172
Kennedy, J., concurring
transform what existed at common law based on our notions of policy or efficiency.
My conclusions are a mere consequence of the historical principles described in the dissent of The Chief Justice. The common-law tort actions most analogous to the action commenced here were malicious prosecution and abuse of process. Post, at 176. In both of the common-law actions, it was essential for the plaintiff to prove that the wrongdoer acted with malice and without probable cause. Post, at 176, n. 1. As The Chief Justice states, it is something of a misnomer to describe the common law as creating a good-faith defense; we are in fact concerned with the essence of the wrong itself, with the essential elements of the tort. The malice element required the plaintiff to show that the challenged action was undertaken with an unlawful purpose, though it did not require a showing of ill will towards the plaintiff. J. Bishop, Commentaries on Non-Contract Law § 232, p. 92 (1889). To establish the absence of probable cause, a plaintiff was required to prove that a reasonable person, knowing what the defendant did, would not have believed that the prosecution or suit was well grounded, or that the defendant had in fact acted with the belief that the suit or prosecution in question was without probable cause. Id., § 239, at 95. Our cases on the subject, beginning with Harlow v. Fitzgerald, diverge from the common law in two ways. First, as The Chief Justice acknowledges, modern qualified immunity does not turn upon the subjective belief of the defendant. Post, at 178, n. 2. Second, the immunity diverges from the common-law model by requiring the defendant, not the plaintiff, to bear the burden of proof on the probable-cause issue. Supra this page.
The decision to impose these requirements under a rule of immunity has implications, though, well beyond a mere determination that one party or the other is in a better position to bear the burden of proof. It implicates as well the law's definition of the wrong itself. At common law the ac-
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