Incorporationists believe that morality and law can work hand in hand along as it facilitates convergent behavior and functional society promotes and is governed by convergent behavior. I think this is interesting. So convergent behavior seems to be an accepted norm. You can remember when you were younger and Johnny's parents let him get ice cream even though you were not aloud to. Do you remember pleading and using the commonly known phrase: "but mom!!! he's doing it!" There are many variations but basically, i'm saying that people find comfort in convergent behavior. Have you ever noticed that in the halls people tend to walk on the right side? It's not a rule, but it makes getting around a lot easier. In a society, if you are unsure of what to do, you can look around and see what others are doing. Stopping at a stop sign, yielding to pedestrians, ect...but is this always good?
Let’s talk about a little something called adultery. Now that's a fun word. Some people have the moral belief that sex should be saved for marriage and should be only shared with the one you love and marry. It seems these days everyone's doing it, everywhere, some even with strangers. Haha I’m sure you know what i mean. Not only has that, but the rate of unfaithful partners been steadily increasing. Everyone's doing it right?? I even recently read an article about how it's even more common to cheat on your spouse with someone else's spouse...killing two birds with one stone eh? So as you can see, convergent behavior isn't always a plus...look at the Nazis for example. That didn't work out so well, did it?
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I think we sometimes tend to forget that incorporationism is a subset of legal positivism. Incorporationists do believe in the separability thesis (or at least claim to)- morality and the law are completely distinct.
ReplyDeleteSometimes law and morality facilitate convergent behavior- in these circumstances the law is strengthened. However, incorporationism dictates that law and morality/social norms don't necessarily have to coincide (underage drinking?).
Personally, I feel that at times the law is used to prevent convergent behavior. Without the existence of a system of incarceration, theft would become commonplace.
While I agree with Hirsh on his point of law preventing convergent behavior, it is hard to reconcile that idea when presented with the Nazi Germany case. I think the law can prevent and establish convergent behavior depending on how it is used. His example of theft is a good point, but that takes the stance that people would steal if there were no law prohibiting it.
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