Sovereign immunity

From dKosopedia

Jump to: navigation, search

Sovereign immunity or crown immunity is a type of immunity that, in common law jurisdictions traces its origins from early English law. Generally speaking it is the doctrine that the sovereign or government cannot commit a legal wrong and is immune from civil suit or criminal prosecution. In many cases, the government has waived this immunity to allow for suits; in some cases, an individual, such as an attorney general, may technically appear as defendant on the government's behalf.

Sovereign immunity in republican democracies

The doctrine of sovereign immunity is used in some republican democracies such as the United States and India, mostly those with roots in the English Common law. Because the legal systems in these countries devolved from English Common Law, the concept of sovereign immunity is retained. In these systems, governments, agents, or officials of the government may enjoy immunity for various acts, usually limited to acts that emanate from the function of government, and not those acts that would normally come within the ambit of the activities of private citizens such as contractual relations or liability for negligence.

In the United States, most U.S. states have waived their sovereign immunity by statute for particular narrow classes of cases. These statutes, called tort claims acts, allow individuals to sue the U.S. state government and officials of the state government for constitutional violations or negligent acts. In many cases, these statutes protect the employee, or "agent", of the state against suit unless the agent acted with malice or was grossly negligent. Because it is hard to prove that a government official acted with malicious intent, most lawsuits against individual police officers, for example, are dismissed. State liability for constitutional violations is often limited to cases where the damage is caused by a specific policy of the government, but sometimes permits vicarious liability (liability without fault as a result of an employee's negligence) to allow injured person to sue the state itself for the injury caused by the government official for permitted suits based on negligence other than constitutional violations. However, most states limit the amount of damages an individual can recover from the state, and often individual state employees as well (i.e. awards are capped at $100,000 or $200,000). Sometimes suits against the state for civil damages are also reserved to special courts or tried without juries.

In constitutional parlance, the sovereign immunity of the United States is simply inferred by judicial fiat, while the sovereign immunity of individual states is drawn primarily from the Article III enunciation of the judicial power as modified by the 11th Amendment which is far more broad in impact than its language would imply.

Furthermore, the United States Supreme Court has enunciated an abrogation doctrine, which permits the U.S. Congress to remove the sovereign immunity of the states from generally applicable federal laws pursuant to its Fourteenth Amendment enforcement powers.

In a constitutional monarchy such as the United Kingdom, Canada or Sweden, the sovereign is the historical origin of the authority which creates the courts and thus the courts have no power to compel the sovereign, their agents and/or servants to be bound by the courts as they were created by the sovereign for the protection of his or her subjects.

France, in contrast, and Germany both of which are the primary sources of law in civil law countries approach the issue of "public law" (i.e. government liability) differently. In civil law countries with republican traditions, the norm is "rule of law" which means that even the goverment is compelled to obey all of the laws, subject to specific immunities created by law or the constitution. These nations often have special courts to handle public law questions. For example, in France the Council of State handles most public law questions and automatically assigns a publicly paid attorney to handle both the government's case and the complaining party's case.

Critique of sovereign immunity

Sovereign immunity may be questioned in relation to the sovereign personally (i.e. prosecuting the crown for a crime); no one should be above the law in a society that recognizes the rule of law. Even the accusation of criminal fault against a monarch personally would most certainly precipitate a constitutional crisis calling into question the legitimacy of the legislative system, as in British parliamentary systems, since the Parliament is considered a part of the Crown, causing it to function properly.

Other aspects of this type of immunity have also been called into question, as governments may use it to prevent a finding of liability for acts that might otherwise be actionable if performed by private citizens. When the monarch personally, or through an agent, enters into a contract for goods or services, should not the person or company who provides such services receive due compensation or be able to sue for breach of contract? Should not the monarch be bound by principles of contract law like all others? However, it seems reasonable that governments may seek to be immune for prosecution or liability from government acts that are part and parcel of function of government which are created to benefit society as a whole and are thus outside the realm of private law.

While the 11th Amendment clearly establishes a state forum for certain actions against state governments, the notion that it also provides immunity to states from generally applicable federal laws (such as labor laws and copyright laws) which by their terms include governments as potentially liable parties, is largely a controversial innovation of the Rehnquist Supreme Court.

See also

Personal tools