Cite as: 527 U. S. 706 (1999)
Souter, J., dissenting
Next Blackstone quoted Locke's explanation for immunity, according to which the risks of overreaching by " 'a heady prince' " are " 'well recompensed by the peace of the public and security of the government, in the person of the chief magistrate being thus set out of the reach of danger.' " Ibid. (quoting J. Locke, Second Treatise of Civil Government § 205 (1690 J. Gough ed. 1947)). By quoting Pufendorf and Locke, Blackstone revealed to his readers a legal-philosophical tradition that derived sovereign immunity not from the immemorial practice of England but from general theoretical principles. But although Blackstone thus juxtaposed the common law and natural law 6 conceptions of sovereign im-where in the same chapter, Pufendorf expressly derives the impossibility of enforcing a King's promises against him from natural law theory: "Therefore, since a king enjoys natural liberty, if he has discovered any fault in a pact of his making, he can of his own authority serve notice upon the other party that he refuses to be obligated by reason of that fault; nor does he have to secure of the other [party to the pact] a release from a thing [namely, the pact] which, of its own nature, is incapable of producing an obligation or right." Id., at 1342-1343.
6 The Court says that to call its approach "natural law" is "an apparent attempt to disparage," ante, at 758. My object, however, is not to call names but to show that the majority is wrong, and in doing that it is illuminating to explain the conceptual tradition on which today's majority draws, one that can be traced to the Court's opinion from its origins in Roman sources. I call this conception the "natural law" view of sovereign immunity, despite the historical ambiguities associated with the term, because the expression by such figures as Pufendorf, Hobbes, and Locke, of the doctrine that the sovereign might not be sued, was associated with a concept of sovereignty itself derived from natural law. See Pufendorf 1103-1104; T. Hobbes, Leviathan Part 2, chs. 17-18 (1651), in 23 Great Books of the Western World 99-104 (1952) (hereinafter Leviathan) (de-scribing sovereignty as the result of surrender of individual natural rights to single authority); J. Locke, Second Treatise of Civil Government §§ 95-99 (1690 J. Gough ed. 1947) (describing political community formed by individual consent out of a state of nature). The doctrine that the sovereign could not be sued by his subjects might have been thought by medieval civil lawyers to belong to jus gentium, the law of nations, which was a type of natural law; or perhaps in its original form it might have been understood as a precept of positive, written law. The earliest source
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