Sonderrecht in der Frühen Neuzeit

Studien zum ius singulare und den privilegia miserabilium personarum, senum und indorum in Alter und Neuer Welt

[Early Modern Privilege
Studies on ius singulare and the privilegia miserabilium personarum, senum and indorum in the Old and New Worlds]

Thomas Duve

Studien zur europäischen Rechtsgeschichte 231
Frankfurt am Main: Klostermann 2008. XII, 358 p.

ISSN 1610-6040
ISBN 978-3-465-04057-6

For jurists of the 20th century, ‘privilege’ was an obstacle in the way of systematizing law, and in the 19th century it was taken as an expression of the discriminatory order of the ancien régime, which might explain the scholarly neglect of early modern privilege. Library catalogues, however, reveal an undeniably intense interest in call number Dig. 1.3.16, which is devoted to the principle of privilege. There is a host of titles dedicated to various iura singularia or privilegia, relating to the poor and infirm, merchants and clerics, the elderly and scholars. One important group were the miserabiles personae, which had always included the elderly and came to include indigenous peoples. The term, which originated in a Constantinian constitution and was perhaps most heavily used in medieval canon law, was of paramount importance in configuring the legal status of the indigenous populations of the New World. In order to understand this case of legal transfer and the treatises on privilege, one must reconstruct the principle and use of privilege in scholarly practice in light of the particular intellectual and legal culture of early modernity. As a result, the study treats the theory of privilege (part I) and the history of the term ‘persona miserabilis’ in the Old and New Worlds (part II) in order to depict and analyse the privileges of the elderly and indigenous peoples (parts III and IV). A reconstruction of early modern authors’ creative appropriation of ius civile and ius canonicum as well as a view across the Atlantic help to clarify the semantics of privilege (part V). This reconstruction also hints at the pluralising potential that was anchored in common law and saw extensive use in early modernity as well as an understudied, extra-European dimension of ius commune.

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