundred feet high, near the valley of the Mànanàra river, in North
Imèrina.
CHAPTER XXII
T O S À K A L À VA L A N D A N D T H E N O R T H - W E S T
A
S the contents of former chapters in this book show, I was able
on various occasions during the first few years of residence in
Madagascar to make journeys in different directions: from the
east coast to the interior; from Imèrina to Antsihànaka; from Imèrina
again to Bétsiléo and from thence to the south-east, visiting the
Tanàla, the Taimòro, and other tribes in that part of the island, not to
mention shorter journeys in the central province itself, to Itàsy and
other places. But the north-west of the country and the districts
occupied by the Sàkalàva people were still unknown to me, so I was
glad when in 1877 there came the opportunity of traversing this
portion of the great island.
For a long time past Tamatave had been—as it still is—the most
frequented port of Madagascar, but the western ports, from their
proximity to South Africa, were sure to increase in importance. Not
very long before the above-mentioned date, the British India Steam
Navigation Company had begun a service of steamers from Aden to
Mozambique, touching at Mojangà, on the north-west coast, both on
the outward and the return journeys. This appeared to give
Europeans living here a good opportunity of reaching England,
avoiding the unpleasant experience of the “bullocker” (see Chapter
II.), between Tamatave and Port Louis, and taking a mail steamer
direct from Madagascar. As we were leaving this country for Europe
in September 1877, we determined to take this new route, which,
although a little longer than that by Tamatave, was far less difficult,
besides being partly by canoes, and the last day or two by a dhow,
thus giving a pleasant variety to the journey. Our party consisted of
seven, including my wife and self and three children—Willie, aged
six; May, aged three, and a baby girl of ten months—Frank Briggs,
about the same age as our boy, whom we were taking home (his
father joined us a day or two later), and my former fellow-traveller, Mr
Louis Street. I ought also to include a Mozambique nurse, one of
those African slaves recently set free, in accordance with an
agreement made between the English and the Malagasy
governments.
We left Antanànarìvo on Thursday afternoon, 13th September, a
large number of our missionary friends accompanying us for a
distance out of the city, in fact as far as the banks of the Ikòpa, along
which our route lay for several miles. Here one could not but be
again impressed with the importance of these river banks in
preserving the rice-fields from being flooded, and by the good work
done by the old kings of Imèrina in embanking the river and thus
turning marsh and bog into fruitful fields. Stopping at the L.M.S.
mission station of Ambòhidratrìmo for the first night of our journey,
we reached the station of Fihàonana in Vònizòngo on the second
day, putting up at the manse, although the minister (Rev. T. T.
Matthews) and his family were away from home. A short half-day’s
ride brought us to a third mission station, that at Fierènana, where
we had a Sunday’s rest before setting out on the unknown and
principal portion of our journey. We stayed in the house which, a year
or two before then, I had marked out for our friends, and recalled
how I had taught Mrs Stribling to lay bricks, to bond together the
corners of the walls, to manage the chimney breasts, etc., so that
she became quite proficient and was able to teach the native
workmen bricklaying, which was then to them an unknown art.
On Monday morning we fairly started on our journey ATTRACTIONS OF
away from mission stations and Europeans. Two A MARKET
hours’ ride brought us to a large market where hundreds of people
were assembled. We were set down and, before we knew what our
men were about, were left almost without a bearer, it being too great
a temptation for our fellows not to go into the thick of a market; and it
was some little time before we could get hold of them to carry us into
the village near the place. All this day’s journey was up a long wide
valley enclosed by lines of hills, which gradually approached as we
proceeded; and our evening halt was in a village covered with a
layer of finely powdered cow-dung, although the village chapel, our
usual inn on such journeys, provided a fairly comfortable resting-
place for the night.
Outside this village the following morning we passed a shoe—or
rather sandal—market, with scores of pairs of rough bullock-hide
sandals for sale. I noticed also that everyone we passed carried a
pair fastened to his or her burdens. Although we had to go up and, of
course, down again, a long ascent, the route was less difficult and
fatiguing than are those we often traversed in Imèrina, and far less
so than the roads to the eastern coast through the forest. The
increasing temperature told us that we were getting to a lower level;
indeed all the western side of Madagascar is hotter than the eastern
side, as it is deprived of the cool south-east trade-wind from the
Indian Ocean. At the village where we stopped for the night, all the
dwelling-houses were made of the gigantic bamboo-like grass called
bàraràta, although the school church which served us for a lodging
was of clay. The place had a double entrance gateway, one of them
being a low narrow tunnel; and like most of these villages had a
great quantity of cattle brought into it, for security every evening. In
consequence, the whole place was covered with a foot or two of
manure; and it was here that our friend, Mr Grainge, stopping for the
night the previous year, had an experience which I will give in his
own words.
C
ROCODILES are not the only reptiles to be seen in the river,
for we also saw many large tortoises. They were chiefly of the
genus Pyxis, the Geometric or Box tortoise, having the
carapace divided into large hexagons beautifully marked, and were
basking in the sun on small spits of sand rising just above the
surface of the water. A carapace which I afterwards procured on the
coast was about eighteen inches long. Two other species are also
found in Madagascar, named respectively, Testudo geometria and
Testudo radiata.
In former times the lakes and marshes of the island were inhabited
by an immense species of tortoise, whose remains have been found
together with those of the gigantic birds (Æpyornis), the
hippopotamus and the great extinct lemurs, all of which were no
doubt contemporaneous, lasting until the arrival of man on the
scene. But although extinct on the mainland of Madagascar, they
seem to have survived on the Mascarene group of Mauritius,
Réunion and Rodriguez until a very recent date, and they are still
living in the little island of Aldabra, which is about two hundred and
sixty miles north-west of Cape Ambro. There are two living examples
of these huge creatures in the Regent’s Park Gardens. The male
tortoise, which is much the larger of the two, is five feet five inches in
length, and five feet nine inches in breadth, broader, in fact, than it is
long. It weighs about eight hundred pounds, and is believed to be
able to carry a ton weight on its back. It is now at least a hundred
and fifty years old, but is still young and is likely to grow to a much
greater size. From the geometric-shaped plates of its carapace, it
seems to be allied to the geometric tortoise, still plentiful in
Madagascar, as we have just seen. Until lately, it was supposed that