Article IV: On Privilege

391. Privilege etymologically is a private or particular law, and therefore it is a particular law enacted for the benefit of a determined person or category of persons. It is taken objectively for the particular law itself; subjectively for the special faculty of acting according to the particular law and of using the benefit or privilege taken objectively.

In the broad sense any particular law is thus called, in which sense the rights of bishops, pastors, minors, wives, etc., are called privileges; in the strict sense it is a favorable private law granting a special favor or benefit, not necessary, against or beside common right. Thus laws which regulate the life of religious are privileges only in the broad sense; those which further bestow on them a special benefit, such as exemption from the bishop or a special faculty for the sacrament of Penance, are privileges in the strict sense.

Since, however, it is a law, hence it must have the essential conditions of law; and therefore a privilege must be:

a) stable and permanent, and thus it is distinguished from dispensation or grace, which is not usually granted in a stable and permanent mode but transitorily;

b) useful to the community, otherwise it would be exorbitant and to be abolished, since the community must recognize the privilege and not impede the privileged person in its use. Thus privileges granted to regulars or clerics favor not only them but the whole Christian religion;

c) and therefore granted by him who has care of the community: for to exempt from common right, or to obligate others not to impede the privileged person from the use of the privilege, cannot belong except to the legislator. Therefore a private person cannot grant privileges, but only give licenses, and not against law.

Therefore privilege differs:

1. from a rescript, which is like the instrument by which a privilege or dispensation or interpretation of right or another grace is obtained from a superior;

2. from grace, which is a genus of benefit, of which privilege is a certain species;

3. from dispensation: a) privilege is a true law which positively constitutes some right; dispensation negatively relaxes law and takes away its obligation; b) privilege can be not against law but only beside law; dispensation is against law; c) privilege of itself is stable and permanent; dispensation of itself is granted for a passing act; d) privilege is given to an individual person; dispensation also to a community.

392. Division of privileges. - Privilege is divided in many ways:

1. By reason of the object or matter about which it is concerned: a) it is against law if it derogates from some law, or beside law if by it no law is derogated from, as is the faculty of dispensing: thus any habitual faculties whatever which are granted in perpetuity or for a predefined time or a certain number of cases (can. 66, § 1). The first can be granted only to subjects, because it is an exemption from law by an act of jurisdiction; the other also to non-subjects, because it is done by way of donation or faculty, which a superior can grant even to outsiders to be exercised in his territory. b) It is favorable, which brings advantage to the privileged person and prejudice to no one, as an honorific privilege or that of saying Mass in a private oratory; or odious, which brings advantage to one and inconvenience to another (not to the common good), as exemption from taxes or from the jurisdiction of the Ordinary.

2. By reason of the subject to whom it is granted, it is personal, which primarily, directly, and immediately is granted to a person by reason of himself, on account of knowledge, dignity, etc., and follows the person himself and is extinguished with him, for example, the faculty of absolving from censures, or of saying the rosary in place of the breviary; and real, which primarily, directly, and immediately is conferred upon a thing, whether corporeal, as a church, monastery, altar, or incorporeal, as a dignity, office, state, and through the thing redounds to the person: thus the faculties which are customarily delegated habitually to an Ordinary, which consequently do not cease by his death or removal. But if a real privilege is attached to a place, it is called local.

3. By reason of the cause or motive on account of which it is granted, it is gracious, which is from the mere grace and liberality of the superior; remunerative, which is given as a reward on account of merit or service of the person himself, or of his parents, blood relatives, or kinsmen; and onerous, if by an intervening contract on account of a burden imposed and service promised.

4. By reason of the mode by which it is granted, a) it is given or at instance, which is granted in view of a petition and is to be interpreted according to it; or motu proprio, which is granted from the mere kindness and inclination of the superior as a most special favor, even if a supplication preceded, and therefore it is of broad interpretation. b) It is granted first and of itself, without respect to a privilege otherwise given; or ad instar, if it is given in the mode by which it was granted to another: and then it is given either equally principally, if it is bestowed as if it had been granted first and of itself, and therefore is not revoked if in the other it has been abolished; or by accession, if it is communicated on account of the connection which the one to whom it is granted has with others previously privileged, so that it is increased, diminished, and lost together with their privilege.

5. By reason of the end, a privilege is common, which immediately regards and intends the common good, for example, the privileges of canon and forum given to clerics or of exemption given to religious orders; and private, which, although given to a community, immediately regards the good of a particular person.

393. Acquisition of privilege. - A privilege can be acquired in a threefold mode: by direct concession, indirectly by communication, and by prescription or custom (can. 63, § 1).

1. By direct concession, which only he who has legislative power can validly give, because he alone can obligate others not to impede the privileged person from the use of the privilege.

2. Indirectly, by communication, privileges are acquired which are granted to a moral person or state with which another moral person has communication of privileges.

Such communication of privileges in equally principal form existed among approved religious Orders, but for the future it has now been excluded by can. 613, § 1, privileges acquired before the Code not being revoked (Commission for Interpretation, December 30, 1937); but now it exists in accessory form between regulars and their familiars or tertiaries, between the first and second order (can. 613, § 2; 614).

Nevertheless communication of privileges, even in equally principal form, regards only those things which had been granted directly, perpetually, and without special relation to a certain place or thing or person to the one first privileged, account also being taken of the capacity of the subject to whom communication is made (can. 64).

3. By prescription and custom, in the same mode and with the same conditions by which a right is legitimately acquired or a law is abrogated (cf. n. 404); but since by prescription a norm of right is not constituted, but only a subjective right is bestowed, it can be called a privilege only analogically.

Centenary or immemorial possession induces the presumption of a privilege granted (can. 63, § 2).

394. Interpretation of privilege is to be made according to the following rules:

1. A privilege is to be estimated from its own tenor, nor is it licit to extend or restrict it (can. 67).

Therefore interpretation is to be taken from the clauses, from the words taken in their proper juridical sense, and from the context of speech. But in no way can a privilege be extended either from person to person, or from thing to thing, or from place to place, even if the same, indeed a stronger, reason occurs.

2. That interpretation is always to be applied, so that those increased by privilege may seem to have obtained some grace from the indulgence of the one granting (can. 68).

For privilege is essentially a concession of benefit and favor.

3. In doubt privileges are to be interpreted according to the norm of canon 50 (can. 68), namely, those which refer to lawsuits, or injure rights acquired by others, or are opposed to a law in the advantage of private persons, or finally were obtained for acquiring an ecclesiastical benefice, receive strict interpretation; all the rest, broad.

Thus odious privileges are generally to be interpreted strictly, especially those which are against right; on the contrary those which are beside right, favorable, remunerative, granted motu proprio, given to an Order or religious community.

4. A faculty granted carries with itself also the other powers which are necessary for its use (can. 66, § 3).

Wherefore in the faculty of dispensing there is included also the power of absolving from ecclesiastical penalties, if any perhaps stand in the way, but only for obtaining the effect of the dispensation.

5. A privilege, unless something else is clear, is to be judged perpetual (can. 70).

The contrary can be clear from the tenor, from clauses, as if it is given at our good pleasure, from the nature of the thing, as if it is strictly personal, or granted for a certain number of cases or a certain time.

6. A personal privilege follows the person and is extinguished with him.

395. Use of privilege. - 1. A common privilege, which principally has been granted for the common good, each one generally is bound to use, nor can he ever renounce it; because to act otherwise would be to the detriment of the common good.

2. A private and merely personal privilege, which has been granted to a private person only for his favor, each one can renounce; nor is he bound of itself to use it, unless an obligation arises from another head (can. 69).

Hence a sick priest detained at home who has the privilege of a private oratory is not bound to erect it, nor, once it has already been erected, to use it so that he can celebrate on Sundays. On the contrary, a confessor enjoying the privilege of absolving from reserved cases is bound to use it toward a penitent rightly disposed.

3. A private privilege which has been granted to a community on account of the good of individuals, individuals cannot renounce (but only the community); but of itself they are not bound to use it. Per accidens they can be bound to this, by reason of a special precept imposed on individuals by a superior, or by reason of conformity with others.

396. Cessation of privilege. - Privileges can cease either directly and of themselves, or indirectly and per accidens, namely, by defect of a necessary condition:

A. Directly: 1) by renunciation legitimately made and accepted by the competent superior. Nevertheless a private person cannot renounce a real privilege or one made to a community; nor can the community itself, if it was given by way of law, or if the renunciation would yield to the prejudice of the Church or of others (can. 72);

2. by express or tacit revocation, that is, by an explicit special act, or by a contrary law enacted by the superior who granted the privilege. Concerning this, cf. can. 71 and 60; in practice various rather intricate cases can occur, concerning which it pertains to jurists to judge.

B. Indirectly: 3) by the resolution of the right of the one granting, if the privileges were given with the clause: at our good pleasure, or another equivalent, such as: until I shall will, during my pontificate, etc. (can. 73); but not: until I shall revoke;

4. by the time having elapsed or the number of cases for which they were granted having been completed; or by circumstances, in the judgment of the superior, so changed that they have become harmful or their use illicit (can. 77);

5. by extinction of the person (can. 74), or by the thing to which they cohere being absolutely suppressed, or by the place to which they are attached being destroyed, unless the place is restored within fifty years (can. 75);

6. by non-use of an onerous privilege with liberative prescription of him to whose burden the privilege yields (can. 76); but other privileges do not cease through non-use.

397. Observation. - A just cause is required for the licitness of a privilege: for without a just cause a privilege against right injures legal and distributive justice; a privilege beside right is illicit prodigality. Nevertheless it is not required for validity, because it depends on the mere will of the legislator that someone be exempt from his law.