法律术语翻译中的词汇空缺——关联理论的视角Lexical Gaps in Legal Terms Translation: A Relevance-Theoretic Approach

法律术语翻译中的词汇空缺 ——关联理论的视角

Lexical Gaps in Legal Terms Translation: A Relevance-Theoretic Approach

Abstract

It is obvious that each legal discourse has its own specificity with its cultural, political, social and historical events, which deeply influenced and still influence the legal language. Indeed, statutes and cases are mainly connected with ethical, philosophical, cultural and even religious reflections which are specific to each culture, to each nation; and so which seem difficult to express and translate faithfully in the TT. Furthermore, legal translation is all the more complex as the SL and TL are never in the same space and time, or under the same circumstances.

Legal terms or terms of art, usually refer to objects, relationships, acts, and procedures that are peculiar to a particular national legal system. As a product of different institutions, history, culture, and sometimes socio-economic principles, each legal system has its own legal reality and thus its own conceptual system and even knowledge structure.

In legal translation, a problem arises from the very beginning if the translator aims at finding the exact terminological equivalent. It is mainly due to the inherent incongruency of legal terms (i.e. legal lexical gaps) between legal systems. The legal terminologies of different legal systems are, for the most part, conceptually incongruent. And precision is one of the most main pursuits of legal language. The attribution of an improper equivalent to a legal term can be the cause of ambiguities, confusion and all types of miscomprehension due to the effect the term in question produces on the reader of the translated text.

In legal terms translation practice, mistranslation or improper translations are not uncommon due to a lack of guidance of proper theories, principles, and methods.

Up to now, the issue of legal terms translation between Chinese and English has drawn much attention. A large part of studies are on the causes, classification and specific methods of lexical gap in legal terms translation from the perspectives of cultural linguistics, semantics, comparative law, equivalence and so on. Few, if any, have ever tried to study the cognitive process of legal translators in translating, i.e. what happens to the translator in his or her decision-making process. Not to mention what kind of principles or guidance can be followed by translators. The present study attempts to examine the translator’s mental process in the translation of legal terms from the perspective of relevance principle in order to provide a systematic explanation of the phenomenon at issue.

For this purpose, researches in relevance theory and translation studies are employed to facilitate the analysis of the process of legal terms translation. And a relevance-theoretic approach to translation of legal lexical gaps is formulated. In this paradigm, the translation of legal lexical gaps is seen as a relevance-seeking double ostensive-inferential process. The translator searches for relevance in the source cognitive environment and makes dynamic choices in the target cognitive environment. In the process, the legal translator mobilizes his cognitive resources available and develops his subjectivity to search for the optimal relevance in the source cognitive environment and to make linguistic choices in the target cognitive environment. The translator’s linguistic choices and translation strategies must focus on the conveying of the author’s intentions without putting the audience to unnecessary processing efforts in achieving the contextual effects in the interpretation intended by the author. This is the nature of the process of legal terms translation. And optimal relevance is the fundamental principle, under the guidance of which legal translator make flexible choices among various translation strategies.

However, the dynamic choices of the translator are not without constraints. There are two constraints on his or her choices: consistency and conventionality. Consistency means that the translation of a legal term should be in adherence to an existing version in authoritative texts, although the translator believes that his or her translation may be better. Conventionality refers to cases in which a translated term is theoretically considered as improper, but it has been used again and again so that it is well-intemalized among the target language lawyers.

Key words: relevance theory; lexical gaps; translating process; legal terms translation

 

摘要

每一个法律话语体系都深受其文化、政治、社会和历史事件的影响,有其自 身的独特特征。这深刻影响并且继续影响着法律语言。的确,法律和判例反映不 同文化、国度的道德、哲学、文化和宗教观念等因素。这些因素很难在目标语言 中得到忠实的表述。而且,法律话语随情境的变化而演变,法律翻译因源语苜和 目标语言处于不同的时空、不同的情境而变得异常困难。

法律术语用于指称一个特定国家法律体系中的对象、关系、行为和程序。作 为特定体制、历史、文化和社会经济条件的产物,每一个法律话语体系都有其自 身的法律现实和概念系统以及知识结构。

因此,在法律翻译中,首要的问题是译者很难在目标语言中找到确切对等术 语。其根本原因主要在于不同法律体系的法律术语内在的差异性,本文称之为法 律词汇空缺。不同法律体系的法律术语多数都存在概念上的差异性。而精确性是 法律语言的本质性追求之一。不适当的术语翻译可能使目标语文本的读者产生歧 义、混乱和误解。由于缺乏正确的理论和方法的指导,在法律术语翻译实践中, 错译、乱译、不规范的翻译现象屡见不鲜。

随着中国加入WTO和经济的全球化,英汉法律术语翻译的问题受到越来越多 的关注。现有的研究主要从文化语言学、语义学、比较法学、对等翻译等的角度 探讨法律词汇空缺现象的产生原因、分类和具体的翻译方法。然而,很少有文章 研究法律译者的认知过程,因此,不能从本质上认识法律词汇空缺现象,没有提 出系统的理论。

本文旨在借用有关词汇空缺和关联翻译理论的研究成果分析法律词语空缺 翻译的过程,并提出指导性的翻译原则。

为此,本文提出了一个基于关联翻译理论的关于法律词汇空缺翻译过程的理 论框架。根据该理论框架,法律词汇空缺的翻译被视为是一个寻找最佳关联的双 明示推理的过程。在此过程中,译者启动其现有的所有认知资源,并运用其主观 能动性在源语言认知语境中寻找最佳关联,然后在目标语认知语境中做出最佳的 语言选择。译者的语言选择和翻译策略聚焦于传达源语术语的真实意涵,并且不 使目标读者花费不必要的认知努力而在认识源语言术语的意图(真实意涵)上取

 

得最佳语境效果。这就是法律术语翻译过程的本质;其根本原则是最佳关联.在 该根本原则的指导下,译者视具体情形灵活选择相应的翻译策略。

尽管如此,译者的动态的语言选择还存在一定的限制。为了交际的有效性, 译者须遵从两个限制因素:一个是术语使用一致性的制约,即译者须服从权威译 本中使用的术语,但前提是该术语不属错译;另一个是约定俗成性的制约,即在 完全空缺的情形下,若一原文术语在目标语中已经存在一个约定俗成的译法,因 其已在目标语法律人中形成内化的法律概念.尽管其从理论上讲不一定确切,但 创造一个新的译法已无必要。

关犍词:关联理论,词汇空缺,翻译过程,法律术语翻译

 

Contents

Acknowledgement      i

Abstract (English)       iii

Abstract (Chinese)       v

462 Literal Translation     45

Bibliography….         53

 

Chapter One

Introduction

  • Overview

With the rapid development of China’s economy, especially after China’s accession to the WTO, legal translation, once largely ignored in the academic field, has received ever-increasing attention. Papers and books on legal translation, mainly English-Chinese legal translation, begin to prosper.

Legal terms, as an essential part of the language of the law, play a significant role in legal translation. The translation of legal terms is deemed as a very difficult job by those who are employed in the business. The translation of legal terms is made quite difficult by the lack of equivalence of legal concepts, or for the purpose of this thesis, by lexical gaps. Firstly, linguistic structures that are found in the source language (SL) very often have no direct equivalent structures in the target language (TL). Secondly, easily recognizable target language terms may not accurately convey the concept or process referred to in the source text. This lexical gap or lack of equivalence is caused partly by linguistic factors such as the differences of lexical systems between two languages, and partly by extra-linguistic factors such diverse legal systems, different cultural, social and historical backgrounds, which are embedded in the legal language. Thus, legal terms in many cases do not lead to very precise translation and loss of meaning becomes inevitable. For the translation of legal terms, the faithful and accurate conveyance of meaning between the source text (ST) and the target text (TT) is the foremost requirement. The lack of equivalence and the demand for high precision of legal language constitute a paradox.

Legal language has a long tradition, the use of which is based on respective legal

 

system. For instance, the legal system in Germany is assignable to the Roman law tradition while in England to the common law tradition.

Studies on legal vocabulary have long been the focus of the study of legal language. The characteristics of this kind of vocabulary mainly consist in the extensive technical ones, which are always defended by lawyers as essential to communication within the profession, even if it may be difficult for the lay public to understand. The study of legal terms in legal translation has long enjoyed a privileged position on the forefront of legal translation. A large part of existing studies on legal translation deals with legal terms.

As the present study is intended as responsive to the translation of legal terms between Chinese and English, it is necessary to make clear the status quo of legal term translation between Chinese and English. Firstly, mistranslation of some terms is, more often than not, ubiquitous. For instance, final judgment was falsely rendered as “终审判决”,brief as “案情摘要”,settlement as “调解,解决”,and opinion as “判决 意见书”,Secondly, the lexicographical approach might proved to be of little use in that bilingual legal dictionaries leave legal translators still at a loss facing different versions, including mistranslated ones. The translators must make a choice among several versions, depending on various contexts surrounding the terms. Thirdly, near synonyms in legal terms have not been adequately discriminated and translated. Fourthly, standardization as to the translation of legal terms seems to have not been touched.

Up to now, the issue of legal term translation between Chinese and English has drawn much attention. Most existing studies have been focusing on the causes, classification and specific translation methods of lexical gap of legal terms from the perspectives of cultural linguistics, semantics, comparative law, equivalence and so on. Few, if any, have ever tried to study the cognitive process of legal translators in translating, i.e. what happens to the translator in his or her decision-making process, not to mention what kind of principles or guidance can be followed by translators. The present study attempts to examine the translator’s mental process in translating legal terms from the perspective of relevance principle in order to provide a

 

systematic explanation to the phenomenon at issue.

  • Objectives

The present thesis gets down to looking at the process of legal term translation in legal translation based on the framework of relevance principle, and strives to fulfill the following objectives:

To work out a framework for the process of legal term translation based on researches on relevance theory and translation studies;

To identify the various factors that should be taken into consideration in the translation of legal terms in order to produce an equivalent TT in terms of legal effect. These factors will be examined closely within the framework of relevance principle;

To provide guidelines for legal translators to follow in the process of legal term translation with reference to types of equivalence.

13 Notes on Data Collection and Methodology

Legal terms used for this study are taken from various textbooks of legal English, legislative texts, legal dictionaries and examples of terms in published papers. This study is a descriptive and explanatory one and the main methodology is deductive. The theoretical framework will be further specified as the research goes further.

1.4 Organization of this Thesis

This thesis is divided into five chapters:

Chapter one is an introduction to legal term translation. It discusses the difficulty or dilemma encountered by translators in legal term translation, and some typical problems in present English-Chinese legal term translation as well as the status quo of legal term translation and the purpose of this thesis. And it also makes it clear what are the research objectives as well as the organization of this thesis.

Chapter two is a literature review of the status quo of legal term translation, more specifically, the translation of legal lexical gaps. In this chapter, a brief introduction to lexical gap is made. And then based on the studies on lexical gap, a definition of legal lexical gap is formulated. This chapter also looks into the causes and classification of legal lexical gaps. After that, description of two major approaches to the translation of legal lexical gaps is followed. The remaining part is a review of legal term translation by Chinese scholars and a critique of existing approaches to legal term translation.

Chapter three is the theoretical framework of this thesis. In this chapter, a relevance-theoretic approach to legal term translation is formulated based on the researches on relevance theory and its application to translation studies. It is held that the translating process of legal terms, as a complex form of communication, is seen as a double ostensive-inferential process under the guidance of relevance. In the first round of ostensive-inferential process, the legal translator strives to find the most relevant interpretation of the legal terms in the source language, while in the second inferential-ostensive process the legal translator make an effort to choose the most relevant form of semantic representation from the target language. Both processes are governed by the principle of relevance.

Chapter four elaborates on the various factors at work in the whole decision-making process of legal term translation. In the relevance-theoretic approach to translation studies, the translating of legal terms is seen as an act of dynamic communication. He or she is an active mediator between the source text producer and target text receiver who makes inferences again and again in order to produce the most satisfactory TL text for its intended receivers. In addition, an ideal profile of legal translators is suggested, and specific translation strategies with reference to types of equivalence are analyzed.

Chapter five is the concluding part. It summarizes the major findings and the limitations of this dissertation. Since the major research methodology employed in this dissertation is theoretical and explanatory rather than empirical, and because of time limitation, this thesis is only a rough sketch of the process of the translation of legal lexical gaps. The problem of contexts in the field of law has not been investigated in great detail with empirical examples and data. And this may be a good topic for further study.

 

Chapter Two

Literature Review

  • Introduction to Lexical Gap

Lexical gap refers to the absence in the target language of a ready expression for a lexical unit in the source language, whose meaning can only be expressed with a free combination of words in the target language. It is closely related with the concept of translation equivalence, since it represents non-equivalence in some aspects. Non-equivalence, as well as equivalence, is a relative concept. They are just like the two ends of a road, each can stretch towards the opposite end, but neither can set a clear point where they should stop as the valid extension of each concept. Fortunately, Sarievic’s division of equivalence provides us some clues in setting them at comparable degrees.

According to Sardevic (1997: 238-239), there are three types of equivalence: near equivalence, partial equivalence, and non-equivalence, each of which includes both intersection and inclusion. The optimum degree of equivalence is referred to as near equivalence. Near equivalence occurs when concepts A and B share all of their essential and most of their accidental characteristics (intersection) or when concept A contains all of the characteristics of concept B, and concept B all of the essential and most of the accidental characteristics of concept A (inclusion). Partial equivalence occurs when concepts A and B share most of their essential and some of their accidental characteristics (intersection) or when concept A contains all of the characteristics of concept B but concept B only most of the essential and some of the accidental characteristics of concept A (inclusion). And if only a few or none of the essential features of concepts A and B coincide (intersection) or if concept A contains all of the characteristics of concept B but concept B only a few or none of the

 

essential features of concept A (inclusion), one speaks of non-equivalence.

Based on the above division, lexical gap can be divided into two major types: lexical gap proper and semi-lexical-gap.

Lexical gap proper means that no word or collocation can be found in the target language as the equivalents of lexical units in the source language, that is, the two languages are of non-equivalence at this point. This kind of lexical gaps exist despite of the context, which means that they can be detected through comparison of lexicons of two languages. Lexical gap proper usually has two manifestations. One is the concept vacancy; the other is the expression vacancy of an existing concept. Concept vacancy refers to the absence in the target language of a concept expressed by a lexical unit in the source language. This vacancy is usually caused by cultural differences. Expression vacancy means that the target language has such a concept, but it has not been lexicalized, usually due to the insufficient attention on this concept.

Semi-lexical-gap is a substandard kind of lexical gap, if lexical gap proper is a standard one. This type of lexical gap is said to be “semi” since we can find them a partial equivalence in the target language. The equivalence is only partial in that the source lexical unit and the target one have divergences in denotation or connotation. Unlike lexical gaps proper, semi-lexical-gaps seldom occur to words or collocations in isolation, since there are still partial equivalents as their counterparts. However, when the context focuses attention on the non-equivalent part of such a lexical unit, its partial equivalent becomes powerless in conveying the proper meaning, and lexical gap occurs. For instance, in Anglo-American lau; there are two forms of defamation: libel and slander, and both can refer to defamation in tort law and criminal law. In other words, defamation can both be a tort law term and a criminal term, and may take two different fbrms in both cases. However, in Chinese law, we only have “诽谤罪” in criminal law; and we do not have any from of “诽谤”in tort law terms. Ifs a partial equivalent of defamation. If we employ “诽谤罪”in a case where the tort law meaning is intended in the source text, this Chinese “equivalent“ becomes powerless in conveying the proper meaning.

The causes of lexical gaps in translation can be attributed to two major elements:

 

cultural differences and differences in linguistic mechanisms. According to Toury, “translation is a kind of activity which inevitably involves at least two languages and two cultural traditions.55 (Toury 1978: 200) This implies that, translators are constantly faced with the problem of how to cope with the cultural and linguistic aspects of a legal term embedded in a source text and how to find the most appropriate technique of successfully conveying these aspects in the target language.

Culture and linguistics are key factors in the translating process, and the two themselves are always intertwined with each other, as indicated by Lotman’s theory that “no language can exist unless it is steeped in the context of culture; and no culture can exist which does not have at its centre, the structure of natural language>, (Lotman 1978: 211-32). Bassnett (1980: 13-14) also underlines the significance of this double consideration when translating by stating that language is “the heart within the body of culture^^, the survival of both aspects being interdependent.

Cultural differences are the root of lexical gaps. Though language is the best carrier of culture, words can never compete with tangible materials and feelings in conveying the reality. If things are beyond a cultural environment, its language either fails to record them or becomes pale in reproducing them.

On the other hand, linguistic mechanisms widen the gaps between different cultures. Languages have different ways in coining words and endowing them with meanings, which is especially obvious for languages of differentiated language femilies, such as English and Chinese. It is not uncommon for translators to encounter an item whose meaning is as easy to understand for the target audience as it is for the source audience, but still can not find a suitable term to express it exactly in the target language, such as puns. And that is an instance when one deeply feels the inability of a language.

  • DeHning Legal Lexical Gaps

In international standardization, the terminology of a special area can be

 

standardized in different languages only after the objects and consequently the concepts they signify have been standardized (Sager 1990: 114-128), This process is considerably easier in the natural sciences because in the majority of instances the same objects exist in each society. This is no longer the case in the field of law where legal terms or terms of art, as they are called in English law, usually refer to objects, relationships, acts, and procedures that are peculiar to a particular national legal system. As the product of different institutions, history, culture, and sometimes socio-economic principles, each legal system has its own legal realia and thus its own conceptual system and even knowledge structure (Vanderlinden 1995:328-337). Consequently, the legal terminology of different legal systems is, for the most part, conceptually incongruent (SarSevic 1989: 278).

Terminological incongruency occurs not only between different legal systems, but also in the same language of diflferent legal systems. In addition, each legal system contains a number of terms with no comparable counterparts in other legal systems or families. This is because the actual objects, relationship, action, or procedure does not exist in other legal systems. System-bound terms designate concepts and institutions peculiar to the legal reality of a specific system or related systems.

Since most legal terms of different legal systems are inconsistent or incongruent with each other, the problem of legal term translation becomes the problem of how to cope with legal lexical gaps in translating.

Based on the above analysis and the definition of lexical gaps in the previous section, legal lexical gaps, or lack of equivalent legal words (Song 2006:233), can be defined as the phenomenon that a legal term in the source language has no ready counterpart or near counterpart in the target language due to different legal systems, different institutions, history, culture, and socio-economic principles.

  • The Causes and Classification of Legal Lexical Gaps

Song Lei (2006:233-237) analyzed three major kinds of causes of legal lexical gaps: differences in legal systems and provisions, differences in legal cultures and differences in economic development. Firstly, the subjects or objects designated by legal terms are not natural but man-made * things*. Legal terms refer to man-made abstract concepts, rather than the objective things created by God. The connotations of legal terms are prescriptive. They are established through legal process in the form of laws and provisions. And in most cases, the connotations of legal terms are set down in the clauses of legal interpretation or legal dictionaries. These clauses and dictionary definitions originate from and are subject to specific legal systems. Different legal systems lead to differences in provisions. Differences in legal cultures are the second major cause of legal lexical gaps. Here legal culture refers to the “values underlining human legal practice and the socialized operating state of such values5‘ (Zhao Zhenjiang 1981:500). The values of a people or state are the product of its politics, culture, history and tradition. Thirdly, to some extent, legal terms are based on certain economic system and conditions.

Furthermore, Song Lei (2006:233-237) analyzed two kind of legal lexical gaps on the basis of semantic analysis: absolute lexical gap and relative lexical gap. Absolute lexical gap refers to the non-existence of an equivalent word in terms of conceptual meaning and grammatical meaning, i.e. there is no concept or thing in existence for a source term in the target culture, and our cognition of it must begin from the beginning. Relative lexical gap is further divided into two categories. One refers to a phenomenon that there exists a similar concept or judicial practice or phenomenon but it has not been lexicalized, i.e. no equivalent term for the source term. Another is non-absolute counterpart which means that the source term and the target term are similar in conceptual meaning and grammatical meaning, but their connotative meanings are fundamentally differentiated, the translation of libel and slander is a typical example. These legal terms are quite misleading since their connotative meanings are indeterminate and difficult to detect. Hence, they often lead to misunderstanding and thus mistranslation.

Dai Yongjun and Zhang Derang (2004: 77-80) also dwelled on the causes of lexical gaps in legal term translation. Dai and Zhang maintained that legal terms are

 

the basic and most significant components of legal language. They not only embody stylistic characteristics of legal language, but also reflect the typical characteristics of the legal system of a legal culture. Due to the special social function and practical value of legal texts, legal translation requires that the target term and the source term are not only equivalent in linguistic function, but also in legal function, so research into the phenomenon of lexical gap in legal term translation and the resolution of such difficulties becomes substantially significant.

As we all know, the generation and development of language is inseparable with the culture it carries, so is legal terms with legal culture. Legal language, in its generation and development, is influenced by various aspects of legal culture.

Based on the above, Dai and Zhang concluded that, the differences in legal tradition, real life, social institutions and ethnological psychology are the main causes of lexical gaps in English-Chinese legal term translation. The concept of legal tradition is closely related with legal culture. Usually, the traces of legal history are reflected in present day legal culture, such as the division of common law and equity law, and jury system in Anglo-American countries. Differences in real life determines that people in different legal culture may make specific laws according to different practical problems, such as the making and promulgation of Anti-Terrorism Act following September 11 in U.S.A. and Anti-Secession Law of the People s Republic of China, The cause of social institutions refers to the differences in political, economic and cultural systems etc. as a whole. They constitute the base of a society and various aspects of the society, and surely, including the making and operation of the law. And last but not the least, the cause of ethnological psychology, which is usually set down in the form of law if it becomes a common code of conduct of a society. For example, in American society, where the mentality of “private ownership” has long been deep-rooted, there is a specific law termed as Torts.

  • Existing Researches on the Translation of Legal Lexical Gaps
    • The Equivalence Approach

Among the problems posed by legal translation, that of terminological equivalence is one of keen current interest. It is a well-known fact that legal translation as such poses many problems due to the differences in legal systems from one country to another.

“In contrast to what happens with mathematics or chemistry, where there is an objective extra-linguistic reference, legal realities are conceived as the result of legal discourse which creates its own reality from different or shared historic traditions, in one or several languages, and which cannot coincide in the concepts of analysis or can only coincide partially when they focus on a common international legal phenomenon” (Capellas-Espuny, 1999). Each legal system is situated within a complex social and political framework which responds to the history, uses and habits of a particular group. This complex framework is seldom identical from one country to another, even though the origins of the respective systems may have points in common.

Gemma Capellas-Espuny (1999) examines the problem of terminological equivalence in international maritime law. She claims that the diversity of legal systems makes research in the field of legal terminology more difficult in that a particular concept in a legal system may have no counterpart in other systems and refer to different realities. She also maintains that legal translation implies both a comparative study of the different legal systems and an awareness of the problems created by the absence of equivalents. The fact that no comparable concept exists in another legal system can be the cause of ambiguity, confusion and all types of miscomprehension due to the effect the term in question produces in the reader of the translated text if the translator aims at finding the exact terminological equivalent. The difficulty of terminological equivalence in legal translation is reflected in the expectations of the reader from the translated text. Based on her translation practice in the Final Act and International Convention on Maritime Liens and Mortgages, she proposes the notions of pragmatic equivalents. Legal translator must look for juridical and linguistic equivalence of the terms of their specialty, without sacrificing one equivalent in favor of the others. Thus, legal translators can only look for the pragmatic equivalence of concepts, that is to say, the same outcome in both texts; even if by so doing they must apply different strategies. Her study comes to the conclusion that equivalence is not an isolated translation strategy.

Translation is much more than code-switching, i.e. the substitution of lexical and grammatical elements between two languages. Often the process of translation requires the art of leaving aside some of the linguistic elements of the source text to find an expressive identity among the element of the source and the target texts.

As a result, in the field of legal translation, the major practical difficulty is that of deciding whether a concept is the same in two languages or whether it is different in terms of the consequences which ensue.

Thus, there are certain terms which appear similar in two different legal systems but which might mislead the reader if he tried to understand them literally, assuming they cover the same concept in both legal systems.

SarCevid (1997) mentioned two types of equivalence: linguistic equivalence and natural equivalence. She said that while the majority of linguistic equivalents are terms created to designate concepts foreign to the target legal system, natural equivalence are terms that actually exist in the target legal system. Due to the inherent incongruity of the terminology of different legal system, legal translators cannot be expected to use natural equivalents of the target legal system that are not identical with their source terms at the conceptual level. Nonetheless, it is perfectly legitimate to require them to use the ‘closest natural equivalent* of the source term and leads to the desired results, i.e. the same legal effect. And this may prove to be a formidable task at times. She concluded that the acceptability of natural equivalents must be determined on a case-by-case basis.

Furthermore, Sarcevic introduced another type of equivalence, i.e. functional equivalence, which is used not only in general translation theory but also in comparative law. As an attempt to define the term as a technical term of legal translation, she had defined functional equivalence in an earlier article as a term

 

designating a concept or institution of the target legal system having the same function as a particular concept or institution of the source legal system (Sardevidl989:278-279). Since most legal systems provide solutions for basically the same problems, comparative lawyers maintain that concepts and institutions of different legal systems can be meaningfully compared only if they are capable of performing the same task, i.e. if they have the same function. Thus, when searching for equivalents in the target legal system, translators should approach the matter as if they are solving a legal problem. Like the judge, they should identify the nature of the issue at hand and determine how that issue is dealt with in the target legal system. This should lead the the translator to the concept or institution in the target legal system that has the same function as the concept concerned in the source legal system.

However, identifying the functional equivalence is only the first step in a complex decision-making process. The fact that a functional equivalence has the same function as the source concept does not mean that it is acceptable for the purpose of translation. Some functional equivalents may not be sufficiently accurate. Therefore, a functional equivalent should not be used until its acceptability has been proven. And in order to determine the acceptability of a functional equivalent, translators must compare the target and source concepts to etablish their degree of equivalence. While some functional equivalents are always acceptable (near equivalence) or never acceptable (non-equivalence), most functional equivalents fall into the category of partial equivalence. Accordingly, the question of acceptability arises primarily when a functional equivalent and its source term are only partial equivalent. In such cases, the acceptability of a functional equivalent ususlly depends on context, thus requiring the translator to analyze each textual situation before deciding whether a functional equivalent is acceptable in that particular context.

242 Comparative Law Approach

Noticing the disadvantage of former translation theories which focusing on linguistic features and ignoring the study on differences of legal systems and the nature of legal translation, Peter Sandrini (1999) proposed a new approach to legal translation based on comparative law study. Sandrini held that the dictionaries are not reliable and translators have to rely on themselves to take any necessary means or strategies to translate legal terms. In his view of point, translators have to make up their own mind to translate legal terms with the assistance of the information provided by dictionaries. The definitions of legal concepts are not unchangeable and concrete, but open and dynamic. His research reminds us that the translation of legal terms requires full development of the translator^ creativity and should be taken back into the social background and knowledge of different legal systems.

Translation of legal terms cannot be reduced to a search for identical concepts in two or more legal systems, simply because this would lead to a fruitless debate about when and where conceptual equivalence is possible. A new methodology should have its focus on the overlapping characteristics of partial or relative equivalence. Sandrini held that in order to achieve this we have to abandon the concept of equivalence (at the level of terms) in favor of a more flexible comparative approach (Sandrini 1999). The difference lies in the presupposition that legal concepts as part of a national system of laws are fundamentally different among legal systems and that only a comparative approach is possible. What has to be done primarily is to document and describe legal concepts within their natural environment. This implies two consequences: firstly, concepts should not be treated as isolated items but as parts of a system constructed on relations between its components, and secondly, information provided is always based on the national legal system to which the concept belongs.

The description of legal concepts starts from a single concept but takes account of all the relations it has with its surrounding concepts, i.e., with all concepts that contribute to create a special legal setting intended to regulate or provide the legal basis for a particular aspect of real life.

According to Sandrini, there are two types of relations between concepts: relations between concepts within one language, i.e., conceptual relations within a concept system, and relations between two or more languages i.e., comparison of the concept systems, the latter being his main concern. As to the concept of equivalence, he states that, ^equivalence is defined on the basis of corresponding conceptual features which depend on the intension of the concept and its position in the concept system of the chosen subject field?* (Sandrini: 1996) In his opinion, there is no equivalence at the level of terms and the linguistic representation of a single term is only of secondary importance. According to his analysis, there are three types of equivalence at the level of concept. The first type is absolute equivalence, which means terms in two or more languages refers to the same concept. That there is no relation at all is the second type. In the former two types we do not need the concept of equivalence. Thus, Sandrini takes the third type, i.e. partial equivalence as his focus of analysis. In addition, Sandrini suggests that it is essential for a translator to get all the conceptual information in the subject field involved in order to find out which concepts are unique in the source legal system and which terms only exist in the target legal system. It is strongly claimed that only after a comparative study of associated legal concepts can legal terms be properly translated.

  • Studies on E-C Legal term translation by Chinese Scholars

The translation of legal terms between English and Chinese has been many scholars’ main endeavor. It makes up about a third in the studies on legal translation according to a statistics made by Li Fengde and Hu Mu (2006: 47-51), There are not only numerous papers and dissertations on E-C legal term translation, but also chapters and even books devoted to the translation of legal terms between English and Chinese. The most leading and representative ones are as follows:

Chen Zhongcheng (1983, 1984, 1995, 1998, 2000), as a former student of comparative law and a proficient speaker of four languages, (namely English, Japanese, Russian and Chinese), is one of the pioneers of legal term translation. He has published several books on the translation of individual legal terms, both Chinese and English. His focus is on the mistranslation and inconsistency of the translation of legal terms, in particular the incorrect translations by Chinese legal translators by resorting to original legal dictionaries, newspapers and magazines, etc., and proposes his own versions. Chen’s approach is mainly a comparative law approach, but not from the perspective of linguistics or translation studies, etc. His contributions show the significance of legal knowledge in both languages and the importance of proper translation of legal terms. In spite of his enlightening contributions, we should say Chen’s approach is not systematic since he only touches upon isolated legal terms, but the decision-making mechanism behind is not clear. In other words, his contribution to the legal translation theory is very limited.

On the contrary, Song Lei (2005, 2006) probes into the translation of legal terms from the perspective of linguistics, in particular semantics, cultural linguistics and contrastive linguistics, translation theory and also the achievements in comparative law research. Other than the paper introduced in previous sections, he has published a book called Legal Terms’ Discrimination and Translation, in which elaborate and penetrating analysis is made between synonymous English legal terms and their Chinese translations. It is the first book in China of its kind and its importance can never be overlooked.

In The Lack of Equivalent Legal Terms and their Translation Strategies (Song Lei, 2006: 233-237), he analyzed two kinds of legal lexical gaps on the basis of semantic analysis: absolute lexical gap and relative lexical gap, as explained in section 2.3. In the end, Song also mentioned the problem of loss of meaning and its compensation in order to produce similar effect in the target readers.

Liu Weiming (1996) discussed the sources, classification and linguistic characteristics of English legal terms. The English legal words have three major sources: French, Latin and archaic words. And English legal terms can be divided into four types according their meaning structure or semantic scope of application, i.e. ordinary terms, exclusive terms, terms of art and bonowed terms from other disciplines (Liu weiming, 1996: 88-90). Ordinary terms are used both in the legal register and daily register and with the same meaning. Exclusive terms have two kinds of meanings: a legal meaning and an ordinary meaning. We also call them as common words with special meanings in legal context. Terms of art refer to those legal terms used only in the field of law. And borrowed terms come from other related disciplines. Besides, Liu mentioned the importance of context in understanding a legal term.

Xiao Yunshu (2001) mentioned the division between genus and specifics when talking about hyponymy of legal terms.

Chen Wenling (2004) applied Sardevid^s analysis of terminological inconguity and its classification and translation strategies (i.e. functional equivalents, lexical expansion, paraphrase, borrowing and neologism, etc.) to E-C legal term translation.

Zhang Wenjun and Cheng Le (2004) dwelled on the translation of legal terms in cultural contexts. They claimed that the goal of legal term translation is to find equivalents designating the same concept between two or more words, and they can only be decided in specific contexts. The indeterminacy of law reinforced the significance and necessity of contexts in translation* And it is the indeterminacy of legal concept that determines that the precise meaning of legal terms can only be decided in specific legal cultural context in translation. In deciding the meaning of a legal term, our main concern should be on the relation between words and concepts since there is no direct and decisive relation between words and referent. As to legal cultural context, they discussed two main elements, i.e. legal systems and legal branches.

  • ACritique of Present Studies on the Translation of Legal Terms

So far, we can see from above analysis that scholars both ftom comparative law field and linguistic and translation studies have devoted a number of papers and books and chapters to the problem or problems of translation of legal terms from different perspectives. Their researches, so to say, are quite enlightening and insightful in width and depth. However, the approaches of the existing researches are not systematic and theoretical enough in methodology. We can hardly see the whole picture of legal term translating. And repetitive narrations have not been uncommon, which would hinder research vision. The concept of context has been additionally mentioned, but no or

 

19

 

 

Chapter Three

Theoretical Framework of This Research

  • Introduction to Relevance Theory and Translation Studies

The present research is mainly based on the framework of relevance theory (RT), the review of which is a necessity. Also some other viewpoints concerning the pragmatics of translation will be reviewed here, for they can supply some theoretical support to our argument on the translating process of legal lexical terms.

  • Basics of Relevance Theory

Sperber and Wilson propose the Relevance Theory under the title Relevance: Communication and Cognition (1986, 1995). They voice their distinctive viewpoints of communication as ostensive-inferential communication: the addresser produces a stimulus which makes it mutually manifest to the addresser and the addressee that the addresser intends, by means of this stimulus, to make manifest or more manifest to the addressee a set of assumptions. The theory maintains that communication is an ostensive and inferential process involving the addresser’s informative intention and communicative intention, and ostension and inference are two interdependent aspects of linguistic communication. One notion that is of central significance in relevance theory is that of mutuality. All assumptions which are manifest to an individual make up that individuafs cognitive environment. The set of assumptions that are manifest to two individuals is their shared cognitive environment. A shared cognitive environment in which it is manifest which people share it is what Sperber and Wilson call a mutual cognitive environment (1986:41).

Sperber and Wilson define informative intention as the addresser’s intention to

 

make manifest or more manifest to the addressee a set of assumptions; communicative intention as to make mutually manifest to addressee and addresser that the addresser has this informative intention. The communicative intention is itself second-order information: it is fulfilled once the first-order informative intention is recognized. They also delimit a cognitive environment as a set of assumptions which the individual is capable of mentally representing and accepting as true.

Relevance Theory is based on a definition of relevance and two general principles: the Cognitive principle that human cognition tends to be geared to the maximization of relevance; and the Communicative principle that every act of ostensive communication communicates a presumption of its own optimal relevance. The authors have a fully revised presumption of optimal relevance: a) the ostensive stimulus is relevant enough for it to be worth the addressee’s effort to process it; b) the ostensive stimulus is the most relevant one compatible with the addressee’s abilities and preferences.

Relevance is dependent on the interplay of two factors: contextual effects and processing effort. Since both factors are context-dependent, the notion of(relevance? itself is context-dependent, too. Relevance is a comparative notion, because utterances can vary according to the degree of relevance they achieve in some context. Relevance is seen as a property of inputs to cognitive processes. What makes an input relevant is explained in terms of cognitive effect and processing effort. Other things being equal, the greater the cognitive effects are achieved by processing an input, the greater its relevance. However, the processing of the input and the derivation of these effects involve some mental effort. Other things being equal, the smaller the processing effort is required, the greater the relevance.

The fundamental assumption of relevance theory is about human cognition. The assumption is that human cognition is relevance-oriented: people pay attention to information that seems relevant. As a result, it creates an expectation of relevance. It is around this expectation of relevance that the criterion for evaluating possible interpretations for an utterance is built. Different interpretations will be relevant in different ways. Some will not be relevant at all; some will be fairly relevant; some

 

will be very relevant. Which interpretation should the addressee choose? Clearly, it is the one that best satisfies his expectation of relevance.

The most basic assumption of relevance theory is that every aspect of communication and cognition is governed by the search for relevance. Relevance theory claims that the interpretation that satisfies the expectation of relevance is the only one that the audience has any rational basis for choosing. To claim that a choice is rationally justified, however, is not the same as claiming that it is invariably correct, for utterance interpretation is not a simple matter of decoding, but a fallible process of assumption formation and evaluation.

  • Context in Relevance Theory

The success of communication can depend very much on whether the audience uses the right, that is, the addresser-intended context. The use of wrong contextual information can lead to a complete failure of the communication attempt. This in turn raises the question: if the use of right context is so crucial, how can it be achieved? In order to address this question, something needs to be said about the notion of context as understood in relevance theory.

In relevance theory, the notion of ‘context of an utterance5 is ‘a psychological construct, a subset of the hearer’s assumptions about the world’; more specifically, it is ‘the set of premises used in interpreting that utterance5 (Sperber&Wilson, 1986:15). Under this definition, ‘context’ is a very wide notion that can include virtually any phenomenon entertainable by the human mind:

A context in this sense is not limited to information about the immediate physical environment or the immediately preceding utterances: expectations about the future, scientific hypotheses or religious beliefs, anecdotal memories, general cultural assumptions, beliefs about the mental state of speaker, may ail play a role in interpretation (Sperber&Wilson, 1986:15).

Note that this notion of context also includes the text surrounding an utterance, what has sometimes been called the <co-text,. It can be seen from the above saying that the

 

cognitive environment of a person comprises a potentially huge amount of very varied information. It includes information that can be perceived in the physical environment, information that can be retrieved from memory which in itself is a vast store of information, including information derived from preceding utterances plus any cultural or other knowledge stored there, and ftirthermore information that can be inferred from these two sources. Since any of this information could serve as the potential context of an utterance-一the crucial question for successful communication is: how do hearers manage to select the actual, addresser-intended assumptions from among all the assumptions they could use from their cognitive environment? More precisely, the potential context that could be used in the interpretation of a text or utterance is that part of the cognitive environment that is mutually shared between addresser and addressee. The notion of mutual cognitive environment, is defined as follows: uAny shared cognitive environment in which it is manifest which people share it is what we call a mutual cognitive environment” (Sperber and Wilson 1986a: 41).

  • Relevance Principle and Optimal Relevance

The principle of relevance is regarded by relevance theory proponents as the overall governing principle.

What sort of things may be relevant? Intuitively, relevance is a potential property not only of utterances and other observable phenomena, but of thoughts, inemories and conclusions of inferences. In relevance-theoretic terms, any external stimulus or internal representation which provides an input to cognitive processes may be relevant to an individual at some time. According to relevance theory, utterances raise expectations of relevance not because speakers are expected to obey a Co-operative Principle and maxims or some other specifically communicative convention, but because the search for relevance is a basic feature of human cognition, which communicators may exploit.

When is an input relevant? Intuitively, an input (a sight, a sound, an utterance, a

 

memory) is relevant to an individual when it connects with background information he has available to yield conclusions that matter to him: say, by answering a question he had in mind, improving his knowledge on a certain topic, settling a doubt, confirming a suspicion, or correcting a mistaken impression. In relevance-theoretic terms, an input is relevant to an individual when its processing in a context of available assumptions yields a positive cognitive effect. A positive cognitive effect is a worthwhile difference to the individual’s representation of the world – a true conclusion, for example. False conclusions are not worth having. They are cognitive effects, but not positive ones.

The most important type of cognitive effect achieved by processing an input in a context is a contextual implication, a conclusion deducible from the input and the context together, but from neither input nor context alone.

Intuitively, relevance is not just an alkor-none matter but a matter of degree. There is no shortage of potential inputs which might have at least some relevance for us, but we cannot attend to them all. Relevance theory claims that what makes an input worth picking out from the mass of competing stimuli is not just that it is relevant, but that it is more relevant than any alternative input available to us at that time. Intuitively, other things being equal, the more worthwhile conclusions achieved by processing an input, the more relevant it will be. In relevance-theoretic terms, other things being equal, the greater the positive cognitive effects achieved by processing an input, the greater its relevance will be.

Within the framework of RT, the central factor that makes communication succeed is the pursuit of optimal relevance on the part of both the addresser and the addressee. An utterance is optimally relevant (a) when it enables the addressee to find without unnecessary effort the meaning intended by the addresser and (b) when that intended meaning is worth the addressee’s effort, that is, when it provides adequate benefits to the addressee. These benefits are psychological in nature; they consist in modifications of a person’s knowledge and are refened to technically as ‘positive contextual effects’.

It is this claim to optimal relevance which guides the addressee in identifying the

 

addresser-intended context for a given utterance in the following way. It makes him expect that the contextual information needed for the conect interpretation is readily accessible. Hence he begins the interpretation process from information most readily available to him at that time. Furthermore, he will assume that, when combined with the right context, the utterance will yield an interpretation that is worth the effort invested in processing it.

On these assumptions, the addressee will proceed with the interpretation process until he arrives at an interpretation that fulfils both conditions: it is derivable without unnecessary effort and yields adequate contextual effects. In other words, the claim to optimal relevance leads the addressee to accept the first interpretation consistent with the principle of relevance as the right, that is, the addresser-intended interpretation. Thus, the search fbr optimal relevance guides the addressee not only to the addresser-intended context but also to the addresser-intended interpretation. In addition, it should be added here that people are not usually aware of these interpretation processes in their minds; they take place subconsciously.

3.L4 Translator as a Mediator

Hatim and Maison (1990) maintain that translation can be considered as a communicative process which takes place within a social context. u…the translator stands at the centre of the dynamic process of communication, as a mediator between the producer of a source text and whoever are its target language receivers../’ the translator acts first and foremost as a mediator between two parties fbr whom mutual communication might otherwise be problematic. In the process of mediation, he has not only a bilingual ability but also a bi-cultural vision. The translator mediates between cultures (including ideologies, moral systems and socio-political structures), seeking to overcome incompatibilities which stand in the way of transfer of meaning.

But there is the other sense in which the translator is a mediator, in a way, he is a ^privileged reader’ of the source language text. Unlike the ordinary source or target text reader, the translator reads in order to produce, decodes in order to re-encode. In

 

other words, the translator uses as input to the translation process information which would normally be the output, and therefore the end of the reading process.

3.1.5 Pragmatic Equivalent Effect and Translational Validity

He Ziran (1992) advocates that the pragmatic approach to translation can be adopted to help solve the translator’s problem of bringing out absolutely both the intended meaning in the context and the cultural, linguistic aspects of the original message. And this problem can be worked out by striving for the pragmatic equivalent effect between the target and source messages. He also advocates that the pragmatic equivalent effect in translation aims at translating meaning in full, taking full account of differences between the target language and the source language in pragmalinguistics and sociopragmatics.

He Ziran holds that in dealing with cultxire-specific expressions, the pragmatic approach to translation can be summed up in the following:

  1. To render the expression literally, if it is possible to feel or recognize in the context the same intended meaning or force of the message in the source language;
  2. To render the culture-specific expression into a synonymous one accepted by the reader of the target language to retain an equivalent effect of the message in both the source language and the target language;
  3. To translate a culture-specific expression into an expression of general adaptation in the target language, giving up the specific description of the source language, and retaining only the pragmatic equivalent effect of the message;
  4. To translate a culture-specific expression literally, but replenish it with brief interpretations, to reveal the intended meaning. (He Ziran 1992)

From He’s summary, we can see that his idea of pragmatic equivalent effect can guide the translator to make flexible choices in the target language when rendering culture-specific expressions.

Zhao Yanchun (2005:129), based upon Chesterman’s argument that translational success is relative to the degree of convergence between the relevant factors

 

(Chesterman 1997), states that translational success means translational validity, i.e., the degree of realization of intentions of the source text. Zhao Yanchun also designs a formula to furnish our understanding:

TV (translational validity) = Convergence / Divergence

According to this formula, the more the convergence, the less the divergence, thus the higher the translational validity; and vice versa.

If the circumstances allow, the translation should converge to the source text as much as possible. Convergence to the source text means convergence to equivalence. And this is the question of faithfulness: the translation should be as faithful as possible to the source text on the ground that communicative effect has been guaranteed.

  • Translation and Relevance
    • The Relevance-Theoretic Approach to Translation

Gutfs Relevance-Theoretic approach to translation is largely built on relevance theory presented in the last section. Gutt’s approach is not a distinct general translation theory but the exploration of a range of translation phenomena which can be accounted for in a relevance-theoretic framework as well as an attempt to unify these phenomena under a single approach, i.e., that of relevance theory.

Gutt (1991, 2000) makes a serious attempt to work out a new theoretical paradigm. He envisages translation as a cognitive and inferential process, and argues that the object of translation is how the processing faculties of the translator’s mind work. Gutt states that translation is an interpretative use of language. A translation shares in varying measures what is explicit and implicit in the original text. In his paradigm he uses relevance theory to explain translation as a type of interlingual quoting.

Gutt applies the relevance theoretical notion of descriptive and interpretative use to interlingual contexts and describes translation as a secondary communication situation similar to quoting in direct or indirect speech. Direct translation occurs when source and target texts interpretatively resemble each other in terms of communicative clues and semantic representation. Indirect translation occurs when source and target texts descriptively resemble each other only in tenns of function, but not necessarily in terms of communicative clues and semantic representation. Gutt is interested in arriving at a theoretical explanation of direct, rather than indirect, translation.

Gutt’s relevance-theoretic approach to translation has gained a place in field of western translation studies and aroused more and more attention from translation scholars. His pragmatic approach to the translation process focuses on the communicative competence of the participants involved. It therefore seeks to be more than merely descriptive: it claims to be an explanatory theory. Gutt’s approach gives a powerful explanation of how the translator’s mind works in the course of translation.

Finally, according to Gutt, the purpose of translation is to achieve the maximal interpretive resemblance of the original author’s intended intentions in relevant aspects.

  • Translation as Interpretive Resemblance

The crucial factor in interpretive use is that there is a relationship of interpretive resemblance between the original utterance and that used to represent it. Such interpretive resemblance between utterances consists in the sharing of explicatures and implicatures. Thus, the more closely two utterances interpretively resemble each other, the more explicatures or implicatures they share. A direct quotation shows the highest degree of resemblance to the original: it shares all explicatures and implicatures of the original, though only under one important condition, i.e. that the direct quotation is interpreted in the same context as the original.

Being engaged in interpretive use, the translator aims at interpretive resemblance to the original; being constrained by the principle of relevance, he or she will aim at resemblance in those aspects which he or she believes will satisfy the expectation of

 

optimal relevance. In other words, the translation should resemble the original in such a way that it provides adequate contextual effects and it should be formulated in such a manner that intended interpretation can be recovered by the addressees without undue processing effort.

  • The Relevance-Theoretic Model of Translation

The traditional translation theory perceives translation as a process of transcoding the information in one language into,another. This kind of theory and the corresponding viewpoints on translation stem from the code pattern in communication, which has defects in itself because it denies the diflerences of cognitive environment and cognitive abilities between communicators as well as the significance of dynamic inference in communication. Nevertheless, relevance theory seems to offer a feasible and convincing approach to translation on the grounds that it views translation a dynamic inferential process and focused on the cognitive property of translation, with emphasis upon the translator^ communicative competence■”translation competence -that the translator is capable of producing more than one translation, and of choosing the best one in the light of the principle of relevance.

According to relevance theory, the principle of relevance requires the translator “design her translation in such a way that it resembles the original closely in relevant respects55 (Gutt, 2001:46)—in the respect that it adequately relevant to the target language reader and can produce enough contextual effect. As far as how to render is concerned, the translation chosen by the translator should be such that it yields the intended effect without putting the audience to unnecessary effort. As a result, the process of translation is the very process of search for optimal relevance. What the translator strives to achieve and the target language reader expects is optimal relevance. In other words, the translator should view the principle of translation as the pursuit of the optimal relevance between the original information and the target language reader’s cognitive context, or between the original writer’s intentions and the addressee’s expectations.

 

In a relevance-theoretic framework, translation involves a double ostensive-inferential process, which is for more complex than intralingual communication. First, by means of the original utterances, communicative clues and the principle of optimal relevance, the translator tries to work out the original writer’s communicative intention, that is, the assumptions the writer intends to convey. Then, based on his understanding of the original writer’s intention as well as the target language readers, cognitive context and expectation, the translator transmits the original information to achieve relevant correspondence between the translated text and the original text, while the target reader makes an inference to interpret the translation with adequate effect. As a result, the process of translation involves two addressers and two addressees-the original text producer, the translator (as receiver of the original text and producer of the translated text) and the target language reader. It is clear that translation relies heavily upon the participation of the target reader, so the translator must recognize the important role the target language reader plays in translation, which can be ignored under no circumstances. Ignorance of the target language reader factor would lead to ambiguity, confusion, and even failure of communication in translation.

  • Application of the Ostensive-inferential Model of Translation to the Translation of Legal Terms

In this section, we formulate a conceptual framework based on Gutt’s approach to illustrate and explain the translating process of legal terms.

It is a general and rough description of the translating process of legal terms. According to this conceptual framework, the translating process of legal terms, as a complex form of communication, is seen as a double ostensive-inferential process under the guidance of relevance. In the first round of ostensive-inferential process, the legal translator strives to find the most relevant interpretation of the legal terms in the source language text, while in the second inferential-ostensive process the legal translator make an effort to choose the most relevant form of semantic representation from the target language. Both processes are governed by the principle of relevance. In the relevance-theoretic approach to translation, the concept of context or cognitive context is of most importance. The legal translator must choose the right context, otherwise misunderstanding and mistranslation may occur. As for optimal relevance in the translation of legal terms, we mean a positive and coherent interpretation that conforms to the purpose and legal effect of the source text.

  • Procedures of Legal term translation

In legal term translation, the first process the legal translator undergoes is to make inferences from the source text and its contexts what a legal term actually refers to. In the perspective of relevance theory, the legal term constitute a crucial stimulus to the legal translator. Being stimulated, the legal translator must decide what legal concept the legal term refers to in that specific original context.

Since the language of the law consists of technical or legal terms, as well as non-technical terms from ordinary language. Numerous terms used in legal discourse derive their general meaning from ordinary language but are assigned a special meaning by each legal system. Other legal terms are used exclusively in legal discourse. Whereas terms of the exact sciences are monosemous, i.e., each term refers to only one object, legal terms are characterized by polysemy. Normally this does not create a serious problem for legal translators as they should be able to determine the intended meaning from the context. The problem lies in the fact that most legal terms derive their meaning from a particular legal system makes legal terminology inherently incongruent (SarCevic 1997:231).

In the second process, the legal translator communicates with target language receivers. In this process, the legal translator must take the target language receiver’s cognitive context into serious account, and then make a right translation that will produce the best contextual effect (the same legal effect) with the least necessary processing effort.

 

Chapter Four

A Unified Account of the Translation of Legal Terms

  • Translating Legal Terms as a Dynamic Act of Communication

Translation has largely been regarded as a process of transcoding a message from one language into another, whereby the primary goal was to preserve the meaning of the message. Although LSP (language ftr special purpose) theorists now acknowledge that a message consists of both text and intention, they still tend to regard translation as a means of transferring meaning by linguistic transcoding.

In her renowned work New Approach to Legal Translation, Sardevic states that legal translation is no longer regarded as a process of linguistic transcoding but as an act of communication in the mechanism of the law (SarCevic 1997: 55). As such, we must take account of the situational factors constituting the production and reception of the parallel texts of legal instrument. She further states that legal translation is also receiver-oriented. Yet previous studies on legal translation by both linguists and lawyers fail to take account of the receivers. This is all the more surprising because legal communication can be effective only if interation is achieved between text producers and receivers.

According to SarCeviC, communication in the legislative process occurs primarily between two main groups of specialists: lawmakers who make the laws (policymakers, drafters, legislators) and lawyers who interpret and apply the laws (attorneys, administrators, judges). As far as legal translation is concerned, we assume that the receivers of the translation are lawyers of the target language. Here, lawyer refers to the legal profession, including judges, prosecutors, practicing lawyers as well as law teachers and students. Surely, there are other people who may be receivers, but usually those people read and apply the law with the help of lawyers.

In our relevance-theoretic approach to the translation of legal terms, the legal translator “stands at the centre of the dynamic process of communication, as a mediator between the producer of the source legal text and whoever are its target language receivers (Hatim and Mason 1990)”, for the purpose of this thesis, the target language lawyers. In the process of mediation, he is not only an interlingual communicator, but also a cross-cultural communicator, particularly a cross-legal-system communicator. The legal translator mediates between different legal cultures, seeking to overcome incompatibilities which stand in the way of transfer of legal meanings. In other words, the legal translator mediates between two different cognitive contexts.

  • Interpreting the Informative Intention of Legal Terms

The first step in legal term translation is to find the definition or definitions of a legal term. In the context of legal documents, specific definition is one of the chief means by which the precise meaning of a lexical unit is determined and legal certainty is guaranteed. With this end in view, many legal texts, such as statutes, contracts, deeds and wananties, commonly contain clauses, appendices, riders (additional clauses) or schedules (annexes) that provide definitions of the main terms involved or representative lists of the principle items caught by the agreement. A definition usually consists of a ‘generic’ and a ‘specific, feature, as in the following example:

Tort: A civil wrong for which the remedy is commonly a common law action fbr unliquidated damages, and which is not exclusively the breach of a contract, or the breach of a trust or other merely equitable obligation. (Bird 1990: 325)

In this definition, we can distinguish ‘generic’ from ‘accidental9 feature of the type mentioned: Ccivil wrong’ is essential feature of the type, while ‘commonly’ is a restrictive or ‘accidental’ feature of the definition. However, such terms constitute only a small percentage of the legal terms used in authoritative instruments of law, thus making it necessary to fill the gap by proposing more specific criteria for evaluating acceptability (SarCevi61997: 241).

Picking up on this definition, when analyzing the properties of legal concepts, one must take account of both intention and extention. According to Lyons, the intention of a term includes ‘a set of essential properties which determines the applicability of the term’ (1977:159), On the other hand, the extention of a term is ‘the class of the things to which it is correctly applied5 (Lyons 1977:158). In legal methodology, the extention also includes types or classes of transaction, cases, situations, or proceedings.

Since the number of characteristics constituting the intention of general terms is relatively small, it is not uncommon for the general terms of different legal systems to have the same intention but different extentions. However, it may occur that the extention is the same but the intention differs. Especially in criminal law, it is possible that the same case or cases can be subsumed under different offenses in different legal systems.

The distinction we just made between intensive and extensive definition is plainly applicable to any specialist language and to any attempt to use words precisely. Connotation and denotation, on the other hand, might be thought more naturally in linguistic contexts concerned with evaluation and subjective description, such as literature, sociology, economics, journalism and so on. However, as is known to all learners of legal language, the language of the law is made up of three basic types of vocabulary: technical, semi-technical and non-technical. Among these three types, the technical type is, by definition, the least open to connotative meaning, while the other types are more prone to connotative meaning the closer they approximate non-technical or everyday speech.

Since such information is rarely included in monolingual dictionaries (that is why we say dictionaries may frequently tum out to be no use), the best way to establish the constituent characteristics of concepts is to examine all the original sources of the law of the particular legal systems, including legislation, doctrine, case law, and customary law (L.J. Constantinesco 1974:52). However, even then there is no guarantee that one will find ready definitions. While it is not surprising that indefinite or vague concepts are inaccurately defined or not defined at all, the fact that there are often no ready definitions of definite concepts is rather disquieting for terminologist (Sarfievi61997: 240). Although legislation is the primary source of such definitions, the number of statutory definitions is relatively small. And what’s more, the same term may be defined differently in different statutes or even in the same statute.

Moreover, statutory definitions are subject to change. As a reflection of social reality, the lexicon of a language is in constant flux. New words are created to express new objects and relations, and the meanings of old words change and/or take on additional meanings. So, translators must take care to use terms which aptly express the intended meaning of the source text at the time it was produced. Serious consequences can sometimes arise if a translator neglects to take account of the evolution of legal terminology. Translators cannot disregard the fact that legal terms are subject to change in that the change in statutory definition may come out as a result of legislative reform, or redefined by the courts, especially in common law systems, or influenced by opinions of legal scholars in continental European systems. And in exceptional cases, decisions of international courts can compel national legislatures to revise rules and definitions to bring them in line with regional or international treaties and conventions to which the States are parties.

On the other hand, it seems obvious that each legal discourse has its own specificity with cultural, political, social and historical events, which deeply influenced and still influence the legal language. Indeed, statutes and/or cases are mainly connected with ethical, philosophical, cultural and even religiously reflections which are specific to each culture, to each nation. Thus, a gap occurs between two relevant legal terms from two languages, and even between two legal systems within the same language. The result is the impossibility of translating word to word; for the term may not exist in the target language, or the two terms in two languages may be incongruent. As explained by Warnkc (1992:17):

Words have the meanings they have in a language because of their relations to other words, because of their contrasts and affinities and because of the thick historical and social vocabulary they help to constitute and to which they belong. But they also have the meanings they have because of their relations to contexts of possible action and social practice. At the same time, the meaning of these actions and practices themselves depend upon the availability of a certain vocabulary of concepts and ideas.

Since the language of the law put extreme emphasis on precision, some functional equivalents can be misleading to the point that they encourage litigation. Thus, a functional equivalent should not be used until its acceptability has been proven. For this purpose in view, legal translators must compare the target and source concepts to establish their degree of equivalence. In this regard, SardevicJ (1997:238) proposes the following categoried equivalence for translators in the field of law: near equivalence, partial equivalence, and non-equivalence, each of which includes both intersection and inclusion,

While some fiinctional equvalents are always acceptable (near equivalence) or never acceptable (non-equivalence), most functional equivalents fall into the category of of partial equivalence. Under such circunstances, the acceptability of a functional equivalent usually depends on context thus requiring the translator to analyze each textual situation before deciding whether a functional quivalent is acceptable in that particular context (Arntz 1993:17), In determing the acceptability of a functional equivalent, the translator should take account of the structure/classification, scope of application, and legal effects of both the functional equivalent and its source term. Finally, since the legal translators goal is to produce a text that will promote uniform interpretaion and application of the single instrument, he or she must always take account of the situational factors of reception of the particular communication process, that is, how the courts are likely to interprete the equivalent and how this will affect the application of the provision and the text as a whole. In the end, this may be the overriding consideration in the translator’s decision-making process.

Due to the inherent indeterminacy and incongruency of legal terms, their actual meanings or communicative intentions can only be decided in specific contexts. This is the theme of the next section.

  • Recognizing Contexts: Interpretation of the Communicative Intention
    • Classification of Contexts Based on Relevance Theory

Expert legal translators know that they often need more than just the information explicitly present in the source text. Indeed, online and paper dictionaries and glossaries, legal expert’s own knowledge of the subject and the cultural implications of textual references are all elements which contribute to better master the source text and so to translate in the best way possible the source text into the target language.

Thus anyone spends time studying legal language soon comes to appreciate the complexity and even uncertainty inherent in any effort to translate a legal text. While in some contexts, such as poetry, complexity and uncertainty are valued, when it comes to disputes about legal texts and their translations the target language through some kind of interpretation, these features are often a cause of dismay or disappointment.

Consequently, the two requirements shared by legal translation and its technical drafting are:

  1. The ability to retrieve information from any kind of specialized source text that is sufficiently technical and viable (be they doctrines, statutes, cases or even clippings);
  2. The ability to process information in such a way as to produce precise and technical text: a somewhat ‘perfect’ copy of the original (Wagner 2003:178).

The success of communication can depend very much on whether the audience uses the right context, that is, the addresser-intended context. The use of wrong contextual information may lead to a complete failure of the communication attempt. This in turn raises the question: if the use of right context is so crucial, how can it be achieved? In order to address this question, something needs to be said about the notion of context as understood in relevance theory.

In relevance theory, the notion of the cognitive environment of a person comprises a potentially huge amount of varied information. It includes information that can be perceived in the physical environment, information that can be retrieved from memory which in itself is a vast store of information, including information derived from preceding utterances plus any cultural or other knowledge stored there, and furthermore information that can be inferred from these two sources.

As far as law is concerned, context may conveniently be brought under three heads. In the first place, there is what the pragmatists call the context of situation, ie, the immediate physical and temporal environment in which the communication takes place. The form of this may be oral or written. There may be one or more receivers and oral communication may take place whether or not the receivers are in the physical presence of the speaker and whether or not the two are contemporaries in both cases of oral and written communication. In our case of legal translation, it is important to sense the time when a legal text is written or made because the definitions of legal terms are subject to change. Secondly, there is the immediate verbal environment in which the utterance is situated, i.e., the words or sentences that precede and follow it in the same text. In legal texts, verbal context may also be other related legal documents dwelling on the same or related issues. This kind of context is sometimes called ‘co・text’ for distinction. The third sense is extralinguistic or socio-cultural and consists of the habits, expectations and conventions characteristic of the society concerned, which in our case means the world of lawyers and the law, with its customs, its practice, its assumptions, its values and its procedural routines. These are learned by the usual cognitive processes of study, observation, training and interaction, in a word, by experience.

For translators of legal texts, the co-text is by far the most immediate and important. However, it is not sufficient for fully understanding of the text in question because the meaning of the same legal term may differ from legal system to legal system (and from country to country, and even state to state within the same legal system), from one legal branch to another, from time to time, and furthermore they may not be correctly defined and subject to change due to the interpretations of the courts or opinions of legal scholars.

In fact, to use legal language accurately, legal translators must understand all the mechanisms of the law, characteristics of legal language, and the way legal texts are drafted, interpreted and applied in practice.

  • Legal Culture

The third type of context, i.e., extralinguistic context or socio-cultural context can further be divided into legal knowledge and legal culture. Clearly, legal culture can be seen as a constituent part of legal knowledge. However, it is helpful to elaborate on legal culture as an independent factor in legal term translation. For the purpose of this research, we create a new concept, that is, legal cultural context.

Legal cultural context consists of the habits, expectations and conventions characteristic of the world of lawyers and the law, with its customs, its practice, its assumptions, its values and its procedural routines. These are learned by the usual cognitive processes of study, observation, training and interaction, in a word, by experience.

In deciding the intended meaning of legal terms in translation, the main 也ctors of legal cultural context are legal system and legal branches.

Legal system refers to the legal regimen of a country or a state (such as the case of the U.S.) consisting of (1) a written or oral constitution, (2) primary legislation (statutes) enacted by the legislative body established by the constitution, (3) subsidiary legislation (bylaws) made by person or bodies authorized by the primary legislation to do so, (4) customs applied by the courts on the basis of traditional practices, and (5) principles or practices of civil, common, Roman, or other code of law.

The legal systems of modem states generally consist of four major elements: a code of laws, a court system, a police system and prisons. There are often other ancillary elements such as law firms and probationary services (Gibbons 2003:2). All theses elements operate within the legal system of the particular country.

Legal branches are the result of a systemic division of the laws of a particular country. The same legal term may have different meanings in different legal branches. And in translation, the same source legal term may refer to two or more different concepts in the target legal language, and vice versa. For example, estoppel means “禁止翻供”in criminal procedure and “不得反悔”in contract law; fine means “罚 款“in tort or civil law and “罚金” in criminal law.

  • The Receivers of the Translated Legal Text

Since the legal translator’s goal is to produce a text that will promote uniform interpretaion and application of the single instrument, he or she must always take account of the situational factors of reception of the particular communication process, that is, how the courts are likely to interprete the equivalent and how this will affect the application of the provision and the text as a whole.

Just as Sardevid has clearly commented, scholars who focus their attention primarily on language and the linguistic elements of the text tend to ignore the fact that, like other areas of translation, legal translation is also receiver-oriented (1997:55). While previous studies on legal translation by both linguists and lawyers fail to take account of the receivers, the relevance-theoretic approach to legal term translation put much emphasis on the receivers.

Since translating means producing a functional text in a linguaculture target text that is needed for specific communicative purposes by processing the information given in a previous text in a different linguaculture source text. Consequently, the comparison of legal texts and terms from English to Chinese, and vice versa, involves a theory of equivalence. In relevance theoretic perspective, this type of equivance is highly pragmatic, i.e., to produce in the target text the same pragmatic equivalent effect as the source text. And in the context of the law, this same pragmatic equivalent effect primarily lies in producing the same legal effect.

In translation as a act of communication, the great difference or change in communicative environment or cognitive environment between two linguacultures, leads to hinderances and pitfalls in communication. Difference in the two cognitive environments leads to divergence of informative intention and communicative intention, i.e., communicative failure.

Therefore, it is crucial to take the receivers or addressees into serious account, and adopt correct compensating strategies to rebuild relevance in the target text. In other words, the legal translator must be also familiarize himself with the target legal system, with its mechanism of law, the constituent properties of legal term, and the way legal texts are drafted, interpreted and applied in practice.

In legal translation, the addressees or text receivers are a little bit different from that of literary translation. While in literary translation, the text receivers can be any person who can read the language. However, in legal translation, the proper addressees or receivers are lawyers, including judges, prosecutors, practising lawyers as well as law teachers and students. In other words, Legal texts are intended to be read and applied by lawyers, rather than common people outside the legal profession.

  • Ideal Profile of Legal Translators

As explained throughout this thesis, the translator has to constantly make choices to decide which terms are the most appropriate in the target text. It simply means that the legal translator is like a strategist, or a mediator (Hatim and Mason 1990): he has to adapt the most suitable strategy and technique to the requirement of the source text and so ‘fit and understandable, into the target language (Wagner 2003:191).

All the responsibility fbr a good expert communication rests on the skills of translators. As a result, it is highly advisable that a good or qualified legal terms translator should possess:

—extensive knowledge of both the source and the target legal systems (i.e. comparative law) and the ability to compare the terminologies in both the source language and the target language,

-an adequate amount of expertise in the particular subject matter in both languages,

一adequate management of documentary sources (dictionaries, glossaries, term banks, standards, classifications, thesauruses etc.) (Wagner 2003:191),

-competency in both translation and law, especially in the subject field (not only in-depth knowledge of legal terminology, but also a thorough understanding of legal reasoning and the ability to solve legal problems, to analyze legal texts, and to foresee how a text will be interpreted and applied by the courts.) (Sardevic 1997:113).

Thus, the legal translator should constantly undergo training throughout his or her career to be best able to translate and best able to use all the innovative tools which might be at his or her disposal.

  • Translation Techniques for Legal Lexical Gaps

Legal translation is regarded by some researchers as one of the most challenging endeavors, “combing the inventiveness of literary translation with the terminological precision of technical translation?, (Harvey 2002). It is mainly due to the specificity of legal language and, in particular, the system-bound nature of legal terminology and differences between the common law and civil law systems. Terms are defined by Sager as lexical items representing discrete concepts that form the knowledge system of a given subject field; hence, terms are 4depositories of knowledge5 (2001: 259). This is especially evident in the legal field where terms are grounded in country-specific legal systems whose knowledge basis is defined in national legislation. A legal term is a depository of national legal knowledge and this knowledge is part of its meaning. As a result, legal terms show a certain degree of asymmetry between national systems, which inevitably poses a major translation problem. As explained in chapter 2, there are several degrees of terminological incongruity: identical concepts or near equivalence which is very rare, partial equivalence, and conceptual voids or non-equivalence. The degree of incongruity may be measured as differences between essential and accidental features; it is also explained with reference to intersection and inclusion (Sardevid 1997: 237-8). And in order to determine the acceptability of a functional equivalent, one must at the same time take those factors into serious consideration, i.e. concept structure or classification, scope of application, legal effect, and even the role of the judiciary.

The techniques of dealing with incongruous concepts may be placed along the continuum between two extremes: domesticating and fbreignizing strategies. Domesticating involves assimilation to the TL culture and is intended to ensure immediate comprehension. By contrast, fbreignizing seeks to evoke a sense of the foreign by sending the reader abroad; as a result, it may pose a risk of incomprehension. Similar approaches are found in legal translation. Domesticating strategies include lexical expansion, the use of neutral words, paraphrasing, free translation and the use of a functional equivalent. Foreignizing strategies include transcription or borrowing, naturalization (adaptation of spelling), and literal translation with or without a gloss. Whatever translation technique is employed, the guiding principle lies in the optimal relevance.

  • Borrowings and Naturalizations

Borrowings and naturalizations should be avoided whenever an acceptable equivalent already exists in the target legal system. These two translation techniques usually only confined to render some proper names and case names, such as UCC (Uniform Commercial Code), WTO (World Trade Organization), Sherman v. United States (356 U.S. 369 (1958)) and Anti-trust law “反托拉斯法”.

These two techniques are used in cases in which SL terms defy translation in the strict, narrow sense because nothing truly comparable to the corresponding concept exists in the TL culture and a literal translation makes no sense. In other words, these techniques are employed to render a source term in case of conceptual voids or non-equivalence.

462 Literal Translation

Literal equivalent is another fbreignizing strategy, also known as a formal equivalent, word-for-word translation, caique or loan translation. The acceptability of literal translation depends on their type. Some do not correspond to any TL concept but are sufficiently transparent in meaning, such as statutory rape, or Family Division and Queen,s Bench Division, which are rendered respectively as “法定强奸罪”,“家 事法庭” and “女王座法庭It is possible that a literal equivalent will concurrently be a functional equivalent (Sardevic 1997:259). Evidently, literal equivalents are not acceptable when they are false friends (refer to different TL concept) or are virtually meaningless, such as the translation of yellow dog contract (see below). Literal equivalents should be used only when there is no acceptable functional equivalent.

  • Lexical Expansion

As for partial equivalence, a common strategy is the use of lexical expansion to broaden or delimit the meaning of the source term, thus making it correspond with a narrower or broader functional equivalent. A typical example is that of attempt, in criminal law, attempt refers to any act that is more than merely preparatory to the intended commission of a crime; this act is itself a crime. For example, shooting at someone but missing couJd be attempted murder, but merely buying a revolver would not. One may be guilty of attempting to commit a crime that proves impossible to commit, e.g. attempted theft from an empty handbag. If we render it as ‘,巳罪未遂”, it is not sufficient to communicate its true meaning (even though they are quite similar in meaning), since “犯罪未遂” in Chinese criminal law is a situation or circumstance for sentencing. It is attached to a named type of crime, but does not constitute a crime itself. Thus, there is essential difference between these two terms, which make it suffice to make a difference in translation. So, it is rendered by some scholars as ”企 图犯罪罪,图谋犯罪罪” by adding a suffix “罪

  • Neutral Term

Another technique for translating in case of partial equivalence is the use of a neutral term, i.e, non-technical terms. The reason is that neutral terms are broader in meaning than technical terms. The translation of libel and slander are typical examples of this type of technique. As explained in Oxford Dictionary of Law, libel is “a defamatory statement made in permanent form, such as writing, pictures, or film. Radio, and broadcasts, public performance of plays, and statements posted on the Internet are treated as being made in permanent form for the purposes of the law of defamation. A libel is actionable in tort without proof that its publication has caused special damage (actual financial or material loss) to the person defamed” (Martin 2003: 247). In addition, libel can also be a crime. In this case, it is termed as criminal libel. While libel is written defamation, slander is an oral one. According to its definition in the same dictionary, slander is “a defamatory statement made by such means as spoken words or gestures, i.e. not in permanent form. Generally slander is only actionable on proof that its publication has caused special damage (actual financial or material loss), not merely loss of reputation. Proof of special damage is not necessary when the slander implies the commission of a criminal offense punishable by imprisonment, infection with a contagious disease, unchastity in a woman, or is calculated to disparage a person in his office, business, trade, or professionn(ibid: 465). As we can see, both libel and slander can be torts or criminal offences. And defamation is their common super ordinate. Defamation is an attack upon the reputation of another. It encompasses both libel and slander. However, in Scots law libel and slander are equivalent to (and thus interchangeable with) defamation (Gamer 1995:255), In Chinese, there is no any tort law term for defamation or libel or slander. Only in criminal law of China, there is a partially equivalent of defamation (libel and slander), i.e. “诽谤罪 According to Chinese law, “诽谤罪,是指故意捏造并散步虚构的事实,以损害他人人格、名誉,情节严重 的行为。”In other words, “诽谤罪”corresponds with the combination of libel and slander when they become criminal offences. Therefore, we may translate libel and slander neutral terms “书面诽谤”and “口头诽谤” without a suffix “罪Vice versa, we may translate “诽谤罪” into criminal libel or slander, as well as criminal defamation.

  • Functional Equivalent

A third technique for translation in case of a partial equivalence is that of functional equivalence. A functional equivalent, in Sarievid^ opinion, is a term designating a concept or institution of the target legal system having the same function as a particular concept of the source legal system (SarCevii 1997: 236), A functional equivalent is acceptable if it does not cause any confusion or is not misleading. For instance, there are two basic types of confinement institutions in America: prison and jail. A jail is usually used to hold persons either convicted of misdemeanors (minor crimes) or persons awaiting trial or as luck-up for intoxicated and disorderly persons (Black’s Law Dictionary with Pronunciations 1991: 580). It is usually run by a county or municipality. A prison is a state or federal facility in which people convicted of serious crimes and given long sentences are incarcerated (Random House Webster*s Dictionary of the Law 2000: 340). And accordingly, we have “看守所,拘役所” and “监狱”,which have the roughly same function with jail and prison.

  • Paraphrasing

Another domesticating strategy is paraphrasing. Paraphrasing is a strategy used to spell out the intended meaning in neutral language that can be understood by lawyers in the target legal system, such as yellow dog contract. If we render it literally as “黄狗合同”,it does not make any sense as to its true meaning. According to A Dictionary of Modem Legal Usage, yellow-dog contract is “an employment contract forbidden membership in a labor union” (Gamer 1995: 947). So some researcher translated it as ”禁止员工参加工会的合pl”.

  • Free Translation

The last type of domesticating strategy is free translation. This is also a technique used in the case of non-equivalence and when a literal equivalent is insufficient in conveying the true meaning of the source term, such as the rendering of entrapment, as explained in Wikipedia, a free online encyclopedia:

Entrapment is the act of a law enforcement agent in inducing a person to commit an offence which the person would not have, or was unlikely to have, otherwise committed. (http://en.wikipedia.org/wiki/Entrapment).

If we render this term into Chinese as “诱陷;欺骗”, the target readers will still feel confused. So some researcher has translated it by free translation as “官诱民犯”, which is more transparent in conveying its true legal meaning, and immediate comprehension is ensured.

  • Constraints on Legal Lexical Gaps Translation

However, unlike literary translation where the translators may vary from time to time in their translations of the same SL expression in terms both of translation strategies and dictions, in the field of legal term translation, such inventiveness is constrained by two unique elements, namely, consistency and conventionality.

The first constraint is consistency. This means that the translation of a term should be in adherence to an existing translation in an authoritative text, although the translator believes that his or her translation may be better.

Another constraint on legal term translation is conventionality. This refers to cases in which a translated term is theoretically considered as improper, but it has been used again and again so as to make it a well-accepted term among lawyers, such as “plea bargaining” and ^intellectual property”,Plea bargaining is “an agreement between the prosecution and the defense by which the accused changes his plea from not guilty to guilty in return fbr an offer by the prosecution (for example, to drop a more serious charge against the accused) or when the judge has informally let it be known that he will minimize the sentence if the accused pleas guilty. Any negotiations taking place between the judge and defense counsel must be in the presence of the prosecuting counsel: the accused is not a party to the negotiations. The accused must be allowed to make up his own mind freely about the proposals” (Martin 2003:368). And the well-known conventional translation is “辩诉交易。 Evidently, there is no equivalent or any functional equivalent in Chinese law for this term. Since plea-bargaining can also refer to the process, Chen zhongcheng (1998: 102-106) translated it by paraphrasing as “关于(被告如何)认罪与(司法当局如何)处 置的谈判” which is better in conveying the true meaning. However, “辩诉交易’is well-internalized among Chinese legal scholars.

 

Chapter Five
Conclusion

  • Major Findings of this Dissertation

It is obvious that each legal discourse has its own specificity with cultural, political, social and historical events, which deeply influenced and still influence the legal language. Indeed, statutes and cases are mainly connected with ethical, philosophical, cultural and even religious reflections which are specific to each culture, to each nation; and so which seem difficult to express and translate faithfully in the TT. Furthermore, as legal discourse evolves various circumstances, legal translation is all the more complex as the SL and TL are never in the same space and time, and under the same circumstances.

Legal terms or terms of art, usually refer to objects, relationships, acts, and procedures that are peculiar to a particular national legal system. The product of different institutions, history, culture, and sometimes socio-economic principles, each legal system has its own legal reality and thus its own conceptual system and even knowledge structure.

In legal translation, a problem arises from the very beginning if the translator aims at finding the exact terminological equivalent. It is mainly due to the inherent incongruency of legal terms (i.e. legal lexical gaps) between legal systems. The legal terminologies of different legal systems are, for the most part, conceptually incongruent. And precision is one of the most main pursuits of legal language. The attribution of an improper equivalent to a legal term can be the cause of ambiguities, confusion and all types of miscomprehension due to the effect the term in question produces in the reader of the translated text.

In legal term translation practice, mistranslation or improper translations are not uncommon due to a lack of guidance of proper theories, principles, and methods.

 

Up to now, the issue of legal term translation between Chinese and English has drawn much attention. A large party of studies is on the causes, classification and specific translation methods of lexical gap of legal terms from the perspectives of cultural linguistics, semantics, comparative law, equivalence and so on. Few, if any, have ever tried to study the cognitive process of legal translators in translating, i.e. what happens to the translator in his or her decision-making process. Not to mention what kind of principles or guidance can be followed by translators. The present study attempts to examine the translator’s mental process in the translating of legal terms from the perspective of relevance principle in order to provide a systematic explanation to the phenomenon at issue.

For this purpose, researches ih relevance theory and translation studies are employed to facilitate the analysis of the process of legal term translation. And a relevance-theoretic approach to translation of legal lexical gaps is formulated. In this paradigm, the translation of legal lexical gaps is a relevance-seeking double ostensive-inferential process. The translator searches for relevance in the source cognitive environment and makes dynamic choices in the target cognitive environment. In the process, the legal translator mobilizes his cognitive resources available and develops his subjectivity to search for the optimal relevance in the source cognitive environment and to make linguistic choices in the target cognitive environment. The translator’s linguistic choices and translation strategies must focus on the conveying the author’s intentions without putting the audience to unnecessary processing efforts in achieving the contextual effects in the interpretation intended by the author.

However, the dynamic choices of the translator are not without constraints. There are two constraints on his or her choices: consistency and conventionality. Consistency means that the translation of a legal term should be in adherence to an existing version in authoritative texts, although the translator believes that his or her translation may be better. Conventionality refers to cases in which a translated term is theoretically considered as improper, but it has been used again and again so that it is well-internalized among the target language lawyers.

 

  • Limitations of this Dissertation and Suggestions for Further

Study

In spite of these findings, this dissertation also has its own limitations. Since on one hand, the major research methodology employed in this dissertation is theoretical and explanatory rather than an empirical one, and because of time limitation, this thesis is only a rough sketch of the process of legal lexical terms translation.

On the other hand, bilingual legislation (where both versions are of the same legal effect) practice seems to have not been implemented in mainland China. While in the Special Administrative Region of Hongkong, the first bilingual legislation had been promulgated as earlier as on April 13, 1989. However, the situation in Hongkong is quite different from that of mainland China in that Hongkong is a bilingual society, where both languages (Chinese and English) are situated within the same legal system so that both language terms can be assigned the same legal meaning and applied and interpreted in the same way, while in mainland China, Chinese legal terms refer to primarily continental law concepts and English legal terms refers common law concepts. In other words, Chinese legal terms are defined and applied in accordance with common law. Therefore, it is hardly possible to borrow research achievements in this respect.

In addition, the problem of contexts in the field of law has not been investigated in greater detail with empirical examples and data. And this may be a good topic fbr further study.

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