Who Is the Real Sovereign? Revisiting John Austin’s Command Theory in Modern Governance

By Steven Masiga

The debate surrounding sovereignty, executive authority, and constitutional power remains one of the most enduring discussions in legal and political philosophy. From monarchies and military establishments to modern constitutional democracies, societies continue to wrestle with one fundamental question: Who is the true sovereign?

The English legal philosopher John Austin, who lived between 1790 and 1859, attempted to answer this question through his famous Command Theory of Law. Austin, one of the foundational proponents of analytical jurisprudence, developed his ideas in his seminal work The Province of Jurisprudence Determined. In this text, he described a sovereign as a superior human authority who receives habitual obedience from the majority of society yet is not himself in the habit of obeying anyone else. Austin famously described such a figure as the “uncommanded commander.”

According to Austin, law is essentially the command of the sovereign backed by sanctions. The sovereign issues commands to society, and obedience is secured because disobedience attracts punishment or undesirable consequences. This understanding of law and authority has profoundly shaped modern legal thought and continues to influence debates on state power today.

In Uganda and many other African states, traces of Austin’s theory can still be observed in practical governance structures. The clearest approximation of Austin’s sovereign may perhaps be seen within military establishments. Soldiers are trained to obey commands without questioning the superior authority issuing them. Military discipline is rooted in hierarchy, sanctions, and obedience. A military commander therefore resembles Austin’s concept of a sovereign authority whose directives are expected to be implemented without resistance.

Traditional institutions also offer important illustrations of sovereignty and authority. In the Kingdom of Buganda, thousands of loyal subjects regularly gather to celebrate the birthday of the Kabaka, demonstrating allegiance, loyalty, and cultural obedience to the monarch. Similar reverence is often witnessed toward the Umukuka of the Bamasaaba in Bugisu. These examples reveal how authority can derive not merely from written constitutions but also from history, culture, and collective social recognition.

However, an important legal and political question arises: do such examples truly satisfy Austin’s requirement of “habitual obedience from the bulk of society”? This remains a critical assignment for legal scholars and political theorists.

The modern presidency arguably provides the strongest contemporary example of Austin’s sovereign. A liberal interpretation of Austin’s theory suggests that the president possesses many of the characteristics Austin envisioned. Presidents command the armed forces, supervise the executive branch, assent to legislation, appoint public officials, and influence national policy. In many developing states, the presidency remains the center of political gravity and state authority.

Yet a conservative reading of Austin exposes weaknesses in the theory. No ruler commands absolute obedience from every member of society. Resistance is a permanent feature of human existence. Even divine authority has historically encountered rebellion and disbelief. Religious traditions narrate how Lucifer rebelled against God, while in society many individuals reject religious authority altogether. In Uganda itself, there exist atheists, traditional spiritual practitioners, witches, and witch doctors who operate outside mainstream religious commands and norms. If even divine authority encounters dissent, how then can mortal political leaders expect universal obedience?

Austin further argued that sanctions are essential for obedience. The citizen obeys because failure to comply carries the possibility of punishment. Indeed, modern states maintain prisons, police forces, courts martial, fines, and administrative penalties to enforce compliance with law.

However, later legal scholars criticized Austin for reducing law entirely to commands backed by sanctions. Critics argued that human beings obey laws for many reasons beyond fear of punishment. Sympathy, patriotism, morality, religion, culture, and social acceptance also induce obedience. Many citizens obey traffic laws, pay taxes, or respect institutions not solely because they fear sanctions but because they recognize the legitimacy of the legal system.

Austin was also criticized for undermining other important sources of law such as customary law and judge-made law. In many African societies, customary norms existed long before colonial constitutions or modern legislatures emerged. Likewise, judicial decisions continuously shape and develop legal principles independent of direct executive commands.

To further understand sovereignty in modern states, one must examine the doctrine of separation of powers. Most constitutions, including the Constitution of Uganda, distribute state authority among the executive, legislature, and judiciary. Articles 79(1)(2) and 91 of the Ugandan Constitution, for example, demonstrate that legislative authority is shared between Parliament and the President. Parliament passes bills while the President assents to them into law.

Executive power, however, is rarely shared to the same extent. The executive branch often exercises dominant influence over national administration, security agencies, budgeting, diplomacy, and policy implementation.

While studying at the Law Development Centre many years ago, the late Justice George Kanyeihamba reportedly argued that President Yoweri Museveni could theoretically dispense with both the legislature and judiciary and the country would still continue functioning. At the time, this may have sounded controversial, but a deeper examination of colonial constitutional history gives some weight to the argument.

During the formative years of colonial administration, many territories were governed through Orders in Council issued without elected parliaments. Colonial governors concentrated legislative, executive, and sometimes judicial authority within themselves. In effect, the governor became the state, and the state became the governor. Similar notions emerged in European monarchies where some kings openly declared, “I am the state.”

This raises another critical constitutional question: are the three organs of government truly coordinate and equal in practical terms?

The observations of the American legal realist Justice Oliver Wendell Holmes Jr. provide useful insight. Holmes is often associated with the view that institutions without control over financial resources or coercive instruments ultimately depend on those who possess them. Parliament and the judiciary may pronounce laws and judgments, but neither institution commands military units of its own. Their implementation frequently depends on the executive branch.

Consequently, one may argue that the president most closely resembles Austin’s sovereign in modern constitutional states. Absolute monarchies historically represented the purest examples of sovereignty as envisioned by Austin. In countries such as Swaziland in earlier decades, or historically in imperial Japan, monarchs exercised immense centralized authority. Former United States President Richard Nixon was also at times accused by critics of viewing the presidency in sovereign terms.

The recent public debates surrounding sovereignty legislation in Uganda further demonstrate widespread misunderstanding of jurisprudential concepts. Many reactions emerge without sufficient appreciation of legal philosophy or the distinction between positive law and natural law.

Positive law refers to law as enacted by legitimate state authority regardless of whether citizens morally agree with it. The famous Latin maxim Dura lex sed lex — “the law is harsh, but it is the law” — captures this reality. Citizens may disagree with legislation politically, morally, or emotionally, yet once enacted through constitutional procedures, such law remains binding.

Ultimately, Austin’s command theory continues to provoke important questions about power, obedience, legitimacy, and constitutionalism. Though modern democracies have evolved beyond simplistic notions of absolute sovereignty, executive authority remains central in many states, especially in Africa. The president, backed by the military, public administration, and state machinery, still emerges as the closest contemporary approximation of Austin’s “uncommanded commander.”

Yet constitutionalism simultaneously reminds us that even the most powerful rulers operate within legal, political, and social limitations. No authority is entirely absolute. Sovereignty in the modern age therefore remains not merely a legal concept but an ongoing negotiation between power, legitimacy, obedience, and resistance.

The writer is a legal scholar from Bugisu region

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