However, judges are not free to decide the case as they like rather they are obliged to follow the directives of these principles. Dworkins insist that there is a legal obligation on the judge even in difficult cases to decide cases and not on description. Furthermore, Dworkin demarcated between principles and policy. To him “principles are the prepositions that describes rights, whereas policies describe goals”. In other words, we cannot equate right with a community's goal. Rights must have a certain threshold weight against collective goals in general. On this standpoint, Dworkin rejects and criticizes legal positivism and Hart's account of law as being misleading and incomplete.
FULLER'S CRITICISMS
Lon. L. Fullers in his article, positivism and fidelity to law, criticizes Hart for ignoring the internal morality of order essential for the creation of all laws. Fuller did not only criticize Hart, he attacked Austin's definition of law as violating the reality it purports or tends to describe. “Law, as something deserving loyalty, must represent a human achievement; it cannot be a simple fiat of power or a repetitive pattern discernible in the behaviour of state officials”.
Fuller attacks Hart's assumption that evil aims may have as much coherence and inner logic as good ones. He says that coherence and goodness enjoy more affinity than coherence and evil. Fuller says “when men are compelled to explain and justify their decisions, the effect will generally be to pull those decisions towards goodness by whatever standards of ultimate goodness there are”.
He did not stop there, fuller went further to argue that law is the safest refuge for man because there is no regime no matter how corrupt, perverted, that there will not be hesitant about writing cruelties, intolerance and inhumanities into law. To achieve this aim, we need not to separate law and morality; rather we must ensure they have no affinity. Fuller therefore insists that kelsen's basic norm or Hart's rule of recognition in itself has to fulfill the condition of moral goodness before it can become accepted as law. A basic law is not accepted as a law simply because it claims to be a basic law but because it is seen to be good and necessary. “All this amounts to saying that to be effective a written constitution must be accepted, at least provisionally, not just as law but as good law”.
On that note, Fuller insists that law can be seen to represent order simpliciter. Good order is law that corresponds to the demand of justice, morality or man's notion of what ought to be. So if law is considered as order, it should contain implicit morality.
INADEQUACIES OF LEGAL POSITIVISM AND NATURAL LAW THEORY
Hart, though never deny the existence of natural law, refused to accept it in its classical form with its theocratic metaphysical setting. The classified form underlying natural law is according to Hart outdated and antithetical to the general conception of nature, which constitutes the framework of modern secular thought. For the fact that natural law is part of metaphysical speculation, it does not have the validity and the tendency to command morality and obedience.
David Hume started the move to show the inadequacies of Natural Law. Natural law according to Hume consider only ought question and not facts. He challenged the naturalist for posting actions that boarder on value judgment-from which man cannot derive statement of facts. This problem makes a mess of the tenets of Natural Law. Not only that natural law is inadequate and mythical, it leads to confused thinking by not separating law from morality. This informed “Bentham's view that the non-appreciation of the role of law and its essence, was a result of the importation of alien features into it”. “Law could only be properly understand if it was treated as an autonomous field of study free from all issues of morals, religion and the like”.
Bentham still maintained that what the law is and what it ought to be are issues that belong to different area perspectives. To say whether a legal rule is valid or not, the issue of its being good or bad, just or unjust is completely irrelevant, argued Bentham. “Since these questions are concerned with the moral worth or expediency of the legal rule which remains nonetheless legal, whether good or bad.
Bentham went further to say that
The true function of jurisprudence is "censorial"
the criticism of the legal system with a view to
its improvement. For such criticism, a standard of value is required, and that can be supplies only by the principle of utility. It is the greatest happiness of the greatest number that is the measure of right or wrong.
Benedetto cross exposed another problem inherent in natural law theory. To him, there can be no law other than the product of history, for law is essentially the historical realization of economic activities. Natural law cannot be found anywhere because it is logically contradictory. We must also recognize as a fact that different peoples have different notions of moral right and wrong and that there is no uniform or universal morality all over the world. The implication is that there is no common morality, no law of nature common to all culture all over the world.
