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Difficulty: Very hardPoints of Disagreement

Passage A
The founders of the republic universally understood the "law of nations" to be an integral component of the general common law. Modern critics who insist that customary international law (CIL) requires statutory implementation to be domestically enforceable ignore this historical bedrock. While it is true that CIL lacks the formal electoral pedigree of a domestic statute, it is legitimately derived from the consistent practices of states acting out of a sense of legal obligation. Unless the national legislature has explicitly repudiated a specific international norm, domestic courts have a constitutional duty to recognize and apply established CIL as federal law. This judicial application does not usurp legislative prerogative; rather, it fulfills the foundational assumption that the state operates within a binding global legal framework.

Passage B
Advocates for the automatic incorporation of customary international law (CIL) into federal common law overlook the structural imperatives of democratic governance. It is true that early jurists respected the "law of nations" as part of the common law, but they operated in a jurisprudential era predating the modern positive state, wherein law was viewed as an abstract truth to be discovered rather than a rule to be actively made. Today, democratic legitimacy demands that any rule coercively binding citizens be enacted by politically accountable representatives. CIL is forged through opaque diplomatic consensus and state practice—mechanisms entirely detached from domestic legislative processes. Consequently, while CIL unquestionably binds the state politically in the international arena, it cannot be legitimately enforced by domestic judges absent affirmative statutory codification.

Based on the two passages, the authors would be most likely to disagree over the truth of which one of the following statements?

  1. The absence of explicit legislative action regarding a norm of customary international law precludes domestic courts from enforcing that norm.Answer
  2. B
    The national legislature possesses the constitutional authority to dictate whether a specific norm of customary international law is enforceable in domestic courts.
  3. C
    The mechanisms by which customary international law is generated endow it with a degree of democratic legitimacy comparable to that of domestically enacted statutes.
  4. D
    Early jurists and founders of the republic viewed the "law of nations" as a framework that solely governed the state's diplomatic relations rather than domestic affairs.
  5. E
    The shift toward the modern positive state has significantly altered the international mechanisms through which customary international law is formed.

Answer

The statement regarding whether the absence of explicit legislative action precludes domestic courts from enforcing a norm of customary international law.
The correct answer identifies a proposition where Passage A's author would answer 'no' and Passage B's author would answer 'yes.' Passage A states that 'Unless the national legislature has explicitly repudiated a specific international norm, domestic courts have a constitutional duty to recognize and apply' it. This means legislative silence (the absence of explicit action) does NOT prevent enforcement; rather, it mandates it. Conversely, Passage B argues that customary international law 'cannot be legitimately enforced by domestic judges absent affirmative statutory codification.' This means legislative silence DOES prevent enforcement. Therefore, they directly and unmistakably disagree on this exact point.

Step-by-Step Solution

1
Analyze Passage A's core stance on the enforcement of customary international law (CIL).
Passage A argues that domestic courts must enforce CIL unless the legislature has explicitly repudiated it.
To establish Passage A's position on the threshold for court enforcement.
2
Analyze Passage B's core stance on the enforcement of customary international law.
Passage B argues that domestic courts cannot enforce CIL unless there is affirmative statutory codification by the legislature.
To establish Passage B's position on the threshold for court enforcement.
3
Evaluate the options to find a proposition that yields a clear 'yes' from one author and a clear 'no' from the other.
Both authors agree that the legislature has ultimate authority and that CIL lacks democratic legitimacy, but they directly conflict on what domestic courts should do when the legislature is entirely silent.
A valid point of disagreement requires mutually exclusive stances.
4
Test the selected proposition against both texts.
Passage A rejects the proposition that legislative silence prevents enforcement, while Passage B affirms it.
To mathematically confirm that the correct answer represents a genuine point of mutual disagreement.

Key Concept

Points of Disagreement in Comparative Reading
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Points of Disagreement

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