Definition
A special privilege is a right, power, franchise, immunity, or benefit granted to a specific person or class of persons that is withheld from others generally — and that operates in derogation of the common right shared by all. The concept is primarily a term of constitutional law, invoked to challenge legislation or government action that singles out individuals or groups for advantages unavailable to the public at large.
The term carries two related but distinct applications:
1. As a constitutional objection: A law or governmental grant creates an unconstitutional special privilege when it bestows an exclusive benefit on one person or class without a rational basis tied to a legitimate public purpose, thereby departing from the principle that law should operate uniformly on all persons equally situated.
2. As a descriptive term for a granted right: In older legal usage, "special privilege" simply describes any right or franchise specifically conferred by government on a particular party — such as a corporate charter, a monopoly grant, or a special exemption — without necessarily implying constitutional invalidity. Context determines whether the term is descriptive or accusatory.
Common Language
Modern common usage (Wiktionary): An advantage, benefit, or right enjoyed by a particular person or group that is not available to everyone; an unfair or unearned advantage.
Historical common usage (Webster's 1913): A particular privilege or immunity; a right or advantage enjoyed by some to the exclusion of others; a prerogative; a franchise.
The gap between ordinary and legal usage is narrower here than with many legal terms, but it matters. In everyday speech, "special privilege" is often a rhetorical or moral complaint — a charge of unfairness or favoritism. In constitutional law, it is a technical objection with a specific doctrinal structure: the question is not merely whether an advantage is unequal, but whether the inequality lacks adequate justification and departs from common right in a way the constitution prohibits. A researcher encountering "special privilege" in a legal document must determine which register the author is operating in.
Common Confusion
SPECIAL PRIVILEGE vs. PRIVILEGE (evidentiary): These are entirely different concepts. Evidentiary privileges — such as attorney-client, spousal, or clergy-penitent privilege — are rules of exclusion that protect certain communications from compelled disclosure in litigation. Special privilege, as used in constitutional law, concerns the unequal distribution of governmental benefits or rights. A researcher running searches on "privilege" without adequate qualification may retrieve large volumes of evidentiary privilege material when seeking constitutional special-privilege doctrine, and vice versa.
SPECIAL PRIVILEGE vs. SPECIAL LEGISLATION: Closely related and frequently appearing together. Special legislation refers to a statute that applies only to a particular person, locality, or narrow class. Special privilege is the substantive benefit that special legislation often confers. The constitutional vice of special legislation is that it creates special privileges. The terms are analytically distinct but historically intertwined in state constitutional litigation.
Why It Matters in Research
State constitutional provisions prohibiting "special privileges" or "exclusive privileges" were common features of nineteenth- and early twentieth-century state constitutions, drafted in reaction to the era of special corporate charters and legislative favoritism. Researchers working in state constitutional history — particularly cases involving railroads, utilities, banks, and early corporations — will encounter "special privilege" arguments as a primary line of attack. The doctrine was litigated intensively in state courts before federal equal protection doctrine matured, and understanding this state-level history is essential context for cases that may not reference federal constitutional provisions at all.
The term's constitutional significance has shifted. Much of the work once done by "special privilege" doctrine under state constitutions is now handled by federal equal protection analysis under the Fourteenth Amendment. Older state court decisions using the "special privilege" frame may not map cleanly onto modern equal protection tiers of scrutiny — researchers should not assume conceptual equivalence without examining the specific constitutional text and period doctrine at play.
In legal research databases, the term is noisy. "Privilege" alone will return evidentiary results; "special privilege" in a full-text search may surface constitutional cases, employment law disputes, administrative law proceedings, and rhetorical usage in briefs. Filtering by constitutional law subject headings or pairing the search with terms like "exclusive privilege," "special legislation," or "equal protection" will sharpen results considerably.
The two early case citations in Black's — references to cases from the Dakota Territory and Utah Territory — signal that the doctrine was active in territorial and early statehood jurisprudence, where constitutional frameworks were being built from scratch and courts were particularly attentive to legislative overreach.
Historical Dictionary Support
Black's Law Dictionary defines special privilege in explicitly constitutional terms: "a right, power, franchise, immunity, or privilege granted to, or vested in, a person or class of persons, to the exclusion of others, and in derogation of common right." The definition is compact but precise, and its emphasis on the phrase "in derogation of common right" is the load-bearing element — it signals that the constitutional problem is not mere differentiation among persons, but differentiation that cuts against the background norm of equal legal standing.
Black's entry is narrowly doctrinal and does not address the descriptive use of the term for valid governmental grants. It also does not engage with the relationship between special privilege doctrine and the Fourteenth Amendment's equal protection clause, which developed along a parallel track in federal courts. Researchers should treat the Black's definition as a point of departure for state constitutional doctrine rather than a comprehensive account of the term across all legal contexts.
No other source dictionaries were available for synthesis in this entry.
Jurisdictional Note
Special privilege doctrine is primarily a creature of state constitutional law, and its vitality varies considerably by state. Some state constitutions contain explicit "anti-special-legislation" and "anti-exclusive-privilege" clauses that courts continue to apply as independent grounds of constitutional review, distinct from federal equal protection analysis. Others have largely folded the inquiry into the federal framework. Researchers working in a specific jurisdiction should consult that state's constitutional text and the current state of its special-legislation jurisprudence directly.
Encyclopedia Cross-Reference
The encyclopedia entries most proximate to this term address evidentiary privilege, not constitutional special privilege doctrine. The following entries are relevant to researchers who have arrived here via a search on "privilege" broadly and need to distinguish constitutional special privilege from evidentiary privilege:
— Spousal Privileges — Testimonial Privilege and Marital Communications (civpro_160)
— Clergy-Penitent and Other Recognized Privileges (civpro_162)
— Psychotherapist-Patient Privilege — Jaffee v. Redmond (civpro_161)
No Law Mind Encyclopedia entry directly addresses constitutional special privilege doctrine as a subject. Researchers should note this gap.