Page:Some Fundamental Legal Conceptions as Applied in Judicial Reasoning.pdf/23

38 Thus far it has been assumed that the term "privilege" is the most appropriate and satisfactory to designate the mere negation of duty. Is there good warrant for this?

In Mackeldey's Roman Law it is said:

"Positive laws either contain general principles embodied in the rules of law * * * or for especial reasons they establish something that differs from those general principles. In the first case they contain a common law (jus commune), in the second a special law (jus singulare s. exorbitans). The latter is either favorable or unfavorable * * * according as it enlarges or restricts, in opposition to the common rule, the rights of those for whom it is established. The favorable special law (jus singulare) as also the right created by it * * * in the Roman law is termed benefit of the law (beneficium juris) or privilege (privilegium) * * *"

First a special law, and then by association of ideas, a special advantage conferred by such a law. With such antecedents, it is not surprising that the English word "privilege" is not infrequently used, even at the present time, in the sense of a special or peculiar legal advantage (whether right, privilege, power or immunity) belonging either to some individual or to some particular class of persons. There are, indeed, a number of judicial opinions