Sovereign Immunity vs. State Accountability: Judicial Approaches to Constitutional Wrongs

Abstract

The doctrine that “the King can do no wrong” has survived the death of kings. This paper undertakes an analytical reality-exposing inquiry into how courts across major common-law and civil-law jurisdictions have reconciled the inherited immunity of the state with the modern constitutional demand that public power answer for the wrongs it causes. Using a PRISMA-informed scoping-review methodology applied to a bounded corpus of primary case law, foundational statutes, international instruments, and doctrinal scholarship published in or before 2024, the paper traces the doctrinal migration from absolute sovereign immunity through statutory waiver to the judicially invented category of the “constitutional tort,” comparing the trajectories of India, the United Kingdom, the United States, Canada, South Africa, and the international human-rights and state-responsibility regimes. The analysis shows a consistent structural pattern: jurisdictions that retained ordinary tort law as the exclusive remedial vehicle for state wrongs (the United States under the Federal Tort Claims Act, and India prior to 1983) reproduced immunity through doctrinal back doors — the discretionary-function exception, the sovereign/non-sovereign functions test, and qualified immunity — whereas jurisdictions that detached compensation from tort and re-grounded it directly in constitutional or human-rights text (India’s Article 32/226 compensatory jurisprudence, Canada’s Charter section 24(1), South Africa’s section 38, and the Inter-American and European human-rights courts) achieved markedly higher rates of accountability for serious rights violations. A comparative table of six jurisdictions’ doctrinal architecture and a PRISMA-style screening table are presented. The paper argues that the surviving function of sovereign immunity is no longer to protect the state’s dignity but to allocate fiscal and administrative risk away from government, and that genuine state accountability requires courts to treat constitutional remedies as a distinct juridical category rather than a species of tort. The paper concludes with an assessment of competing judicial philosophies — formalist, rights-instrumentalist, law-and-economics, and postcolonial/TWAIL — and their differing prescriptions for the future of the doctrine.