Immunity (legal)

From New World Encyclopedia

Immunity confers a status on a person or body that places them above the law and makes that person or body free from otherwise legal obligations such as, for example, liability for torts or damages, or prosecution under criminal law for criminal acts. There are various types of immunity, such as that given to sovereigns, parliament officials, diplomats, prosecutors, or witnesses to crimes.

This exemption from an obligation or being penalized was formed for instances wherein the gravity of finding the perpetrators or the elements of a crime or situation far out-weighed the penalty for the individual who was being considered for immunity. Societal benefits play an important role in decisions in the attempts to solve certain matters and a balancing act is created in favor of the development of other individuals, families, and communities towards a lasting peace.

Sovereign immunity

Sovereign immunity is based on the idea that a sovereign is superior to all in authority and power. It prevents, in advance, a suit or prosecution against a sovereign, being a monarch, ruler, or government, without the sovereign's consent.

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; hence the saying, "the king (or queen) can do no wrong." 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 a defendant on the government's behalf.

In constitutional monarchies

In a constitutional monarchy, such as the United Kingdom, the sovereign is the historical origin of the authority which creates the courts. Thus the courts had no power to compel the sovereign to be bound by the courts, as they were created by the sovereign for the protection of his or her subjects. This position was drastically altered for the United Kingdom by the Crown Proceedings Act 1947, which made the government generally liable, with limited exceptions, in tort and contract.

Other forms of government

While the origin of sovereign immunity clearly derives from forms of government led by a monarch, it can nonetheless be applied to any sovereignty, where "sovereign" is understood as the supreme lawmaking authority. Thus, sovereign immunity may be applied to any government, preventing it from being sued without its consent.

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In the United States both federal and state levels of government can claim, or waive, sovereign immunity.

In the United States both federal and state levels of government can claim, or waive, sovereign immunity. Just as in the United Kingdom, in more recent times sovereign immunity is no longer seen as absolute, and in many cases governments have waived immunity to tort liability, at least to some extent.

Federal sovereign immunity

In the United States, the federal government has sovereign immunity and may not be sued unless it has waived its immunity or consented to suit. The United States has waived sovereign immunity to a limited extent, mainly through the Federal Tort Claims Act, which waives the immunity if a tortious act of a federal employee causes damage, and the Tucker Act, which waives the immunity over claims arising out of contracts to which the federal government is a party. The Federal Tort Claims Act and the Tucker Act are not as broad waivers of sovereign immunity as they might appear, as there are a number of statutory exceptions and judicially fashioned limiting doctrines applicable to both. Title 28 U.S.C. § 1331 confers federal question jurisdiction on district courts, but this statute has been held not to be a blanket waiver of sovereign immunity on the part of the federal government.

State sovereign immunity

In Hans v. Louisiana, the Supreme Court of the United States held that the Eleventh Amendment re-affirms that states possess sovereign immunity and are therefore immune from being sued in federal court without their consent. In later cases, the Supreme Court has strengthened state sovereign immunity considerably. In Blatchford v. Native Village of Noatak, the court explained that

we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition of our constitutional structure which it confirms: that the States entered the federal system with their sovereignty intact; that the judicial authority in Article III is limited by this sovereignty, and that a State will therefore not be subject to suit in federal court unless it has consented to suit, either expressly or in the "plan of the convention."

Judicial immunity

Judicial immunity, which finds its origin in sovereign immunity, is the absolute immunity of a judge or magistrate from any kind of civil liability for an act performed in the judge's official capacity. Hence, while sitting on the bench, the judge cannot be sued for defamation if he or she makes a statement about one of the parties before the court that might otherwise be considered slander.

Like judicial immunity, the prosecutor, who is acting under the direction of the sovereign or crown to prosecute cannot be held liable for acts done as an agent of the sovereign. For example, a judge may not be the subject of a libel suit for statements made about a criminal defendant during a trial. Nor may a judge's clerk be sued for negligence in failing to deliver materials to the judge.

The purpose of judicial immunity is twofold: tt encourages judges to act in a fair and just manner, without regard to the possible extrinsic harms their acts may cause outside of the scope of their work and it protects government workers from harassment from those whose interests they might negatively affect.

Judicial immunity has a number of critics. Some argue that judges are capable of grievous abuses against defendants during trials. Others claim that judicial immunity allows for judges to make decisions which do not agree with the thinking or sentiment of the people of a country, such as during abortion or euthanasia cases.

Parliamentary immunity

Parliamentary immunity is granted to elected government officials during their official acts in parliament, congress, or other public deliberative organ of government. Such immunity is seen to be a means to the free discussion of ideas, although when it is abused there may be ways to surmount such immunity; this was invoked in the case of Jürgen Möllemann (July 15, 1945 – June 5, 2003), a German politician. He served as a member of the German government as minister of state in the department of foreign affairs (1982-1987), minister for education and science (1987-1991), and as minister for economy (1991-1993) and vice chancellor (1992-1993) under chancellor Helmut Kohl, but had to resign in 1993, when he used an official letterhead for advertising a relative's business idea (the so-called Briefbogen-Affäre). Shortly before his death, Möllemann had been confronted with allegations he had been involved in illegal arms deals and evaded taxes on millions of euros he allegedly earned from those activities. To enable a full investigation on these charges, the Bundestag lifted his parliamentary immunity on June 5, 2003, at 12:28, 22 minutes before his death. The tax evasion charges were subsequently dropped after his death, although other investigations continued.

Prosecutorial immunity

Immunity from prosecution occurs when a prosecutor grants immunity to a witness in exchange for testimony. It is immunity because the prosecutor essentially agrees to never prosecute the crime that the witness might have committed in exchange for that testimony.

This form of immunity generally comes in two forms. Blanket immunity (sometimes known as "transactional immunity") completely protects the witness from future prosecution for crimes related to his or her testimony. Use immunity only prevents the prosecution from using the witness' own testimony against them. However, should the prosecutor acquire evidence substantiating the supposed crime—independent of the witness's testimony—the witness may then be prosecuted.

In international criminal law, countries which are signatories to treaties may sign with the reservation that they are specifically exempted from prosecution, thus granting themselves immunity. For example, in 1948, the United States signed the Convention on the Prevention and Punishment of the Crime of Genocide with the proviso that no claim of genocide could be brought against it at the International Court of Justice without its consent. It later invoked this immunity in the Court of Justice to deflect charges of genocide brought against it by Yugoslavia.

International Court of Justice

The International Court of Justice (known colloquially as the World Court or ICJ; French: Cour internationale de Justice) is the primary judicial organ of the United Nations. It is based in the Peace Palace in The Hague, Netherlands, sharing the building with the Hague Academy of International Law, a private center for the study of international law. Several of the Court's current judges are either alumni or former faculty members of the Academy.

Diplomatic immunity

Diplomatic immunity is a form of legal immunity and a policy held between governments, which ensures that diplomats are given safe passage and are considered not susceptible to lawsuit or prosecution under the host country's laws (although they can be expelled). It was agreed as international law in the Vienna Convention on Diplomatic Relations (1961), though the concept and custom have a much longer history. Many principles of diplomatic immunity are now considered to be customary law.

Diplomatic immunity as an institution developed to allow for the maintenance of government relations, including during periods of difficulties and even armed conflict. When receiving diplomats—formally, representatives of the sovereign (head of state)—the receiving head of state grants certain privileges and immunities to ensure that they may effectively carry out their duties, on the understanding that these will be provided on a reciprocal basis. As one article put it: "So why do we agree to a system in which we're dependent on a foreign country's whim before we can prosecute a criminal inside our own borders? The practical answer is: Because we depend on other countries to honor our own diplomats' immunity just as scrupulously as we honor theirs."[1]

Originally, these privileges and immunities were granted on a bilateral, ad hoc basis, which led to misunderstandings and conflict, pressure on weaker states, and an inability for other states to judge which party was at fault. Various international agreements known as the Vienna Conventions codified the rules and agreements, providing standards and privileges to all states.

It is possible for the official's home country to waive immunity; this tends to only happen when the individual has committed a serious crime, unconnected with their diplomatic role (as opposed to, say, allegations of spying), or has witnessed such a crime. Alternatively, the home country may prosecute the individual. Many countries refuse to waive immunity as a matter of course; individuals have no authority to waive their own immunity (except, perhaps, in cases of defection).

Qualified immunity

Qualified immunity is a term in the United States granting immunity to individuals performing tasks as part of the government. Certain individuals are immune from lawsuits "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."[2]

The defense of qualified immunity was created by the U.S. Supreme Court, replacing a court's inquiry into a defendant's subjective state of mind with an inquiry into the objective reasonableness of the contested action. A government agent's liability in a federal civil rights lawsuit now no longer turns upon whether the defendant acted with "malice," but on whether a hypothetical reasonable person in the defendant's position would have known that her actions violated clearly established law.

Certain individuals who are not government employees may have qualified immunity if they are considered a "state actor."


  1. The Straight Dope, What's the story on diplomatic immunity? Retrieved March 28, 2007.
  2. Harlow v. Fitzgerald, 457 U.S. 800 (1982).

ISBN links support NWE through referral fees

  • Chafetz, Josh. Democracy's Privileged Few: Legislative Privilege and Democratic Norms in the British and American Constitutions. Yale University Press, 2006. ISBN 0300113250
  • Cooper-Hill, James. The Law of Sovereign Immunity and Terrorism. Dobbs Ferry, NY: Oceana Publications, 2006. ISBN 0379215472
  • May, Erskine. Erskine May's Treatise on the Law, Privileges, Proceedings, and Usage of Parliament. Lexisnexis UK: 2004. ISBN 0406970947
  • Mooney, Krista Michele. The Evolution and Expansion of Eleventh Amendment Immunity Legal Implications for Public Institutions of Higher Education. Ph.D. thesis, Florida State University, 2005.
  • Wigley, Simon. "Parliamentary Immunity: Protecting Democracy or Protecting Corruption?" Journal of Political Philosophy, Vol. 11, No.2, pp. 23-40.
  • Zhou, Xiao Lin. The Law and Practice of State Immunity: A Thesis. Cambridge, MA: Harvard Law School, 1990.

External links

All links retrieved February 25, 2018.


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