A Historical Constitutional Approach to The King Can Do No Wrong: Revisiting Crown Liability

Abstract

This thesis traces the historical evolution of the king can do no wrong in legal thinking in order to revisit and shed new light on our current understanding of crown liability. The historical constitutional approach adopted in this thesis differs from the traditional document-based approach of legal historians and is closer to legal constitutional scholarship and the intellectual history of legal ideas. The analysis spans traditional legal sources, including the work of prominent legal authors such as Bracton, Coke, Hale, Blackstone and Dicey. The different understandings of the king can do no wrong in current legal thinking are discussed in chapter 1. Considering these understandings, a heuristic model of crown liability is developed to facilitate the analysis of the evolution of the king can do no wrong in legal thinking. The model is based on the premise that two dimensions – substantive and procedural – underpin crown liability and that these two dimensions are influenced by three notions associated with the king can do no wrong – the king’s status in relation to law, the king’s perfection and the king’s immunity from suit. The analysis of the three notions associated with the king can do no wrong in the late Middle Ages and Tudor periods (chapter 2), during the constitutional struggles of the 17th century (chapter 3) and in the 18th and 19th centuries (chapter 4) is followed at the end of each chapter by a discussion of the two dimensions of crown liability for each of the periods. In chapter 5, the evolution of the two dimensions of crown liability is analysed and their current status in legal thinking is discussed. Building on this thesis’s study, the use of the king can do no wrong as a historical basis for the crown’s absolute immunity from suit in current legal thinking is scrutinised.