John Austin (1790–1859), one of the foundational scholars of analytical jurisprudence, in his seminal work The Province of Jurisprudence Determined, defined sovereignty as the authority of a person or institution that is not in the habit of obeying others, but is habitually obeyed. He described such a figure as the “uncommanded commander.”
Austin’s central contribution to legal theory was the idea of the “command of the sovereign,” where law is seen as a command backed by sanctions issued by a superior authority, who receives habitual obedience from society.
In many African contexts, including Uganda, aspects of this theory can be observed in different institutions. For example, in the military, orders are expected to be followed without question. Similarly, cultural institutions such as the Kabaka of Buganda or the Umukuka of Bugisu command deep loyalty and mass participation during public ceremonies, reflecting strong social obedience.
However, whether these examples fully satisfy Austin’s conception of sovereignty remains a subject for legal and political scholars. The question arises: can a president be considered the “uncommanded commander” who obeys no one and is habitually obeyed by the majority?
From a liberal interpretation of Austin’s theory, the President of a republic may appear to fit this model, given the extensive executive authority and control over state institutions. However, a stricter interpretation suggests that no single actor fully commands absolute obedience in modern constitutional systems.
Even in the natural order, absolute obedience is difficult to establish. Religious and philosophical traditions show that even divine authority is subject to varying levels of acceptance and resistance among followers. This illustrates that obedience is never entirely uniform or universal.
The theory of command also assumes that obedience is driven primarily by sanctions. However, later scholars criticized Austin for overlooking other sources of compliance, such as moral obligation, fear, tradition, and social sympathy.
A deeper analysis of obedience requires consideration of the doctrine of separation of powers. In constitutional systems such as Uganda, Kenya, and Malawi, state authority is distributed among different organs. For instance, in Uganda, legislative power is shared between Parliament and the Executive under Articles 79(1) and 91 of the Constitution.
In practice, executive power remains the most centralized form of authority, while legislative and judicial powers are more constrained by institutional frameworks. This has led some scholars to argue that the Executive often dominates the state structure.
During my studies at the Law Development Centre, Professor Kanyeihamba once observed that a president could, in extreme circumstances, function even without a fully active legislature or judiciary, with limited disruption to state continuity. While controversial, such views highlight the strength of executive authority in certain political contexts.
Historical examples from colonial administration further illustrate this concentration of power. Orders-in-Council during colonial rule were enacted without elected parliaments, with governors exercising full authority over legislative, executive, and judicial functions. Similarly, absolute monarchies in different parts of the world concentrated sovereignty in a single ruler.
Justice Oliver Wendell Holmes, a leading figure in legal realism, emphasized that legislative bodies often lack independent coercive power, such as control over armed forces or financial enforcement mechanisms. This further raises questions about the practical limits of institutional power.
From this perspective, the President of a modern state may be viewed as the closest practical approximation of Austin’s sovereign, though not in absolute terms. Even in historical cases of strong monarchies, resistance and limitations have always existed.
Ultimately, sovereignty in contemporary legal systems is more complex than a single command structure. While positive law represents the command of the state, it operates within constitutional limits and competing sources of authority.
As the Latin maxim states, Dura lex sed lex—the law is harsh, but it is the law. Positive law remains binding whether or not it is universally accepted, as long as it is enacted by legitimate authority.
The writer is a legal scholar from the Bugisu region.
