The Latin privilegium is made up of the words lex ("law, legal regulation") and privus ("individual, separate"). In Roman law, privileges originally referred to legal decisions that affected an individual, i.e. not a group or the entirety of Roman citizens. In terms of the legal system, it was therefore an individual order. The nature of the legal measure initially remained open. In particular, it was originally irrelevant whether the privilege contained a right or a duty . At the time of the Roman Republic , privilegia were rather generally legal decisions of the legislature that were not general laws (general decrees), but an exception to the general rule.
It was only later that the legal definition, which is still valid today, emerged, according to which a privilege describes the privilege granted to an individual (or a specific group) by the legislature in the sense of a pardon. Legal acts that adversely affect the recipient per se no longer fall under this term (although a privilege can certainly be linked to obligations or conditions ). In this sense, the word privilegium is used in Justinian's Corpus iuris civilis as a general term for a ius singulare (right of an individual).
In sociology from time to time there is also talk of a so-called "negative privilege". This term is used in particular in connection with educational opportunities for individual milieus.
Middle Ages and Early Modern Times
The extension of the term privilege to groups or a property (real privilege), the inheritance of privileges and the limitation of the content to privileges are developments from the time after the fall of the Roman Empire.
In the Middle Ages and in the early modern period, the issue of a privilege (in the form of a certificate ) for individuals or groups established new rights, whereby the holders of the privileges gained an advantage over others. Part of the essence of the privilege is that, in contrast to the mandate , it created a new legal situation in the long term, which could also be passed on. Only in exceptional cases (e.g. misconduct or infidelity of the beneficiary) could the privilege be revoked. However, until modern times there were also privileges that required recurring (e.g. annual) confirmation.
Privileges could be granted to those people who were allowed to freely pass on rights or property to subjects . These were primarily the emperor (or king ) and the popes . But a landlord could favor one of his subjects, calling him as the forced labor freed.
The subject of medieval privileges was a wide variety of things: donations to subordinates, the granting of a monopoly , the right to mint coins or wear a coat of arms , the exemption from interest and services, the conferment of jurisdictions or even the establishment of universities Privileges. The granting of city rights is also one of the privileges, because the members of the commune received a whole range of rights. Among other things, the townspeople were personally free.
The sum of all the privileges bestowed on the estates of an entire country over time formed the basis for the estates constitutions in the early modern period. They defined the relationship between the country and its prince by limiting the rights of the sovereign in favor of the estates. In the time of absolutism , the estates corporations lost many privileges to the princes.
In addition to the extensive privileges, there were countless specially granted ones. In residential cities , individual entrepreneurs competed for the title of privileged supplier to the court . In the printing industry, privileges were also granted to individual printing units - a positioning that was particularly aimed at large book projects that involved high investments in publishing. The sovereign who granted the privilege threatened with punishment in the case of the piracy . (In the "normal" case of pirated printing, it was left to the booksellers to identify "black sheep" among themselves and to brand violations with sanctions among themselves.)
19th and 20th centuries
In the sense of equal rights for all people, privileges are viewed more critically. Birgit Rommelspacher defines privilege as the opponent of discrimination : Discrimination creates privilege, privileges create discrimination. In particular, privileges that are acquired at birth are excluded in the Basic Law of the Federal Republic of Germany by Paragraph 3:
- “Nobody may be disadvantaged or preferred because of their gender, their origin, their race, their language, their homeland and origin, their beliefs, their religious or political views. Nobody may be disadvantaged because of his disability."
In Chapter IV of Book I to this day, canon law recognizes the possibility of granting a privilege as a grace in favor of certain persons (c. 76 § 1) and differentiates between the indefinite privilege and dispensation on the basis of the period of validity .
- Privilegium Maius and Privilegium Minus and, in a general sense, forms of the documents of the papal chancellery from the 9th to the 14th centuries.
- Golden privilege , granting of far-reaching privileges and freedoms to the four front cities of the Duchy of Pommern-Wolgast, Stralsund, Greifswald, Demmin and Anklam by Duke Wartislaw IX.
- Great privilege (Netherlands) , granting of far-reaching privileges and freedoms to the States General of the Netherlands in 1477
- Revised general privilege from 1750
- Letter of protection (diplomacy)
- Barbara Dölemeyer, Heinz Mohnhaupt (ed.): The privilege in European comparison (= studies on European legal history. Vols. 93 and 125). 2 vols. Vittorio Klostermann, Frankfurt am Main 1997–1999, ISBN 3-465-02899-6 , ISBN 3-465-02772-8 .
- Markus Engert: The historical development of the legal institute administrative act ( European university publications Bd. 3479). Lang, Frankfurt am Main et al. 2002, ISBN 3-631-39690-2 (also: Freiburg (Breisgau), Univ., Diss., 2002).
- Thorsten Lieb: Privilege and administrative act (= legal history series. Vol. 280). Lang, Frankfurt am Main et al. 2004, ISBN 3-631-51390-9 (also: Bayreuth, Univ., Diss., 2003).
- Friedrich Karl von Savigny : System of today's Roman law. Vol. 1. Berlin 1840-1851, Aalen 1981, p. 61 (reprint). ISBN 3-511-04810-9 .
- cf. Privilegium in Herders Conversations-Lexikon , 1854 ( online ), Meyers Großes Konversations-Lexikon , 1905 ( online ), Brockhaus' Kleines Konversations-Lexikon , 1911 ( online )
- Michael Vester: The divided education expansion - the social milieus and the segregating education system of the Federal Republic of Germany . P. 79