Alex F. Sarch (University of Michigan at Ann Arbor) has posted Incorporating Raz's Insights About Incorporation on SSRN. Here is the abstract:
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In a recent paper entitled ‘Incorporation by Law’, Raz offers several novel arguments against what he calls the Incorporation Thesis. This is roughly the claim that it’s possible for morality to be ‘incorporated’ into the law through rules, customs or practices that direct legal officials to apply moral tests in reaching decisions about what the law requires in particular cases. What I aim to argue in this paper is that Raz’s arguments against the Incorporation Thesis are unconvincing.
In particular, one of the main goals of this paper is to show that Raz’s arguments provide no reason to doubt the broader view of the law known as Inclusive Legal Positivism. According to this view, it is possible for moral norms or considerations to play a part in determining what the law requires, but only in virtue of certain social facts obtaining – that is, only if the moral norms or considerations in question have the right kind of social backing. What makes Raz’s arguments against the Incorporation Thesis so interesting to scholars of jurisprudence is that they promise to make progress in the beleaguered debate between Inclusive Legal Positivism and its two main rivals: Exclusive Legal Positivism and Natural Law Theory. Raz’s arguments promise to provide an independent basis on which to reject Inclusive Legal Positivism, thus allowing jurisprudence scholars to take one of the main options off the table and focus their attention on the two remaining views. However, closer inspection reveals the promise of Raz’s arguments to be more illusory than real. In fact, Raz’s arguments against the Incorporation Thesis pose no genuine threat to Inclusive Legal Positivism.
This unusually sophisticated student paper is highly recommended.