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Difficulty: Very hardInferences from the Text

In the late nineteenth century, international legal scholars increasingly rejected natural law foundations in favor of legal positivism, positing that all international legal obligations derive exclusively from the explicit or implicit consent of sovereign states. This positivist turn, however, engendered a persistent theoretical conundrum regarding the formation of customary international law. By definition, a rule of customary law emerges only when a general and consistent practice among states is accompanied by *opinio juris*—the conviction that the practice in question is legally mandated.

The paradox for strict positivists is temporal: for a newly emerging rule of customary law to crystallize, the earliest states engaging in the constitutive practice must do so under the belief that the conduct is already required by international law. Yet, ex hypothesi, because the rule is only just emerging, this belief must be factually erroneous. Some legal theorists have attempted to circumvent this paradox by characterizing the initial state practice as an implicit "offer" and subsequent compliance by others as "acceptance." However, this contractarian analogy fails to account for a fundamental feature of the international system: established customary rules are routinely treated as binding upon newly independent states that had no opportunity to participate in either the putative offer or its acceptance. Consequently, strict state-consent theories remain uncomfortably reliant on either a fiction of retroactive consent or the tacit admission that certain international obligations bind sovereigns independently of their will.

Based on the passage, which one of the following can be most reasonably inferred about the earliest states whose actions contribute to the formation of a new rule of customary international law under the strict positivist framework?

  1. A
    They possess a clear intent to establish a new legal obligation that will ultimately bind newly independent states.
  2. B
    They rely upon natural law justifications for their conduct until a sufficient number of states have formalized the practice.
  3. C
    They consciously engage in a legal fiction in order to circumvent the requirement for explicit state consent.
  4. They base their actions on a premise about the status of international law that is factually incorrect at the moment they act.Answer
  5. E
    They articulate their initial behavior as a contractual offer to other sovereign entities within the international system.

Answer

The correct answer is the option stating that the earliest states base their actions on a premise about the status of international law that is factually incorrect at the moment they act.
The passage explicitly states that for a newly emerging rule of customary law to form, the earliest states engaging in the practice must believe the conduct is already legally required. However, because the rule is only just emerging, the passage explicitly notes that 'this belief must be factually erroneous.' Therefore, it is a direct logical deduction that these early states are basing their actions on a premise about the law that is technically incorrect at the time they act.

Step-by-Step Solution

1
Analyze the question stem to identify the target of the inference.
The question specifically asks for an inference regarding 'the earliest states whose actions contribute to the formation of a new rule' within the strict positivist framework.
Focusing on the exact subject of the question prevents conflating the actions of the states with the theories of the legal scholars discussed elsewhere in the passage.
2
Locate the relevant textual constraints describing these specific actors.
The passage states: 'for a newly emerging rule of customary law to crystallize, the earliest states engaging in the constitutive practice must do so under the belief that the conduct is already required by international law.'
Textual evidence is strictly required to support any valid LSAT Reading Comprehension inference.
3
Synthesize the logical consequence of the located text as provided by the author.
The author immediately follows the condition by stating: 'Yet, ex hypothesi, because the rule is only just emerging, this belief must be factually erroneous.'
Connecting the state's required belief with the author's assessment of that belief reveals the core logical paradox the passage is analyzing.
4
Evaluate the answer choices against this synthesized inference.
The option stating they base their actions on a factually incorrect premise perfectly translates the textual claim that they act on a belief that 'must be factually erroneous.'
Valid inferences must rephrase or logically combine stated facts without introducing outside knowledge or unsupported assumptions.

Key Concept

Deducing implicit logical consequences from a defined theoretical framework
Estimated Time:2m 30s
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Topics

Inferences from the Text

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