Cite as: 512 U. S. 477 (1994)
Souter, J., concurring in judgment
munity [under § 1983] can and should be slavishly derived from the often arcane rules of the common law").1
An examination of common-law sources arguably relevant in this case confirms the soundness of our hierarchy of principles for resolving questions concerning § 1983. If the common law were not merely a "starting point" for the analysis under § 1983, but its destination, then (unless we were to have some authority to choose common-law requirements we like and discard the others) principle would compel us to accept as elements of the § 1983 cause of action not only the malicious-prosecution tort's favorable-termination requirement, but other elements of the tort that cannot coherently be transplanted. In addition to proving favorable termina-1 Our recent opinion in Wyatt v. Cole, 504 U. S. 158 (1992), summarized the manner in which the Court has analyzed the relationship between the common law and § 1983 in the context of immunity:
"Section 1983 'creates a species of tort liability that on its face admits of no immunities.' Imbler v. Pachtman, 424 U. S. 409, 417 (1976). Nonetheless, we have accorded certain government officials either absolute or qualified immunity from suit if the 'tradition of immunity was so firmly rooted in the common law and was supported by such strong policy reasons that "Congress would have specifically so provided had it wished to abolish the doctrine." ' Owen v. City of Independence, 445 U. S. 622, 637 (1980) (quoting Pierson v. Ray, 386 U. S. 547, 555 (1967)). If parties seeking immunity were shielded from tort liability when Congress enacted the Civil Rights Act of 1871—§ 1 of which is codified at 42 U. S. C. § 1983—we infer from legislative silence that Congress did not intend to abrogate such immunities when it imposed liability for actions taken under color of state law. See Tower v. Glover, 467 U. S. 914, 920 (1984); Imbler, supra, at 421; Pulliam v. Allen, 466 U. S. 522, 529 (1984). Additionally, irrespective of the common law support, we will not recognize an immunity available at common law if § 1983's history or purpose counsel against applying it in § 1983 actions. Tower, supra, at 920. See also Imbler, supra, at 424- 429." Id., at 163-164.
In his concurrence, Justice Kennedy stated: "It must be remembered that unlike the common-law judges whose doctrines we adopt, we are devising limitations to a remedial statute, enacted by the Congress, which 'on its face does not provide for any immunities.' " Id., at 171 (quoting Malley v. Briggs, 475 U. S. 335, 342 (1986)) (emphasis added in Malley).
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