How to translate “reserva de ley” into English (using a descriptive strategy)

1441198_72790876Reserva de ley is the principle under which the Spanish Constitution specifies that certain areas of the law may only be regulated by primary legislation in the Spanish Parliament, the Cortes Generales. According to Wikipedia, this constraint or guarantee is found in at least 70 articles of the Spanish Constitution.

Although the term reserva de ley itself does not appear anywhere in the Constitution, it is a recognised principle in Spanish law (often referred to as principio de reserva de ley) and is apparently of German origin. (See this post by Margaret Marks on Transblawg for comments on the German term and this post.)

Culture-specific term

While similar principles exist in other civil-law jurisdictions such as Germany, Sweden, France and Venezuela, the concept does not appear to be enshrined as a specific principle anywhere in the common-law world.

So, here we have a culture-specific term, very common in legal translation and what I was referring to in this post on the merits of translating such terms descriptively against using linguistic or literal strategies.

Descriptive solution

A descriptive translation for reserva de ley in a phrase such as XXXX es materia sometida a reserva de ley might read something like “[matter/area/whatever it is] that must be regulated in the Spanish Parliament/by primary legislation”, which is more or less what I used when I had to translate this term recently.

Linguistic*, in this case, literal, solution

A linguistic-focused and literal translation might be something like “legal reserve”, “legal reservation” or “Under the ‘Reserva de Ley’ principle”, which are some of the examples you can find around the Web — both in translations and in term resources.

What makes more sense?

My biggest problem with a literal translation here is that “legal reserve/reservation” is probably going to mean very little to our potential reader: if we’re lucky, an English-speaking lawyer, but maybe the Kansas City milkman (see this post), in which case we can take little for granted as far as assumptions about field-specific knowledge go.

Maybe the reader will be a lawyer trained in a system with a similar principle, but that’s not the safest assumption to make.

The concept might be familiar in English in comparative law circles and may be used in the literature on the civil-law tradition, but I think this would count out most of the cases for which it might come up in translation and even then would require some kind of description.

And of course, whenever there’s a risk a term may not be understood, it may also be misunderstood and confused with some other concept if sufficient help is not provided for the reader.

In this case, description seems to be the safest and best bet if you want your reader to understand what reserva de ley means.

When I had to translate this term recently (in an academic paper), I was always pretty sure a descriptive solution was the way to go. But, as it was a principle that the reader might want to research themselves, I considered leaving the term in Spanish in brackets but didn’t in the end as in this case the reader didn’t need to know such a principle existed (although, even without mentioning it, this is the conclusion the reader would have to come to if they thought about it); the important thing was to know that the area of the law in question had to be regulated by primary legislation.

I can imagine cases in academic papers where you might need to introduce the term (in this case, the principle) to the reader where you might use a description and a literal solution, but this would definitely be the exception, and in all cases I would include a description alongside.

Resources

Descriptive solution found in an EU document:

It also requires this right to be defined by an Act of Parliament (reserva de ley ordinaria)

http://www.europarl.europa.eu/comparl/imco/studies/0703_crossborder_en.pdf

Definitions in Spanish:

 Materias que, según la Constitución, han de ser reguladas por una norma con rango ley aprobada por los representantes del pueblo en Cortes, no pudiendo el poder ejecutivo normar aquéllas. La reserva de ley puede ser: 1) ordinaria, y 2) orgánica. Por otro lado, la reserva relativa de ley permite que, excepcionalmente y cuando esté expresamente autorizado, algunas de estas materias puedan ser reguladas por el Gobierno.

http://www.enciclopedia-juridica.biz14.com/d/reserva-de-ley/reserva-de-ley.htm

 La reserva de ley o dominio legal es el conjunto de materias que de manera exclusiva la Constitución entrega al ámbito de potestades del legislador, excluyendo de su ámbito la intervención de otros poderes del estado. […] De acuerdo a la Constitución Española de 1978 existen reservas de Ley en una setentena de artículos. En ocasiones dicha reserva es de Ley Orgánica (como los Derechos Fundamentales, los estatutos de autonomía y el régimen electoral general) y en otras ocasiones de Ley Ordinaria.

http://es.wikipedia.org/wiki/Reserva_de_ley

 La Constitución reserva determinadas materias para ser reguladas, de una manera más o menos completa, por la ley: es lo que se denomina reserva de ley.

http://www.derechoconstitucional.es/2012/02/la-reserva-de-ley.html

UNED material (in Spanish) on reserva de ley:

http://www.uned.es/dpto-derecho-politico/DCIIAGud09.pdf

* Note to translation theorists: Sorry if I’m butchering the concept of “linguistic translation” here. In this case it may only amount to literal translation, but “linguistic” seems to fit better in a broader sense.

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Written by Rob Lunn

Rob Lunn is a freelance translator based in Spain. He translates from Spanish and Catalan into English and specialises in legal translation.

8 comments
  1. Haven’t you heard of a ‘matter for primary legislation’ in the Common Law World? Public law now divides into constitutional and administrative law and the answer lies buried in either.

    • Thank you — that is a more natural phrasing. Although it’s still following the same approach (descriptive as opposed to literal, albeit more functional/natural) because the principles are not the same. In the Spanish system, the Constitution sets down what must be legislated in parliament (and we’re talking about translating the name given to that), whereas there doesn’t appear to be any such constitutional or similar mechanism or guarantee in common law systems, (i.e., “matters for primary legislation” are usually decided by the parliament itself (my understanding, at least)), nor any specific name for it; hence moving a step away from what has to be translated (the name of the principle reserva de ley) and translating the end result.

      • Right. But I do not believe that the underlying legislative mechanism is important. Common Law countries like England & Wales without a written constitution, or parts only of which are written like the Magna Carta 1215, but that may introduce one in the future, will themselves on even keel with Spain.

        There will then be the constitutional issue of which parts of UK (Scottish or Welsh Assembly) Parliament decide on the matter: 1. The House of Commons 2. The House of Lords and 3. The riegning monarch who ‘has’ to give his or her assent: questionable if the primary legislation is intended to abolish the monarchy.

        There is also the point that, in an interpreting or theatre play (!) context, there is no time to explain.

        • I agree, if we’re just talking about matter the principle is applicable to (as in my example), the mechanism is usually not going to matter to the reader and getting into it is a waste, which was the conclusion I came to when I translated the term. However, at a system level, the difference becomes more important as there are implications (the legislative and executive (esp. with a majority) have a freer range in common law systems), so I’m sure there are cases where the difference and principle will need to be rendered somehow in translation.

          • I muzst admit I hadn’t given any thought to differences in systems. I just took the term as referring to one of the possibilities of a kind of entrenchment when you write a constitution, whcih we haven’t done in the UK, obviously. I tried to pursue the idea further but have not yet got anywhere with it (I thought the Canadian constitution might throw light on it, but not so, and I’ve lost my US book on the German Constitutional Court).

          • I did have a quick look at the Australian Constitution at the time but couldn’t find anything similar. Aside from that, on a LinkedIn group where I linked to this post, someone did point me in the direction of the French Constitution for more on the concept itself. The concept is actually quite interesting from a system point of view given the fairly universal trend towards executive dominance (another thing that came up in that LinkedIn discussion).

    • Yes, hopefully it’s not ambiguous, although the danger with descriptive solutions is you might dumb down or domesticate a term in a context when the reader actually needs to know something different is going on. Probably the only plus about using a senseless term like “legal reserve” or leaving the Spanish term is that the reader/client will know they’re dealing with a foreign concept (if that is important).

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