Translating ‘Rechtsverordnung’ into English

In a recent comment, the term Rechtsverordnung was mentioned, and it reminded me of an article by Geoffrey Perrin, then of the Sprachendienst, Bundesministerium der Justiz, in an issue of Lebende Sprachen so long ago that the cover was still blue (LS No. 1/1988, pp. 17-18). It is one of the best things I have ever read on German-English legal translation. There was a later article on the vocabulary of juvenile crime and prosecution that was good too. I found Perrin translated the Nationality Act (Staatsangehörigkeitsgesetz) for Inter Nationes, who have published English versions of numerous statutes both on paper (I ordered some free of charge by post once) and online. This translation is also available at the German Law Archive.

The article takes the problems of translating the term Rechtsverordnung into English as examples of the problems of translating legal terminology in general. For a summary, see the continuation.Perrin first gives Creifelds’ definition of Rechtsverordnung.

The language professional coming new to the field of German-English legal translation quickly discovers that this concept is most frequently rendered in English translations enjoying some sort of official status by ‘ordinance”. Examples are legion …

This is precisely the situation legal translators often find themselves in: has an English term become so widely accepted that it is better to use it even if it may not be ideal? (I was recently asked to translation ‘Beklagter zu 2)’ as ‘Defendant ad 2)’ (example slightly altered by me) instead of the standard ‘Second defendant’ – later I was told by another translator that ‘ad 2)’ was once used by a translator, who I think was an English lawyer, and it has established a foothold in Frankfurt am Main, rather like the giant hogweed or the Himalayan balsam).

P first discusses the value of ordinance: fairly rare in the UK:

‘One of the forms taken by legislation under the royal prerogative, normally legislation relating to UK dependencies’. Has an archaic ring. In the USA, Farnsworth indicates ordinances are ‘usually only of local interest’. There are therefore strong reservations about using it to translate Rechtsverordnung, which stands between Verfassungsrecht and Gesetze, whereas ordinance, in the UK and USA, is a ‘lower-order entity’. However, it would work in Hong Kong. – The discussion of the word ordinance is long and thorough.

The best term seems to be delegated legislation (subordinate legislation). However, there are times when a singular is needed, a specific reference.

The most important form of delegated legislation in the UK is the statutory instrument, the latter being known up to 1948 as statutory rules and orders.

Statutory order is a term that ‘forms a neat semantic fit’ with Rechtsverordnung and has a ‘semantic transparency’ that is not shared by the more modern term statutory instrument. Nor is the term obsolete in the UK, and Perrin found it used in an American translation of the Civil Code (Forrester et al.)

Perrin makes two final points: firstly,

The elaboration and consolidation of legal terminology for translation purposes demands much painstaking research and constant reference to original texts in both source and target language.

and secondly

The choice of one term rather than another will in some instances be determined by reader-expectancy (some may prefer to call this ‘reader-experience’ or ‘reader-background’).

I must say that I tend to use statutory order, unless delegated legislation will work, and I have done ever since I read the article.

13 thoughts on “Translating ‘Rechtsverordnung’ into English

  1. V. useful rundown, Margaret. Ingmar actually asked under the Austrian Courts entry for the trans. of Verordnung, though Rechtsverordnung seems to have been fused undistinguished into the equation. The EU Verordnung (no Rechts- prefix) only seems go to EU Regulation.
    Usefully for a change, the Eurodicautom website gives by(e)law for RV. It also gives my – albeit peculiarly Brit. – favourite of Order-in-Council that is used to transpose or implement EU Directives into UK law. I was going to elaborate on this in my answer to Ingmar, but felt the answer would have gone on too long, as this one may be doing….

  2. It was the recent mention that made me think of this article. If you or Ingmar want(s) the article faxed, it’s only two pages. It’s old but still valid. Of course, I should have mentioned the EU usage.
    I would have thought BE by(e)-law = U.S. ordinance, and is a level further down than Rechtsverordnung.
    How can one go on too long? Of course, weblog entries are supposed to be short, and they are supposed to be up-to-date, not based on articles 15 years old, but even those can lead to weblinks.

  3. Yes- I’d like a copy of the fax, thanks. You have my number.

    Perusing the trans. of Insolvency Statute on the German Law Archive, I can’t see much tie-up with US terms or the terminology of the UK Companies Act 1985 in gen. or the UK Insolvency Act and Rules 1986 in particular. Illiquid debtors (s.17) and immature claims (s.41) should raise eyebrows.

    Maybe the translator could usefully take a – another ? – look at the low-cost Introduction to Corporate and Personal Insolvency Law, Sweet & Maxwell 1998 or the bulkier Muir Hunter on Bankrutpcy co-authored by an acquaintance of mine.

  4. Hi Margaret,

    Some thoughts on this, in no particular order:

    1. Couldn’t “secondary legislation” be used as an alternative to “subordinate” and “delegated legislation”?

    2. Further to the point about EU-Verordnungen being regulations (they don’t just “seem” to be this, by the way, as AMM suggests; EU-Verordnungen are _always_ regulations): The purpose of many (German now, not EU) Verordnungen is to implement EU directives. Consequently many Verordnungen have direct equivalents implementing the same directives in UK law. These equivalents are almost invariably “regulations”. One example I’ve had a lot to do with is the Verpackungsverordnung, which transposes Directive 94/62/EC into national law. The direct equivalent in UK law is the Producer Responsibility Obligations (Packaging Waste) Regulations 1997. Having said that, you probably won’t get “German Packaging Regulations” past anyone at the Umweltministerium, the Umweltbundesamt or Duales System Deutschland.

    3. “Order” strikes me as being more appropriate for the type of Verordnung that may be considered a ministerial decree – legislation enacted in a hurry in response to an urgent need – matching the usage of the term “order” in the titles of UK statutory instruments. I like to reserve “order” for this type of legislation and call the sort of Verordnung that has emerged at the end of the full consultative process a “regulation” in line with the above.

    4. While we’re on with ministerial decrees: “decree” is a useful alternative if you want something that sounds continental, this being the word – or rather the English analogue of the word – used for equivalent legislation in France and various other countries.

  5. Regarding Robin’s point #3:
    I do not think urgency is the key factor here. Strictly speaking, I would say an order is more in the nature of an administrative act (a single exercise of an administrative power in relation to a particular person or situation e.g. the rules are set out in primary legislation and the minister is empowered to make an order bringing that legislation into force) while regulations have more of a legislative character (detailed provisions to implement a policy that is set out in primary legislation) but the distinction is not by any means rigorously observed. Personally, I cannot see any great problem with either regulation(s) or order as a translation for Rechtsverordnung.

    The situation in France is not quite the same. There the executive has law-making powers of its own, conferred directly by the constitution and not controlled by or dependent on any legislation enacted by parliament. Perhaps the word ‘decree’ is best reserved for the exercise of such powers. This is also reflected in English phrases such as ‘to rule by decree’.

    I agree that ‘secondary legislation’ is a valid alternative to DL. Incidentally, that term is also used in European law to refer to directives, regulations etc. as opposed to the founding treaties.

    Ciaran

  6. Unsure whether question 1) is aimed at Margaret only, I would venture the answer yes in the UK and Brit. Commonwealth. The terms are used interchangeably in standard UK Const. & Admin. Law textbooks. However, the EU terms are primary (Founding Treaties) and secondary leg. (Regs., Directives, Decisions and Judgments) – based on the obscure principle of ‘subsidiarity’ – rather than delegated or subordinate leg.

    4. Right. Decree is something usually issued by a UK court i.e. divorce judgment and binding on individuals.

  7. I am glad to see a discussion developing, so I will add my bit before I completely lose the thread. I can see that secondary legislation, regulation(s) and order are all good terms.

    Secondary legislation: I seem to remember a discussion on secondary and subordinate somewhere that contained useful information, but have forgotten the details.

    Regulation: a word I tend to avoid. OK, an EU Rechtsverordnung is a regulation (singular). I associate regulations (plural) with things like the Rules of the Supreme Court / Civil Procedure Rules, even though those two are called rules. Regulation in the singular, outside the EU context, seems more U.S. to me. All this is hair-splitting and I am sure Ciaran is right that usage is not always rigorous. (Incidentally, I wish the Germans were consistent with what they call Ordnung, as in ZPO, but I have not got any sense out of German lawyers as to its meaning).

    Decree: I tend not to use this. I see it may sound continental (Robin), but I don’t seem to encounter Verordnungen that are so different from the English.

    Apart from that, I ought to do some more reading.

    I suspect people like Adrian and Ciaran who translate out of several languages encounter a wider range of possibilities than I do. I imagine that French>English legal translators, for example, have different habitual terms than German>English ones.

  8. To AMM (craving Margaret’s indulgence):
    Perhaps I could have been clearer. When I wrote ‘that term’ I meant of course ‘secondary legislation’.

    By the way, judgments would not normally be regarded as forming part of EU secondary legislation. Nor is it clear what the principle of subsidiarity has to do with any of this.

    Ciaran

  9. I’m glad to see someone else has studied EU law… Ciaran, our comments virtually coincided online, so I didn’t read your comments until I’d posted mine a few minutes later.

    I was waiting for someone to pick up on the subsidiarity and judgments points that were actually ‘deliberate mistakes’. On the subsid. point only, I was speculating that indirectly applicable EU Directives – leaving the ways of implementing and details to the individ. member states – aren’t on all fours with subordinate leg. or DL. But I agree it’s a weak point.

    Another weak point would be that a Private UK Act of Parliament – i.e. opening a new railway line – would be a Decree in all but name.

  10. Taking up the objection to the Insolvency Statute (the very title is odd), the GLA takes whatever it can get. This is from the German Ministry of Justice. I was told recently that they ‘buy in cheap translations’. I suppose illiquid is not applied to persons. I see they translate Rechtsverordnung as ‘legal ordinance’ – the belt and braces approach to legal translation. I have a translation of the Insolvency Act or Code by Charles E. Stewart (it has illiquid too), and I can’t say I agree with it all either.

  11. Well, off-topic, as long as Charles can come up – pls. just once – with an insolvent debtor or judgment debtor, his effort might be worth looking at.

    Back on-topic, legal ordinance sounds like it’s supposed to contrast with the kind of illegal ordinance liable to come out of an uncivilised country.

  12. I don’t know if ‘judgment debtor’ comes up. As for the other, you can’t write ‘Insolvency proceedings can be commenced if a debtor is insolvent’, because it’s circular.

  13. Thanks for looking anyway. As to the second point, and we’re drifting ‘off topic’ again, I’m unsure the defintion is a circular one. A debtor is technically insolvent according to the 1986 Insolvency Act – as constantly repeated to me by UK Insolvency Counsel/High Court Bankruptcy Registrar I used to work with – if ‘unable to pay debts as and when they fall due’ and not necessarily when liabilities exceed assets. Otherwise most UK cos. would be insolvent – on paper! ‘Insolvency proceedings’ would confirm the position by adjuging the debtor bankrupt in an ‘adjudication of bankruptcy’. Before that unfortunate stage is reached, however, the judgment or – technically – insolvent debtor can enter into an IVA – Individual Voluntary Arrangement, for instance.

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