Professor Fortin was a guest on a New Books Network podcast, “New Books in Law”, joining host Dr. Miranda Melcher to talk about her recent book The King Can Do No Wrong: Constitutional Fundamentals, Common Law History, and Crown Liability(Oxford University Press, 2024).
Professor Fortin discusses the origins of the phrase, and the fascinating ways it has been interpreted throughout English history. The very wording of the phrase “the king can do no wrong” is ambiguous, she explains, when taken in the context of the law. Does it mean that the king is above the law and that nothing the king does is considered wrong? Or does it mean the exact opposite – that the king is bound by the law just as anyone else is, and is therefore not permitted to do anything wrong?
Professor Fortin discusses how the lack of coherent meaning creates practical problems. “To the extent that different meanings of ‘the king can do no wrong’ reflect different historical periods, they’re not a problem as such, but rather evidence of the evolution of English constitutional thinking throughout history,” she says. “The problem, from a legal perspective, is that we do not know or acknowledge that there are different understandings of ‘the king can do no wrong,’ which creates confusion. And the phrase is used indiscriminately when one of the normative underpinnings of legal systems is coherence. And worse, some understandings of ‘the king can do no wrong’ are contradictory, and so just from a legal, logical standpoint the fact that they co-exist is kind of baffling.”
Professor Fortin traces how the phrase “the king can do no wrong” evolved to eventually mean “the Crown can do no wrong,” extending the king’s personal immunity to the government itself. She argues that the effects of the mutation of the phrase on the concept of sovereign immunity are still felt today, and she offers comparisons with how the idea is treated in Canada, Australia, Ireland and the United States.