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UC Law Journal

Jonathan Turley

Abstract

Scholars and judges have long debated the extent to which international law-treaties, agreements, and customs among nations- should play a role in disputes over the application of domestic (or municipal) laws. Proponents of dualism would treat international laws as subordinate to any applicable municipal legal authority, while advocates of monism view the two sources of law as equally capable of controlling any given controversy. Dualism is traditionally linked to a narrow, "horizontal" definition of public international law that confines its authority to the realm of nation-states, excluding any "vertical" conception of international law as operating for the benefit of individuals. Viewed in this way, dualism is an exogenous value that follows from a narrow outlook on international law.

In this Article, Professor Turley suggests an alternative, endogenous basis for dualism: Rather than evolving as a byproduct of horizontal understandings of international law, he argues, dualism derives from the inherent pluralistic values of Madisonian democracy. Courts adopt dualistic interpretative methods in order to protect the Madisonian system's legitimacy from the challenge presented by extrinsic legal sources-laws that have not undergone the test of the deliberative process, with its checks on legislative power and factionalism. To discern the roots of dualistic values, Professor Turley examines the tension between dualism and monism in the context of judicial decisions under two canons of statutory construction: the presumption in favor of international law and the presumption against extraterritoriality. He explains that courts originally applied these canons, as well as other rules like the last-in-time and political question doctrines, to limit the judicial role in cases along the borderland of international and municipal law. Concerned with reducing institutional tensions and preserving the unelected judiciary's legitimacy within the tripartite system, courts favored minimalist approaches to statutory construction and deferred to one of the political branches when confronted with potential interbranch conflicts or international controversy. These institutional legitimacy concerns of the past found their expression in dualistic uses of the presumptions.

Today, however, source conflicts are increasingly common and many disputes have transnational dimensions. Professor Turley shows that modern courts cannot avoid playing a significant role in international legisprudence. Drawing on economic and normative theories of legislation, he argues that the canons have outlived their usefulness and may disserve the Madisonian system either by allowing special interest groups to exploit its weaknesses or by concealing judicial bias and outcome-selection. Under a realistic view of the modern judicial role in guarding the legitimacy of the Madisonian system, Professor Turley recommends that courts directly face transnational issues that arise in disputes. Judges should rely on international law (among other sources) in the interpretation of ambiguous statutes to best fulfill their public-regarding purposes. Consistent with dualism and legislative supremacy, however, they may not apply extrinsic sources that conflict with explicit congressional commands. Under this new view of dualism and institutional legitimacy, Professor Turley concludes, courts can serve a valuable function in resolving conflicts between municipal and international sources, while protecting the proceduralistic values of Madisonian democracy.

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