Gesetzesvorbehalt

There’s a term in German constitutional law, Gesetzesvorbehalt, literally (reservation/requirement of a statute).

On Legally Yours, Rob Lunn discusses the equivalent Spanish concept. How to translate “reserva de ley” into English (using a descriptive strategy).

In my database I find a suggestion to translate the German term as ‘constitutional requirement of the specific enactment of a statute’ (because secondary legislation is not enough).

It is apparently sometimes translated as ‘legal reservation’ or ‘reservation of law’, which doesn’t convey the meaning at all.

The word Vorbehalt is often a problem. If you translate it as ‘reservation’, you are using a word that’s less usual in legal English than Vorbehalt is in legal German.

I prefer ‘requirement’.

There’s a discussion of the term on LEO (quite useful in parts, but I particularly enjoyed the comment ‘I actually discussed that topic with a common lawyer. He completely ignored that concept’ with its interesting use of ‘ignored’).

I’ve apparently had to translate quite a few words with ‘Vorbehalt’ as part: Änderungsvorbehalt, Beamtenvorbehalt/Funktionsvorbehalt, Eigentumsvorbehalt (reservation/retention of title), Einwilligungsvorbehalt, Erlaubnisvorbehalt, Identitätsvorbehalt, Kontokorrentvorbehalt, Liefervorbehalt, Parlamentsvorbehalt (another term for Gesetzesvorbehalt), Progressionsvorbehalt, and several more.

I can’t quite agree with Rob that this is such a culture-specific term (see Things I learnt from a journo about translating culture-specific terms: (1) Description trumps linguistic solutions), but OK, it is not a concept that applies to UK constitutional law. I would definitely use the definition here, and I might not add the German in brackets.

LATER NOTE: A query on a mailing list relates to Saldohaftungvorbehalt, as in ‘ Eigentumsvorbehalt
Bis zur vollständigen Bezahlungen bleiben alle gelieferten Waren unser Eigentum (Saldohaftungsvorbehalt).’

I would suggest ‘liability for balance’.

4 thoughts on “Gesetzesvorbehalt

  1. I concur with you in the idea that the term is not culture-specific whilst a ‘matter for primary legislation’ will do perfectly well. In fact, Rob’s blog refers refers to primary legislation but doesn’t take the term to its natural conclusion. When turning and churning out translations or interpreted testimony at high speed, the translator in general and court interpreter in particular will not have the time or luxury of convoluted defintions.

  2. Yes, I think a variety of explanations are possible. This is a very common term in constitutional law and comprehensible in German, so I imagine an interpreter could do something with it, depending on how important it is in the context.
    What needs a separate post is the assumption that ‘gesetzes-‘ is going to be translated as ‘legal’. ‘Legal’ is not usually the way to go, and ‘statutory’ would work better.

  3. Hi Margaret! Nice to hear about the German term. “Requirement” actually opens up a few possibilities for translating the Spanish term, at least for when translating the principle if not its effects, so that option will be useful for next time.

    You’re right, it may not be the best example of a culture-specific term — at least in the context I give, although, as I said in the comments on my post, while in practice the difference might not matter often, at a system level, there are implications that make it unique, and it does warrant some care before automatically translating it off using a functional equivalent (Adrian’s very good suggestion — a definite improvement on my more descriptive one for the context I gave) because the principle is not only telling us something *is* a matter for primary legislation but also *why* it is, which is not what you’re most likely to assume from the functional equivalent by itself.

    Of course, I also say no to convoluted definitions, but sometimes the details matter.

  4. Hi Robb,
    I keep forgetting to get back to you on this. Of course it doesn’t really affect anything whether it is a culturally specific term or not. I see you have started a legal style guide on your blog – very interesting.

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