Exploring the Magna Carta and Governmental Immunity Doctrines: The View from the United States

Abstract

Credence Sol explains that Magna Carta is more honoured in the United States than in the United Kingdom as it is considered by American people as democracy’s birth certificate, especially clause 39 under which the government has to abide by the law. Yet, today, the immunity doctrine is in total contradiction with the rule of law as under, this doctrine, the government is immune from being sued. Thus, in tort law, the government cannot be sued without its consent; the only option is to sue the government in negligence and contract law. Professor Sol’s chapter focuses on:

• The history of Magna Carta in the United States.

• The history of the South Immunity Doctrine: It was not contained in the US Constitution but silently imported into US law, which means that it is difficult to hold the government to account.

• The various types of immunity.

• The different criticisms directed at the immunity doctrine: It is unfair; it is not compatible with the Constitution as the supreme law of the land; it is undemocratic—as the government is supposed to derive its power from the Constitution.

  Such a doctrine would be unthinkable in Europe as it would be incompatible with the Rule of Law.