§ 2. On The Dissolution Of The Bond Of Law

— In what way subjection ceases. Since a law obliges only the subjects for whom it has been made, when subjection has been removed, it is manifest that the obligation itself ceases. But subjection is taken away both by a changed quality or condition of the person which is supposed by the law, and by privilege.

— On account of the changed condition which is supposed, a territorial law does not oblige even a subject outside the territory; a law made for laymen no longer obliges him who becomes a cleric; nor, on the contrary, does a law proper to clerics now oblige a cleric who has been reduced to the lay state. Cf. cc. 136 § 3; 141 § 2; 211; 213; 214; 648; 2305 § 1; 2358; 2387; and note, c. 213, the exception made for the obligation of celibacy which clerics in sacred orders have contracted.

And because a law of itself obliges no one to remain a subject, he who has made himself immune will never sin against the laws from which he is exempted. Although he could have sinned against another law, as if the immunity follows a penalty because of a delict, or if someone has illicitly changed his state.

— I. Notion. Privilege etymologically means a private law, and is customarily described: A private right granted to certain persons. This right is generally understood as favorable to him to whom it is granted. More accurately, privilege will be called a particular and non-necessary right granted with a benevolent intention to certain persons, whether taken individually or commonly.

We say non-necessary, in order to distinguish privilege from laws, certainly particular, which order the state, office, etc., of several persons.

Therefore the various laws which suitably regulate religious life are not privileges; what is bestowed upon religious beyond that ordering, such as exemption from diocesan jurisdiction, faculties of regular confessors: these are privileges. And because right is understood as favorable, the various incapacities which affect a secularized religious are not privileges.

¹ Cf. the learned articles of the illustrious Louvain professor, A. Van Hove, in Nouvelle Revue Theologique, 1922, January and following, De la notion du privilege.

— II. Divisions. 1. From relation to existing laws, privilege is distinguished as privilege beyond the law and privilege contrary to the law. Beyond the law is that which, if it is granted by no common law, is nevertheless prohibited by none: thus various faculties or powers granted to persons not incapable by common law of having them. By a privilege contrary to the law someone is withdrawn from a law by which otherwise he would be bound. Therefore a privilege contrary to the law at once supposes and takes away subjection to the law. Insofar as it supposes subjection to the law, a privilege contrary to the law is granted only to subjects; insofar as it takes away subjection, at least if it was given for private advantage, it requires strict interpretation (Cf. c. 68, coll. with c. 50, and what will soon be said concerning interpretation).

Are there privileges according to law? If the matter is considered, they cannot be, since they would give what the law itself concedes. But if the form is considered, or the title by which something is had, nothing prevents a title of having certain things from being granted independently of the common law and firmer than the law itself, so that, the law having been suppressed, the concession remains because of the subsisting title.

This distinction is greatly to be attended to, for example in the constitutions of religious which materially refer to the common law of religious. When the common law has been changed, the constitutions themselves will be changed, if the dispositions inserted in them are merely as of common law; on the contrary, they will remain of themselves, if they effected a peculiar right or proper right of the institute.

2. From motive, privilege is distinguished as gracious, which proceeds from mere liberality; remunerative, which proceeds from gratitude for merits; onerous, which has been granted by way of a pact with a certain mutual promise. That a remunerative privilege must of itself be understood more benignly than one merely gracious is clear; but by the quality of an onerous privilege the firmness rather than the interpretation of the privilege is affected.

3. From title of acquisition, privileges are acquired either by direct concession, which title is plainer and more certain, or by communication, or by legitimate custom, or by prescription itself.

Furthermore direct concession can be made either by law, or by particular indult, and that either at the instance of a party or motu proprio. This latter, since it shows the inclination of the Legislator, must be understood more benignly. That which has been conceded by indult is more strictly a privilege.

When the form of law is observed, it is more certain that the author of the privilege is moved by the intention of the common good, which intention requires a more benign interpretation. Privileges conceded by general law are also said to be contained in the Body of Law or in the Code, since the Code must contain all general laws, of themselves perpetual.

Privileges of this kind pertain to the universal ordering of society. And to these same privileges both the norms of privileges and the norms of laws, in favorable matters, must be applied; so that, if both norms cannot be composed at the same time, the norms of laws must prevail ¹.

A privilege which is conceded by law is never contrary to law, simply as such, although it can be contrary to common law.

By a not dissimilar reason, the canons concerning custom are also to be applied to privileges which are acquired by custom.

By prescription, however, no new juridical norm is established, but only a subjective right is bestowed, for example jurisdiction. Wherefore a privilege so obtained is a privilege only analogically.

Communication of privilege means a concession made after the likeness of a privilege conceded to another person. A privilege conceded after the likeness takes its interpretation from the directly conceded privilege which it imitates; nevertheless it can subsist independently of the former, so that it is not affected by the revocation or change of the former privilege. The letters of concession must be consulted.

¹ A privilege which has become common by accretions of the rights of those privileged must be distinguished from a privilege which was immediately conceded by common law. The first does not cease when the common law is taken away; while the other follows the fortunes of the common law.

— Communication of privileges. This quasi repetition of a privilege can be conceded by a particular disposition, or can flow from a general law, which generally and in advance makes all the privileges of some person or Institute common with other persons and Institutes. This is more properly called communication of privileges, which itself is twofold: one principal, the other accessory (c. 65). Communication conceded in principal form bestows upon the privilege thus acquired a subsistence independent of the former concession; while a privilege communicated in accessory form participates in the vicissitudes or fortunes of the direct or principal concession. Thus formerly, but not today (cf. c. 613), the privileges of one regular Order were communicated with very many other regular Orders in principal form; while secular Third Orders participate in the privileges of the first and second Order in accessory form. But every communication, from the nature itself of the matter, must be contracted to those privileges which had been conceded without special relation to a certain place or thing or person, and which do not surpass the capacity of the subject. Wherefore, for example, privileges conceded to some sanctuary because of antiquity or possession of a miraculous icon will have to be excluded even from a general communication; nor can laymen acquire clerical privileges by communication. But from the positive disposition of c. 64, privileges conceded for a time, or those which were acquired by the one with whom communication is conceded not directly but by communication, are not contained in general communication.

Custom, since it can take away a law, is also valid for conferring the right of some immunity or exemption.

By prescription, goods and rights, and jurisdiction itself, can be acquired, so that prescription is numbered analogically among the sources of privilege.

— 4. From the subject, privilege is distinguished as real, which reaches physical persons through their relation to a moral person (a community) or to a thing: a dignity, place or territory, house ¹; and personal, which immediately benefits persons. A privilege of a pious cause, granted to pious places, to a religion, or to other moral subjects, is counted rather among personal privileges.

5. From the immediate effect, privilege is distinguished as merely favorable, which is harmful or onerous to no person or law, and odious, which, while it favors one, imposes a burden or encumbrance upon another or is opposed to a more common right.

¹ Thus in the city of Pilsen, joined to the possession of certain houses is an "action" or title of association with the greatest factory of beer.

— III. Concerning the interpretation of privilege, these things must be observed.

1. "A privilege must be estimated from its own tenor, nor is it lawful to extend or restrict it" (c. 67). And "that interpretation must always be used, so that those increased by the privilege may appear to have obtained some favor from the indulgence of the one granting" (c. 68).

2. In doubt, a privilege which injures rights acquired by others, or for the advantage of private persons is opposed to law ², or has been obtained for the attainment of an ecclesiastical benefice, must be interpreted strictly; all others broadly. Cf. c. 68, compared with c. 50. The reason is because a privilege of itself arises from the beneficent will of the Superior.

And causes are of greater breadth: the motive, if the privilege is remunerative; the mode, if it has been conceded by law or motu proprio; the subject, if it is real, or granted to a pious cause, a pious place, a religion.

² Privileges conceded by law, however, will have to be interpreted like the laws themselves.

— IV. The use of a privilege is of itself free. Yet it happens that a community, from an obtained privilege, establishes a norm obliging its members: thus, as to the breviary, proper offices of the religion are recited by religious from a privilege whose use is necessary for them; and a free option, which for example can be left to a religion for votive offices, is not always permitted to individual religious.

We must also use privileges whose very use relates to the common good of the society or class to which we belong: thus clerics must, as far as possible, oppose clerical privileges to one violating them, so that they may preserve them intact.

And even the use of a personal privilege becomes necessary by accident from some virtue. Thus, after hearing a confession, a confessor will have to use his faculty in reserved cases by a certain tacit compact by which, like a physician, he promised to the sick man or penitent the full treatment of which he has supply. (Genicot, 1, 147). To the point is the Code, c. 69: "No one is compelled to use a privilege granted solely in his own favor, unless an obligation arises from another head."

— Privileges cease: when the day arrives up to which they were granted; when the person has been extinguished or the thing to which they adhere has been absolutely suppressed; by renunciation legitimately made and accepted by the competent Superior; by express or tacit revocation: for example by a contrary law made by the Superior of him who conceded the privilege; by liberative prescription of him to whom the privilege is onerous (Cf. cc. 60, 71-78).

On these causes and on revocatory clauses jurists must be approached. Let these things be enough for us. It is not lawful for private persons to renounce real privileges or privileges conceded to a community. Nor can a community renounce a privilege given by way of law, or if the renunciation yields to the prejudice of the Church or of others (c. 72 § 4). Tacit renunciation can be by non-use, if there is question of a privilege which is onerous to another. Otherwise non-use, as such, does not take away privilege, nor abuse. But the competent authority can deprive one abusing privilege of it as a penalty, just as it can take away privileges which, as the years pass, it has judged have become unsuitable.