But the naturalist refused to accept this criticism. They argued that no culture approves or encourage wanton killing of fellow human beings. No culture encourages suicides, rape, cheating, stealing, and cruelty to children e.t.c. as virtues. These are the fundamental principles of morality and of the law of nature. So, they are common and the same to al culture all over the world. It is therefore not a question of different moralities but variation in the same universal morality founded on the common law of nature, argued Omoregbe.
Legal positive was not spared of these inadequacies. Hart, we have said earlier, presented a sophisticated version of legal positivism, yet his sophisticated a remarkable improvement on those of Austin and Kelsen, still betrays the inherent weakness of legal positivism. Legal positivism however has been rejecting in two very different forms. One of these is expressed most clearly in classical theories of natural law. “That there are certain principle of human conduct, awaiting discovery by human conduct, and human reason with which man made law must conform if it to be valid”. The other form is the Naturalist viewpoint that a law is valid depending on their affinity with natural law. Its badness or goodness depends whether it was a deviation of natural law.
R.M. Dworkin attacked the positivists for seeing law as a system of rules. For Dworkin, law consists of other standards as well as rules. It is impossible to maintain a distinction between what the law is and what morally speaking it ought to be.
According to Omoregbe, the separation of law from morally advanced by legal positivism, if put into effect, leads to tyranny, inhumanity and cruelty, it is a fact that legal positivism prepared the way for Nazism. German jurists detest natural law doctrine as unscientific and profess adherence to legal positivism. But the experience of the atrocities and inhumanity of the Nazi regime opened their eyes to see the inherent weakness of legal positivism during Nazi regime. He was converted by this experience and so his appeal to other men discards the doctrine of the separation of law and morals has the special poignancy of a recantation.
After the war, we were told that German courts returned to the natural law doctrine, applied its principles to nullify the moral laws of the Nazi regime.
Again, the legal positivists especially Hart, insists on separating what law actually is from the question as what it ought to be. For the positivist, law should be taken as it de facto is, and that the question of what it ought to be does not arise. Law is what de facto is and that is all. The legal positivist said this and never made any attempt to draw a distinction between the spirits of the law for the whole of law. The spirit of the law is in fact what the law ought to be and we can never understand law if we exclude the spirit of law.
This distinction between the letter of the law and the spirit of the law holds well in regard to both law in general as well as particular laws or legal system. It helps us to see law in a dynamic way rather than the static way of seeing law applied in the doctrine legal positivism.
Legal positivism is inadequate in this sense because it has been unable to account for the ultimate justification of the obligation to obey law. More so, Kelsen's basic norm and Hart's rule of recognition could not account for the ultimate foundation of law or for its obligatory force.
The command theorist's narrow concept of law made them think that it is only obedience and sanction that law effective and practicable. In saying this, they failed to realize that there are law-conferring power, which are not command and do not attract sanction in case of default. For instance, law a instructing a public institution to give certain amenities to a certain community over a period of time. If this public corporation fails to do that same, there is no stated sanction against them. In other words, we cannot say that these command theory of law attracts sanction in case of default. It is also wrong for the positivists to see obedience to law in the light of sanction. This line of thought is in a way of saying that there are no other considerations such as the realization of one's obligation and conscience that make men to behave in accordance with their social obligation.
Finally, legal positivists in the attempt to make law look scientific fell into a ditch. Their initial attempt to remove passion and emotion from law did not succeed. Their move to remove morality from law proved to be an impossible task and as a result of this development we cannot but accept law and morality as two edged sword and that any attempt to take law only as it actually exist and refuse to ask what it ought to be is to exclude the possibility of correction, harmony, mutual co-operation and improvement of our legal system.
