ABSTRACT
‘The king can do no wrong’ remains one of the most fundamental yet misunderstood tenets of the common law tradition. Confusion over the phrase’s historical origins and differing meanings has had serious consequences, making it easier for the state to escape liability for the harm caused to individuals by governmental officials or institutions.
This paper is a draft Introduction to the first dedicated monograph on the topic, in which I trace the historical evolution of ‘the king can do no wrong’ in constitutional and public law to shed new light on our current understanding of crown liability. In the book, the different meanings conveyed by the phrase in the common law world are clarified; the contradictions between them revealed. Adopting a historical constitutional approach, the book delves deep into traditional legal sources – from the late Middle Ages onward – to develop an intellectual history of this key legal idea. It explains the mutation from ‘the king can do no wrong’ to ‘the crown can do no wrong’ at the end of the nineteenth century, analyzing the resulting departure from core tenets of the constitutional arrangement of the seventeenth century. The study of the evolution of ‘the king can do no wrong’ in English legal thinking, mirrored in Canada, is complemented by a comparative analysis of the idea in Australia, Ireland, and the United States, where its relationship with the concept of sovereign immunity is scrutinized.
Fortin, Marie-France, Introduction to The King Can Do No Wrong – Constitutional Fundamentals, Common Law History, and Crown Liability (June 16, 2023). Marie-France Fortin, The King Can Do No Wrong – Constitutional Fundamentals, Common Law History, and Crown Liability, Oxford University Press, 2024, ISBN 9780198886914.
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