12 December 2019

TRANSLATABLE UNTRANSLATABLES, GERMAN LAW EDITION: FACHRECHT

Author: Phyllis Elago

On the face of it, Fachrecht looks like ‘specialised law’ along the lines of Fachstudium (specialist course of study) or Fachhandel (specialist dealers or specialist trade). But no. It refers to all non-constitutional German law. The term is derived from Fachgerichte, customarily used to refer to non-constitutional courts. A common law lawyer might think that ‘ordinary courts’ would be the most natural term in English, but ‘ordinary courts’ in German (ordentliche Gerichte) is a term of art which refers specifically to civil and criminal law courts (and not to any other courts such as administrative, employment, etc.). The UK famously does not have a written constitution, although it has a constitutional law. English has no word typically used in a positive sense by constitutional lawyers to differentiate the constitutional law from the non-constitutional. Interestingly, German constitutional lawyers also refer to German non-constitutional law as einfaches Recht (‘simple law’). Avoid a cultural faux pas when translating and note that English constitutional lawyers do not necessarily share this view!

For further reading: Kischel U., Comparative Law, 2019, Oxford University Press.