Government Responsibility In Tort V

EDWIN M. BORCHARD, Yale Law School

Abstract

Having examined the development of the postulate that the king can do no wrong, as a basis for denying tort responsibility, it now becomes necessary to examine the alleged justification both for procedural and substantive immunity found in the argument that the State cannot be bound by law. Perhaps the most sterile, yet superficially logical of the several reasons advanced for the State's immunity from suit is that "there can be no legal right as against the authority that makes the law on which the right depends," an authority which "is itself superior to" law. The argument in explanation of this thesis is embodied in an opinion by Mr. Justice Holmes, speaking for the United States Supreme Court, in the case of Kawananaho Polyblan, 205 US. 349, 353, 27 Sup. Ct. 526, 527 (1907).