Folia Theologica 22. (2011)
Szuromi Szabolcs Anzelm O.Praem.: Medieval Canonical Sources and Categories of Singular Administrative Acts
MEDIEVAL CANONICAL SOURCES AND CATEGORIES ... 121 civil administration of justice. But we may refer also to the acknowledgement of the bishop's judicial power, and the privilege of the relevance of episcopal decision in cases of marriage or redemption of slaves. In medieval canon law, privilegium (also known as ius privatum quibusdam concessum) may have been considered as a permanent concession which was granted to a person or persons, or an institution (e.g., religious order, province of an order, chapter, etc.)71 beyond, or even in a way contrary to, the general norm that is binding for all. In each case, privilege consisted of a special favour, as is true also in the present canon law (i.e. CIC can. 76 § l).72 The favour obtained meant a certain advantage in relation to those who did not obtain it. It is important to underscore that a privilege was and is fundamentally different from those particular laws that were made in a collective way as particular laws beyond general law, occasionally for the sake of filling in a lacuna of law, sometimes with specific application for a certain community (for persons, for things, or for the complex of persons and things). Because the favour given by the privilege was permanent, it cannot be identified with authorization or with dispensation (i.e. Dispensatio), which was given for an individual case. Apparently, privilege can only come from such ecclesiastical authority as possesses competent legislative power on the given area in question. Therefore, following Suarez, we may define privilege the following way: more or less permanent authorization, given by the legislator against or on the ground of the law (De Legibus, Lib. I cap. VII, nr. 11-1273). Privilege could be assimilated into the law (clausa in corpore iuris), for which the most characteristic examples were those given to clerics - even by way of rescript - containing favours. There were privileges that complemented the ex71 Lexikon des Mittelalters, München-Zürich 1977-1999. VII. 224-225. 72 Cf. Marzoa, A. - Miras, J. - Rodri'guez-Ocana, R. (ed.), Comentario exegéti- co al Código de Derecho Canonico, I. 649-651 (Roca, M. J.). 73 De Legibus, Lib. I cap. VII, nr. 12: (...) Nam illud bonum per privilegium concessum, ita debet esse aliquorum proprium ut in bonum commune redundet, modo superius declarato. Ac praeterea ipsa concessio privilegii tam rationabilis esse debet, ut ad bonum commune spectet, ex similibus causis similia privilegia concedi. Ex hoc ergo capite non excluduntur privilegia a propria ratione legis; an vero excluduntur ex eo quod respiciunt privatam personam, vel possint esse proprie leges maxime si perpetua sint (...). Suarez, F., De legibus et Deo legislatore, ed. L. VivéS (R. P. Francisci Suarez, Opera omnia, V), Parisiis 1856. 33.
