John Austin's Theory Of Legal Positivism

INTRODUCTION
John Austin is considered by most to be the creator of the school of thought known as positivist school.
Austin's famous formulation of what could be called the “dogma” of legal positivism is as follows:
The existence of law is one thing; its merit or demerit is another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry. A law, which actually exists, is a law, though we happen to dislike it, or though it vary from the text, by which we regulate our approbation and disapprobation.
He was the first writer to approach the theory of law analytically (as contrasted with approaches to law more grounded in history or sociology, or arguments about law that were

According to some critics of positivism, mere enactment of a law does not mean society should accept all such laws as legitimate and binding. In Nazi Germany, Adolph Hitler’s regime brutally stripped Jews of any governmental protection through a labyrinth of legal codes. Legal positivism sometimes emasculates the social function of law by preventing it from serving human needs. Thus, these critics conclude that a written law ceases to be legitimate when it is divorced from the principles of fairness, justice and

In a balanced constitutional structure, where there is no apex of sovereign it would appear that many laws may not strictly distill to general commands backed by coercion. Take, for example, the US Supreme Court striking down a federal statute passed by Congress. Here, the subject of the Court’s ‘command’, as it were, is the legislature, which stands alongside the judiciary not as a subordinate but as a constitutional