法律翻译的准确性 On Precision of Legal Translation

法律翻译的准确性

On Precision of Legal Translation

Abstract

With China’s access to the WTO and the accelerating process of the globalization, it appears that China’s legal translation and legal translation studies lag behind the western countries, which is manifested not only in the degree to which legal translation and legal translation studies have attracted attention but also in the systematic theoretical study and guidelines for legal translation. In the light of such worrying situation, I am motivated to conduct the study within the theoretical framework of Skopostheorie.

This research, according to the descriptive translation studies, is made with the top-down functionally-oriented methodology, differing fcom the conventional bottom-up linguistically-oriented approach. Through integrating the macro-level translation Skopos and text function with the micro-level manipulation of syntactic structures and lexical expressions, this study mirrors and verifies the reasonableness and feasibility of Skopostheorie as the guidelines for legal translation.

Precision is the symbol of legal language’s spirit and vitality, thus precision has, accordingly, become the ultimate aim of legal translation. Or rather, the precise legal effects of the target text determine all the means employed in the legal translation process. In such case, the systematic study in this thesis has proved that Skopostheorie can help legal translators free themselves from the restraints of the conventional translation approaches, facilitate the legal transnational action and achieve the precise legal effects of the target text.

 

Contents

Declaration i

Abstract ii

Acknowledgements iii

  • Introduction 1
    • Objectives of the Study 1
    • Rough Structure 5
  • Methodology of the Study 7
  • Review of the Prior Related Research 9
    • The History of the Functionalist Translation Theory 9
      • The Concept of Equivalence 9
      • The Formation of the Functionalist Translation Theory 12
    • The Prior Study of Legal Translation 15
  • The Profile of Skopostheorie 18
    • Introduction 18
    • The Theoretical Foundation of Skopostheorie 18
    • Three Rules of Skopostheorie 24
    • Adequacy – a Fresh Assessment Criterion of Translation 26
    • Loyalty – a New Moral Translation Principle 27
  • Legal Language and Legal Translation 30
    • About Lega! Language 30
      • The History of Legal Language 30
      • Characteristics of Legal Language 32
    • About Legal Translation 35
      • Characteristics of Legal Translation 35
      • Qualifications of Legal Translators 37
    • Application of Skopostheorieto Legal Translation 39
      • Legal Translation Action — the Purposeful Communicative Activity 39
        • Varied Roles and Functions in the Translation Process 39
        • Translation Skoposand Translation Brief 41
      • Achieving Precision — Realizing the Legal Effects of the Target Text 43

621 Aspect of Text 43

  • Typology and Function of Legal Text 43
  • Coherence of Legal Text 46

622 Aspect of Syntax 49

  • One-Sentence Structure 49
  • Punctuation 59

6.2.3 Aspect of Lexis 62

  • Terminology 62
  • Modals shall/may 65
  • Archaism: here/there/where/plusprep(s) 68
  • Nominalisation 71

6.3 Exercise of the Loyalty Principle 72

Chapter 7 Conclusion and Discussion 74

  • Conclusion 74
  • Further Discussion 75

Bibliography 77

 

Chapter 1 Introduction

  • Objectives of the Study

We should, indeed, cheer up for our great history of legal language (dated from the Xia Dynasty, 2000 BC), but we also have to feel embanassed for the short period of legal translation in China. We can find that, from the Chinese history of translation studies (cf. Ma, 1998:369-372; Chen5 2000:90-94), before the founding of New China, the rulers’ closed-door policy retarded disastrously legal translation and legal translation studies. It is after the founding of New China that legal translation and legal translation studies have gradually been revitalized and highlighted. Yet, in fact, we cannot ignore that, with China?s access to the WTO and the acceleration of the globalization, it is necessary and urgent to focus much more attention on legal translation and employ the scientific, systematic and practical translation theories as the guidelines for legal translation. Notwithstanding we have gained much in legal translation and its studies, we should be aware that achievements and imperfections coexist when we have obtained the experiences and lessons in legal translation and its studies.

Why do we have to focus much attention on legal translation and its studies? Susan Sarcevic, an expert in legal translation studies, defines the significance of legal translation as follows:

In our era of multilingualism, translation plays a major role as a medium of communication in municipal, supranational, and international law. Translations of legal texts lead to legal effects and may even induce peace or prompt a war. […] As a result of the increasing demand for the free movement of people, goods, and capital, legal translation affects all of us in one way or another. International trade, for example, could not function without legal translation (Sarcevic, 1997:1).

 

Meanwhile, she also expresses her worries on legal translation studies:

Although translations of legal document are among the oldest and most important in the world, legal translation has long been neglected in both translation and legal studies. Far from being recognized as an independent discipline, legal translation is regarded by translation theorists merely as one of the many subject areas of special-purpose translation, a branch of translation studies often snubbed for its alleged inferiority. […] Compared with the immense quantity of legal translations produced daily, the literature on legal translation is meager indeed. As a result of the importance attached to the letter of the law, most studies are devoted to questions of terminology while textual and pragmatic considerations tend to be ignored (Sarcevic, 1997:1-2).

Hopefully, some books and papers have come out on legal translation, but ■ most of them have dealt with too much in the traditional linguistic “bottom.up” approach or prescribed some new principles with different concepts originating from literal and free translation lines. These studies intend to make s-^me researches in terminology and syntactic structures, which tend to invplve translators into the confinement of micro-level study or hamper translators’ initiatives in translational actions. This apparently reveals the truth that many translators have been misunderstanding the purpose of translation studies and the function of translation theories and have been disorientating themselves in translation studies and even in perfecting translation science. Susan Bassnett argues that “The purpose of translation theory, then, is to reach an understanding of the processes undertaken in the act of translation and, not, as is so commonly misunderstood, to provide a set of norms for effecting the perfect translation (Bassnett, 1991:37″‘

When we have decided to conduct the systematic study of legal translation, we cannot ignore the essence of legal language. According to some scholars, precision is the symbol of legal language’s spirit and vitality and also the basic style of legal language (Pan, 1997:8); precision is a cardinal feature of legal language (Du, 2001:305). Apparently, precision is regarded as the core of legal language. As we know, translation can bridge the communication gaps between the peoples with different languages and cultures, which also holds true for legal translation. Exactly speaking, legal translation aims at achieving the legal purposeful communicative function through translational precision. The definition of precision in dictionaries may help us understand its significance in legal translation. The etymology of precision is the word precise, it is sufficient for us to comprehend the essence of precision by consulting precise in the dictionaries:

  • used to emphasize that something happens exactly in a particular way or that you are describing something correctly and exactly;

(Longman Dictionary of Contemporary English, 1995:1106)

  • stated clearly and accurately;

(Oxford Advanced Learner’s English-Chinese Dictionary, 1997:1155) ,

  • conforming strictly to an exact pattern or standard: shaped, arranged or performed with minute conformity to a pattern.

(Webster^ Third New International Dictionary, 1961:1784)

From the above definitions of precisey we can explore the dynamic features of precision in legal translation, referring to these three dimensions in legal translation: process, result and mode. To our surprise, these three dimensions of precision coincide with those three senses of the notion of skopos in the functionalist translation theory–Skopostheorie, The notion of skopos may refer to:

  • the translation process, and hence the goal of this process;
  • the translation result, and hence the function of the translatum;
  • the translation mode, and hence the intention of this mode.

(Zhong, 2001:165)

This discovery has brought me much curiosity and interest in legal translation studies, the close relationship between the precision of legal translation and Skopostheorie urges me to make a further and systematic study in this respect. Skopostheohe plays a great role in the functionalist translation theory. 4Functionalism9 means focusing on the function or functions of texts and translations (Nord, 2001: 1), which meets the precise requirements of legal translation. No doubt that a necessary overview of Skopostheorie can facilitate the further study in the thesis. Three basic rules exist in Skopostheorie, which are the Skopos rule, the coherence rule and the fidelity rule. Among them, the Skopos rule is the top-ranking one. This rule is intended to solve the eternal dilemmas of free vs faithful translation, dynamic vs formal equivalence, good interpreters vs slavish translation, and so on (Nord, 2001:29). In Skopostheorie translators employ adequacy as the assessment criterion of translation instead of equivalence. In the Skopostheorie the functional element is dominant, […] This Vermeer opposes to the static and absolute attitude to text and translation which debates on what a text “is”; his approach is relative to the individual situation and hence dynamic (Snell-Homby,2001: 46). It (Skopostheorie) focuses the study on the selections of varied Skopos, which can for sure remedy the defects in the conventional translation studies and vitalize the multidisciplinary translation studies in a fresh perspective (Fan and Liu, 2002:25-26).

When we have briefly gained the knowledge of legal translation and legal translation studies and Skopostheorie, we would like to explore the approaches in which we can achieve the precise effects of the target text in legal translation and answer the question whether we can employ the Skopostheorie as the guidelines for legal translation.

1.2 Structure of the Study

This thesis contains seven chapters and the reference part as follows:

  • Introduction;
  • Methodology of the study;
  • Review of the prior related research;
  • The profile of Skopostheorie ,
  • Legal language and legal translation;
  • Application of Skopostheorieto legal translation;
  • Conclusion and discussion;
  • Bibliography

Chapter 1 gives a general introduction and analysis of the motivations and objectives of the study. Chapter 2 elucidates the study methodology employed in the thesis. In Chapter 3, it makes a thorough review over the prior research related to the functionalist translation theory and legal translation studies. The detailed

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analysis can help facilitate the understanding of Skopostheorie and legal translation studies in the following chapters. Chapter 4 establishes the theoretical framework of the thesis by delving into Skopostheorie, which lays the sound foundation fbr the further study. Chapter 5 illustrates the history and characteristics of legal language and legal translation, which can help us gain a better knowledge of legal translation and legal translation studies and thus ease the difficulty in the further research.

Chapter 6 elaborates the application of Skopostheorie to legal translation and probes how we can achieve the precision in legal translation within the theoretical framework of Skopostheorie so as to realize the legal communicative function successfully. Chapter 7 makes a conclusion of the study findings in the previous chapters, provides the objective and justified comments on Skopostheorie and also proposes some constructive suggestions on (legal) translation studies.

 

  • Methodology of the Study

In this thesis, we conduct the study with the methodology of the descriptive translation studies (DTS), which meets the study requirements of legal translation within the theoretical fi,amework of Skopostheorie. The main relations within DTS (Toury, 2001:14) in Figure 1 can evidently prove the close relation between the descriptive translation studies and Skopostheorie.

 

Figure 1. The main relations within DTS

 

Besides, through integrating the macro- and micro-levels, the study of legal translation will be conducted from translation Skopos and text function at the macro-level to the command of syntax and lexis at the micro-level. In other words, the study in this thesis is conducted in a top-down way under the principle of functional translation because:

  • in the bottom-up approach, translating is seen as a code-switching operation where lexis or syntactic equivalences play the most important part;
  • moreover, a decision taken at a lower level often has to be revised when reaching the next level. Sometimes the translation process is even blocked because of

apparent untranslatability…(Nord, 2001:67-68)

Snell-Homby holds the same viewpoint on translation studies as Nord’s: an analysis of parts cannot provide an understanding of the whole, which must be analyzed from “the top down” (Snell-Hornby, 2001:35). Translation studies differ much from linguistics. The mechanical application of the bottom-up linguistic model cannot solve the fundamental problems in translation studies since the linguistic approaches, theories, and findings do not entirely aim at translation studies (Zhang, 2001:194).

The translation research can be sensible and legitimate “only if the science of translation is focused on language-pair-bound descriptive and applicative dimensions of translation studies, rather than on pure language-pair-independent translation theory95 (Wilss,1997:l)

For the sake of a sound and scientific study, the choice for analysis in the thesis are taken from some significant Chinese laws with English versions published by China Law Press and China Legal Publishing House. We intend to accomplish the research objectives in the thesis by providing the convincing case study which (“illustrates the problem and working from that towards descriptive rules rather than prescribing or proscribing, a priori, what should be done ”(Bell, 2001:31).

 

  • Review of the Prior Related Research

When we explore the functionalist translation theory, it is necessary fbr u§ to make a brief description of early functionalist viewpoints of translation in order to learn the situation where the functionalist approach and theory emerged, since functionalist translation theory could not emerge overnight suddenly. In this chapter, therefore, we would like to deal with the history of the functionalist translation theory and the current situation of legal translation studies in China, which is the essential part to further the study in this thesis.

  • The History of the Functionalist translation Theory
  1. LI The Concept of Equivalence

Translation exists because men speak different language (Steiner, 2001:51), But it is the truth that the translations of Bible and Buddhist scriptures stimulated and accelerated the translation studies in the world. The western translation studies can be dated from the third century BC when Bible translation appeared. In those years, the most influential concept on Bible translation was the age-old dichotomy of word and sense, which triggered off a heated discussion lasting fbr about 2,000 years. In the first century BC, it was Cicero (106 – 43BC) who departed from the dogma that translation necessarily consisted of a word-for-word rendering. ,He described the dilemma as follows:

If I render word for word, the result will sound uncouth, and if compelled by necessity I alter anything in the order or wording,【shall seem to have departed from the function of a translator. (De optima genera or oratorio v.l4f Nord, 2001:4)

Not only Cicero but also the other Bible translators began to doubt and question the word-for-word rendering approach in translation, such as Jerome (348 – 420) and Martin Luther (1483 – 1546). Jerome did not translate word for word but sense for sense, which apparently opposed the dogma of the time. Coincidently, after about 1000 years, Martin Luther defended the same basic principle as Jerome in a much more aggressive way: ,

We shouldn’t go and ask the Latin text how to speak German, as those fools do, we must ask the housewives and children, the ordinary man in the street and listen to what they say and translate accordingly-then they’ll understand and see we’re talking proper German to them…

(cit. Storig 1973:21, my translations; cit. Snell-Hornby, 2001:9)

In their opinions, it was more important to render the sense or to adjust the text to the target audience’s needs and expectations.

With the further advancement of translation studies, in the 1950s, 4he linguistically oriented translation studies, defined as a subdiscipline of Applied Linguistics, came into existence and boomed in the 1960s. But, in fact, what all the linguistically oriented schools of translation theory have in common however, is the central concept of translation equivalence (German Aquivalenz), which shifted the focus of translation theory away from the traditional dichotomy of <<faithfur, or “ftee” to a presupposed interlingual tertium comparisons (Snell-Hornby,2001:15). Then the concept of equivalence became the core of translation studies. Cattfbrd writes as follows:

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Translation may be defined as follows: The replacement of textual material in one language (SL) by equivalent textual material in another language (TL). (1965:20, cit. Snell-Hornby, 2001:15)

 

Till the end of the 1970s, different definitions of translation can be regarded as variations of equivalence. In the book written by Nida and Taber, we can find such a definition that ”Translating consists in reproducing in the receptor language the closest natural equivalent of the source language message, first in terms of meaning and secondly in terms of style” (Nida and Taber, 1969:12). Equivalence-based linguistic approaches emphasized the source text, the characteristics of the source text had to be preserved in the target text.

When we discussed the concept of equivalence, we cannot ignore Eugene A. Nida, who played a great part in the development of equivalence. On the basis of his own rich experience in Bible translation, Nida produced his influential concept-formal vs dynamic equivalence, ‘formal equivalence5 denoting equivalence of extralinguistic communicative effect (Nord, 2001:5). Nida brought the study of equivalence into the climax in translation studies. However, his concept of equivalence has been assailed due to its defects since being produced.

Although Peter Newmark created a new term of communicative and semantic translation, actually similar to the concept of equivalence, he points out that ‘equivalence5 effect is the desirable result, rather than the aim of any translation, bearing in mind that it is an unlikely result in two cases: (a) if the purpose of the SL text is to affect and the TL translation is to inform (or vice versa); (b) if there is a pronounced cultural gap between the SL and the TL text (Newmark, 2001:48). Bassnett concludes that ‘equivalence in translation, then, should not be approached as a search for sameness, since sameness cannot even exist between two TL versions of the same text, let alone between the SL and the TL version5 (1991:29). In the past few years, some great changes in translation studies have taken place, which Bassnett and Lefevere depict as follows:

What has changed is that one type of faithfulness (the one commonly connected with

 

equivalence) is no longer imposed on translators. […] After this change, people in the field gradually stopped asking the old questions and started replacing them with the questions that are dominating the field right now. These questions include: ‘What is the function of the (this, not a, any) translation likely to be?1 ‘What type of text needs to be translated?1 6Who is the initiator of the/this translation?’ Translations, we have learned, are not faithful or free as such, not 4good’ or ‘bad’ fbr ever, in all circumstances; rather, it is perfectly possible that they have to be faithful in some situation and free in others, in order to work to the satisfaction of their initiators. Another change is that today, we have come to recognise that different types of texts require different translation strategies (Bassnett & Lefevere, 2001:3-4),

Confronting with the confusion in translation studies triggered by the concept of equivalence, we would like to make a conclusion with Dell Hymes5 statement;

The diversity of languages, as they have developed and been adapted, is a patent fact of life that cries out for theoretical attention. It becomes increasingly difficult fbr theorists of language to persist in confounding potential equivalence with actual dive「§ity. (cit. Steinier, 2001:51-52)

Obviously, many scholars have become increasingly dissatisfied with the relationship between translation theory and practice. In such case, a new theory, the functionalist translation theory emerged. «

3A.2 The Formation of the Functionalist Translation Theory

We can divide the formation process of the functionalist translation theory into three phases: initiation, development and perfection.

 

Phase 1: Initiation

In 1971, the book Possibilities and Limits of Translation Criticism written by Katharina Reiss can be viewed as the starting point for the scholarly analysis of translation in Germany. In this book, on the basis of equivalence, she creates a model of translation criticism based on the functional relationship between source and target texts. In her eye, the ideal translation should be one “in which the aim in the TL [target language] is equivalence as regards the conceptual content, linguistic from and communicative function of a SL [source-language] text ” (1997, translation in 1989:112, cit. Nord, 2001:9). Being an experienced translator, she found that equivalence was impossible and undesired in some cases. She illustrated her findings with two exceptions. One exception is when the target text is intended to achieve a purpose or function other than that of the original; the other one is when the target text addresses an audience different from the intended readership of the original. These cases are excluded from the area of’translational ■ proper9 and referred to as ‘transfers’. In such cases, the functional perspective takes precedence over the normal standards of equivalence, namely, the evaluation of the target text has become a key assessment criterion of translation instead of the features of the source text. Reiss’s fresh viewpoint of translation criticism laid a foundation for the emergence of the functionalist translation theory.

Phase 2: Development

Hans J. Verneer, Reiss’s student, has gained much in trying to bridge the gap between theory and practice. Thanks to his erudite knowledge in general linguistics and translation studies, he has gradually found out the defects existing in the linguistically orientated translation studies:

Linguistics alone won’t help us. First, because translating is not merely and not even primarily a linguistic process. Secondly, because linguistics has not yet formulated the right questions to tackle our problems. So lefs look somewhere else. (1987a:29, cit. Nord, 2001:10)

On the basis of action theory, Vermeer thinks that translation is a type of intentional, purposefiil human behaviour performed in a specific situation because it is a type of transfer where communicative verbal and non-verbal signs are transferred from one language into another:

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Any form of transnational action, including therefore translation itself, may be conceived as an action, as the name implies. Any action has an aim, a purpose. […] The word skopos, then, is a technical term for the aim or purpose of a translation, Further: an action leads to a result, a new situation or event, and possibly to a ’new’ object. (Vermeer 1989b:173f, cit. Nord, 2001:12)

In the above statement, Vermeer intended to elaborate the reasons why he called the theory as Skopostheorie. In Skopostheorie, the addressee is one of the most important factors deciding a translation purpose. Skopostheorie w&s developed as the foundation for a general theory of translation able to embrace theories dealing with specific languages and cultures (Nord, 2001:12). Meanwhile, Vermeer regards the source text as can offer of information5 for the target audience, which is no longer considered as the confinement for a translator.

Phase 3: Perfection

Based on the study conducted by Vermeer and the principles of action theory, the further improvement of Skopostheohe has been made by Justa Holz-Manttari, a Finland-based German professional translator and translation scholar. Holz-Manttari places special emphasis on the actional aspects of the translation ■ process, analyzing the roles of the participants (initiator, translator, user, message receiver) and the situational conditions (time, place, medium) in which their activities take place( Nord, 2001:13). Instead of using the term “translation“ in the strict sense, she would rather speak of “message transmitters”,consisting of textual material combined with other media such as pictures, sounds and body movements. In Holz-Manttari?s model, translation is defined as “a complex action designed to achieve a particular purpose” (Holz-Mantarri and Vermeer 1985:4, cit. Nord, 2001:13).

Among the functionalists, we can never ignore Christiane Nord either, who has contributed much to the perfection of Skopotheori. Based on the analysis of the previous study on Skopostheorie, she introduced the loyalty principle into the functionalist approach, which turn Skoposlheorie into an anti-universalist model and reduces the presciptiveness of ‘radical’ functionalism. Moreover, confronting the other scholar’s criticisms on Skoposlheorie^ she has made immediate response with vivid illustrations and cleared up the misunderstandings and reinforced the theoretical status of Skoposlheorie in translation studies. The study of Skopostheorie has come into perfection. We can find that the functionalist translation theory, mainly stressing Skopostheorie. attempts to help free translators from being tormented by the source text and redefine the transnational action in the perspective of the addressee.

3.2 The Prior Study of Legal Translation

Before we further the research in this thesis, it is necessary fbr us to make a review of legal translation studies in China in the recent years. Frankly speaking, legal translation studies in China have lagged behind those in the western countries to great extent. With the economic development and the increasing demand of legal translation, legal translation studies have been attracting much more attention than before. We have gradually been able to read some books and papers on legal translation and its studies, most of which intend to instruct us how to achieve nearly perfect translation of laws or legal documents. In this respect, Chen Zhongcheng, has contributed two books on legal translation studies, which emphasize the micro-level assessment of legal translation in terms of terminology and syntax (Zhang, 2001:193). We can also list a few papers on legal translation studies as follows: ^Characteristics of Writing Style of English for Law and Skill of C-E Translation” (Ji, 1999:6-9), “Some Principles for the Translation of Documents of Law” (Qiu, 2000:14-17), ”Problems in the Legal Translation of our Country^ (Jin&Hu, 2000:45-50), 6The Characteristics, Etymology and Translation of Legal Terms Both in English and Chinese’1 (Xiao, 2001:44-47), “On Principles of C-E Translation of China’s Foreign Economic Laws and *

2001:5-10), “On the Creativity of Legal Translators^ 2002:41-43), “Translation of Legal and Contract Documents” (Fu, 2002:42-45), “On the Factors that Influence the Translation of Legal English” (Wang, 2003:I-5),etc.

Admittedly, these books and papers have varnished and promoted legal translation studies in China. But we can find out that, when we have made a careful study of these findings, all of them have much in common■一they tend to lay stress on the analysis and assessment of understanding and translation at the micro-level such as terminology and syntax. In order words , most scholars have ( still been lingering around the traditional linguistically-oriented <fibottoni-upM translation approach and they have failed to raise their awareness from the micro-level syntax and lexis to the macro-level translation Skopos and text function. Can we achieve much better translation effects if we take into account both elements of the macro-level text function and the micro-level syntax and lexis?

 

  • The profile of Skopostheorie
    • Introduction

If we have chosen a theory as the theoretical framework for a study, we tend to prove that it is scientific, systematic and feasible as a rule. Skopostheorie cannot be the exception because it is employed to support the study in this thesis. In the previous chapter, we have made a brief introduction of the theory and the scholars contributing to it, but it is necessary for us to elaborate its distinctive characteristics favourable to the study in terms of its trustworthy theoretical foundation, applicative rules and reasonable assessment criterion for translation criticism, etc.

  • The Theoretical Foundation of Skopostheorie

Hans J .Vermeer has played a pivotal and decisive role in the functionalist translation studies. If we may say so, Skopostheorie can not be invented without Haus J .Vermeer. In 1978, he found that the linguistic approaches alone could not help us solve the problem in translation studies. In his opinion, translation can no longer be treated as a one-to-one transfer between languages: translation is a type of human action. According to action theory, he defines human action as intentional purposeful behavior that takes place in a given situation; it is of part the situation at the same time as it modifies the situation ([1978]b:49, cit. Nord,2001:l 1).Hence, he regards translation as a form of translational action based on a source text, which may consist of translational action based on a source text, which may consist of verbal and/or nonverbal elements(illustrations, plans, tables, etc.) and even a consultant giving information. He explained, 4tany form of translational action, including therefore translation itself may be conceived as an action, as the name implies. Any action has an aim, a purpose (Vermeer, 1980b:173f, cit.Nord, 2001:12). His findings have laid the foundation fbr Skopostherie.

  • Translating as a form of Translational inleraciion

Communication is regarded as interpersonal interaction because people interact in the communicative situations, which makes it possible for Vermeer to illustrate certain aspects of translation based on action theory. Action is the process of acting, referring to “‘intentionally (at will) bring about or preventing a change in the world (in nature),) (von Wright 1986:38, cit. Nord? 2001:16). Action can thus be viewed as an intentional “change or transition from one state of affairs to another” (cf. von Wright 1963:28, cit. Nord, 2001:16). If there are two or more agents involving in a case, action theory can thus become a theory of interaction. An interaction is communicative when it is conducted through signs produced intentionally by one agent (sender) and directed to another agent (addressee/receiver). In translation, translators enable communication to take place between members of different culture communities. They bridge the gap between situations where differences in verbal and non-verbal behavior, expectations, knowledge and perspectives are such that there is not enough common ground fbr the sender and receiver to communicate effectively by themselves (Nord, 2001:17).

  • Translating as intentional Interaction

In Vermeer’s view, the definition of the concept of action should be:

For an act of behaviour to be called an action the person performing it must (potentially) be able to explain why he acts as he does although he could have acted otherwise. (1989b: 176, cit. Nord, 2001: 19)

According to Vermeer, we have a choice (an intention) to act one way or another. When we say translation is an intentional interact沁n we mean it is first and foremost intended to change an existing state of affairs (minimally, the inability of certain people to communicate with each other)(Nord, 2001:19). Intentionality may be associated with the initiator or the translator, who intends to inform the target addressee about something the source-text sender has to say.

  • Translating as Interpersonal Interaction

Agents in an interaction have certain fiinctions of roles, interconnected through a complex network of mutual relations. Such roles termed as initiator, commissioner, translator, source-text producer, target-text receiver and target-text user often involve in the translation process.

The initiator is the person, group or institution that initiates the translation process and determines its course by defining the purpose of which the target text is necessary. The role of initiator may be performed by any one of the agents in translational interaction. But the role of commissioner in the translation process may influence the very production of the target text, perhaps through demanding a particular text format or terminology. Hoiz-Manttari (1984; 109t cit. Nord, 2001:20) distinguishes the initiator {Initiator or Bedarfitrager), who actually needs the target text and the commissioner(7?(^5/,e//e/; Auftraggeber)^ who asks the translator to produce a target text for a particular purpose and addressee (similarly Vermeer 1986a:274).

In the translation process, the translator acts as the expert in translational action and is responsible both for the commissioned task and the result of the translation process. In the course of the translation process, the translator’s task is to

  • analyze the acceptability and viability of the translation brief in legal, economic or ideological terms;
  • check whether the translation is really needed;
  • specify the activities required for carrying out the brief;
  • perform a translational action, which may result in a target text, perhaps a short summary of the source text or, in special cases, in advising the client not to have the source text translated because a translation would not serve the intended purpose (cf. Vermeer 1986a: 276, also Holz-Manttari 1984:109f, cit. Nord, 2001:21).

The source-text producer has produced the text as the source for a translational action. The source text may be created fbr a certain translation process. But sometimes, it may have nothing to do with translation, in such case the source-text producer is not an immediate agent in the translational action. Nord ([1988]1991:42f, cit. Nord, 2001:21) makes a distinction between the sender and the text producer. The sender of the text is the person, group or institution that uses the text in order to convey a certain message; the text producer is the one actually responsible fbr any linguistic or stylistic choices present in the text expressing the sender’s communicative intentions.

The target-text receiver is the addressee of the translation and is thus ‘ a decisive factor in the production of the target text (Holz-Manttari 1984:11, cit. Nord, 2001:22). What is the distinction between addressee and receiver? The former is the prospective receiver seen from the text producer’s standpoint while the latter is the person, group or institution that actually reads or listens to the text after it has been produced. More information given by the commissioner about the target-text addressee is of crucial importance for the translator.

The target-text user is the one who finally commands the target-text for a particular purpose such as training, information and advertising, etc. <

In the end, it is necessary to point out that, in some cases, different agent roles may be fulfilled by a single person in the translation process.

  • Translating as a Coninmnicaiive Action

The communication is carried out by means of verbal or nonverbal behaviour by the producer, the receiver, or both. The behaviour is teleological because it aims at a particular goal. If the producer and the receiver want to accomplish the intended goal, they must have some agreement about the meaning of the sign in the behaviour. In translation, the meaning of the signs must be known by the target audience if the translator wants to produces signs which can be understood.

  • Translating as an Intercidlural Action *

At the beginning of this section, we have to turn to the definition of culture made by the American ethnologist Ward H.Goodenough:

Culture, being what people have to learn as distinct from their biological heritage, must consist of the end product of learning: knowledge, in a most general, if relative, sense of the term. By this definition, we should note that culture is not material phenomenon; it does not consist of things, people, behavior, or emotions. It is rather an organization of these things. It is the forms of things that people have in mind, their models for perceiving, relating, aod otherwise interpreting them. (1964:36, cit. Nord, 2001:24)

This definition has served as a general staring point for functionalist approaches to translation(Vermeer 1986a: 178; Ammann 1989c:39; Nord 1993:22, cit. Nord, 2001:24).

Besides, Snell-Hornby defines culture as: firstly, the concept of culture as a totality of knowledge, proficiency and perception; secondly, its immediate connection with behavior (or action) and events; and thirdly, its dependence on expectations and norms, whether those of social behavior (or action) and events; and thirdly, its dependence on expectations and norms, whether those of social behavior orthose accepted in a language usage (Snell-Hornby, 2001:40).

Maybe it is disgraceful to have too much quotation in such a short section, actually they pivotally serve two purposes: firstly, they provide us with the clear-cut explanation of translating as an intercultural action; secondly, they, in advance in the thesis, bring a cure to the doubt whether Skopostheorie can be applied in legal translation (studies) or not since a few scholars prejudice Skoposthorie in favour of the cultural elements. Legal language is a kind of language for special purpose and language is an intrinsic part of a culture.

  • Translating as a Text-Processing Action

In functionalist approaches, the role of the source text differs fundamentally from the earlier linguistically-oriented or equivalence-based translation theories. Vermeer puts forth the idea of dethroning the source text. But dethroning does not imply murder or dumping; it simply means that the source text, or more precisely, its linguistic and stylistic features, is no longer regarded as the one and only yardstick for a translation (Nord, 2001:120). The source text is just one of the various sources of information for the translator. With the offer of information in the source text, the translator chooses the items which he considers as interesting, useful and adequate to the desired purposes.

  • Three Rules of Skopostheorie

Skopostheorie consists of three basic rules: the skopos rule, the coherence rule and the fidelity rule. Before we probe into these basic rules of Skopostheorie. we would like distinguish such terms as skopos, aim, purpose, function and intention.

Skopos is a greek word for “purpose5. Skopostheorie is the theory that applies the notion of Skopos to translation (Nord, 2001:27). Accordingly, “skopos” has been a technical term for the purpose of the translation. Besides the term Skopos, Vermeer uses the related words aim, purpose, intention and function. According to him (Vermeer 1990:93fT, cit. Nord, 2001:28):

* ‘Aim’ (Ziel) is defined as the final result an agent intends to achieve by means of an action (cf.Vermeerl986a:239).

  • “Purpose* (ZweZ) is defined as a provisional stage in the process of attaining an aim. Aim and purpose are thus relative concepts.
  • ‘Function’ {Funktion)refers to what a text means or is intended to mean from the receiver’s point of view, whereas the aim is the purpose fbr which it is needed or supposed to be needed (cf. Vermeer 1989a:95).

, ’Intention'(加拒川侬7 or Absicht) is conceived as an “aim-oriented plan of action,, (Vermeer[1978] 1983:41) on the part of both the sender and the receiver, pointing toward an appropriate way of producing or understanding the text(cf. Vermeer 1986a:4I4). The term intention is also equated with function of the action (Reiss and Vermeer 1984:98)

In order to avoid the above conceptual confusion, Nord has also made a further distinction between intention and function (Nord [1988] 1991:47f, cit.Nord, 2001:28). iIntention, is defined from the viewpoint of the sender, who wants to achieve a certain purpose with the text. In accordance with the model of text-bound interaction, the receivers use the text with a certain function, depending on their own expectations, needs, previous knowledge and situational conditions. But as a general rule, Vermeer subsumes the teleological concepts aim, purpose, intention and function under the generic concept Skopos.

Having presented the terms related to Skopos, it is time to turn to three basic rules of Skopostheorie. Among these rules, the Skopos rule is the top-ranking rule, which means that Skopos determines a translational action in the translation process. Vermeer explains the Skopos rule in the following way:

Each text is produced fbr a given purpose and should serve this purpose. The Skopos rule reads as follows: translate/interpret/speak/write in a way that enables your text/translation to function in the situation in which it is used and with the people who want to use it and precisely in the way they want it to function.

(Vermeer 1989a:20, my translation, cit. Nord, 2001:29)

The Skopos rule intends to help translators break the fetters of free and faithful translation, dynamic and formal equivalence, good interpreters and slavish translators, etc, which means that the Skopos of a particular translation task may require a 4free? or a ‘faithfiir translation, or anything between these two extremes, depending on the purpose fbr which the translation is needed (Nord, 2001:29). Then, who decides the translation Skopos? The translation brief offers us the answer to the question. The translation brief specifies what kind of translation is needed and tends to provide the specific translation requirement according to the

initiator. But the translation brief does not inform the translator of the particular translation strategy and translation type, which are decided by the translator’s responsibility and competence.

The second rule of Skopotheorie is the coherence rule (intratextual coherence), which specifies that a translation should be acceptable in a sense that it is coherent with the receiver’s situation (Reiss and Vermeer 1984:113, cit. Nord, 2001:32). In other words, the target text should make sense in the communicative situation and culture in which it is received. Being ‘coherent with’ is synonymous with being (part of5 the receiver’s situation (cf. Vermeer [1978] 1983:54,cit.Nord,2001:32)

The third rule of Skopostheorie is the fidelity rule (intertextual coherence), which exists between source and target text because a translation is an offer of information about a preceding offer of information. But the strategies how to achieve the fidelity rule rely both on the translator’s interpretation of the source text and on the translation Skopos.

When we have elaborated these three rules of Skoposheorie, we should make clear the relationship among them. The fidelity rule (intertextual coherence) is subordinate to the coherence rule (intratextual coherence), and both of them are subordinate to the Skopos rule. If the Skopos requires a change of function, the standard will no larger be intertextual coherence with source text but adequacy of appropriateness with regard to the Skopos (Reiss and Vermeer 1984:139, cit. Nord, 2001:33). If the Skopos demands the intratextual 历coherence, the standard of the intratextual coherence is no longer valid. To be precise, the Skopos rule is the top-ranking rule. .

  • Adequacya Fresh Assessment Criterion of Translation

Before Reiss advanced the fresh assessment criterion of translation-一adequacy,

 

culture-specificity of translational models and the relationship between the translator into the moral responsibilities. Can the translator deceive the target-culture receiver or betray the source-text producer? In order to smooth over these concerns and perfect the functionalist translation theory, Christiane Nord introduces the ‘loyalty9 principle into Skopostheorie. Loyalty, committing the translator bilaterally to the source and the target sides, refers to the responsibility translators have toward their partners in translational interaction category, is different from the concepts of fidelity and faithfulness referring to a relationship holding between the source and the target texts. The loyalty principle adds two important qualities to the functional approach: firstly, it turns Skopostheorie into an anti-universalist model; secondly, it reduces the prescriptiveness of ‘radicaP functionalism.

But how do we deal with the relationship between loyalty and function? Loyalty refers to the interpersonal relationship between the translator, the source-text sender, the target-text addressee and the initiator while function refers to the factors that make a target text work in the intended way in the target situation. Although they seem to contradict each other, loyalty restricts the range of justifiable target-text functions for a specific source text and promotes the need for a negotiation of the translation assignment between translators and their clients. The loyalty principle takes into consideration the legitimate interests of the three parties involved in a translation process: initiators, target receivers and original authors. If any conflict appears between the interests of the three partners of the translator, the translator has to mediate and seek the consensus among them.

Besides, the function-plus-loyalty model has also responded to the criticism that the functional approach indulges translator free to do whatever they like with any source text, or worse, what their clients like.

All in all, Shopostheorie is the theory with pragmatic, culture-oriented, consistent, practical, normative, comprehensive and expert properties in translation studies(c£ Nord, 2001: 123-124). Further, it can be responsible for the target-culture receivers and the source-text authors. We are able to conduct the bold and sound research on translation practice and translation studies on the basis of Skopostheorie, if we may say so.

 

  • Legal language and Legal Translation

It is essential for us to know the characteristics of legal language and legal translation between English and Chinese before we apply Skopostheorie to the legal translation studies.

5.Z About legal Language

Laws are, in essence, orientated towards controlling and discouraging illegal human behaviours, mainly through a system penalties fbr law breaking made in the legal code. But the legal code has to cover a range of related behaviours in a delimited range of situations instead of a single instance of human behaviours. A thorny problem, the language problem, is thus triggered off. Or rather, in the legal code, the key problem is saying neither too much, which will make a legal code unjust, nor too little, which will make some behaviours unacceptable. Language is then central to the law, and law as we know it is inconceivable without language (Gibbons, 1994:3). Language is the medium, process and product in the various arenas of the law where legal texts, spoken or wri壮en, are generated in the service of regulating social behaviour (cf. Yon Maley; Gibbons, 1994:11).

  • History of Legal Language

Before we analyze the characteristics of legal language, we may as well have a brief review of the history of legal English and Chinese.

The institution of English law dates from the Norman Conquest (1066). Before the Conquest there was English law without distinct profession and justice centralization. After the Conquest, the written language of the law was at first Latin and English. By the fourteenth century, French came to take over from Latin as the language of statutes but later the English language was rapidly replacing French. English became the official language of the law by 1650 when a host of Old English, Latin, Norman-French and Middle English terms had become fixed in the lawyers5 vocabulary. The language of the law reached its definitive form in the middle ages and has remained unaltered ever since but it reached its climax of verbosity in the early eighteenth century, supported by such long-standing practices at the notorious piecemeal system: the longer the document, the greater the drafting fee (MellinkofF 1963:188, cf.Yon Maley; Gibbons, 1994), which has had a profound influence on drafting laws till the present day. Today, in most English-speaking countries, legal text retains its identity as a highly specialized and distinctive text type of genre of English.

We Chinese people should feel much proud of the long and glorious history of legal language when we discuss the issues associated with laws. The studies conducted by some scholars have shown that legal language came into existence in China in the Xia Dynasty (2000 BC) while it appeared in Greece in the year 500BC. In the Qin Dynasty, Chinese legal language developed into the specialized language with the precise, objective, natural and concise style, differing from the documentary language and the others commanded in the other fields in terms of wording and sentence structures. The ancient legal language reached its maturity in the Ming and Qing Dynasties. Since the founding of New China, legal language has developed into the modern standard Chinese with the precise style (cf. Pan, 1997:4-63). Especially since the practice of the reform and opening-up policy, China has made great strides in amendment, improvement and enactment of law. At present, over 3,000 laws and regulations have come into being, including the Constitution and some fundamental statutes. In the past one or two years, the new statues have rocketed at the rate of one per week (Pan, 1997:189).

  • Characteristics of Legal Language
  • Aspect of Text

According to the earlier study, legal language is categorized into the languages for special purposes. Thus legal language features its formulae in legal text in order to achieve the legal function: regulatory and informative functions (Sarcevic, 1997: 11). The regulatory function is achieved through the prescriptive strategies while the informative function through the descriptive strategies. Legal texts can thus be divided into the following three groups according to their function: 1) primarily prescriptive, 2) primarily descriptive but also prescriptive, and 3) purely descriptive (cf. Bocquet 1994:2, Sarcevic, 1997:11). Laws and regulations are prescriptive primarily.

The formula of legal text is the symbol of its prescriptiveness, which is realized by legal language in order to reflect laws’ authoritative and solemn properties. The formulae in legal text do not mean to enumerate mechanically legal concepts and articles. Legal text also highlights the intratextual coherence in order to avoid the ambiguity occumng in a law. Legal drafters usually position the correlated norms into the compact and sound framework in the systematic and scientific approach. Through the comparative study between English and Chinese legal texts, we have found that they have much in common. Both are transferred in discourse from the descriptive part to the prescriptive part, both are also transferred in structure from the macro- to micro-level, from general provisions to particular articles and from the important articles to the secondary ones (cf. Zhang, 2000:285). Due to the formulae of legal texts, legal texts seem to be much more conservative than the other texts. Nevertheless, being conservative is the symbol of being authoritative for legal texts. In other words, legal text cannot easily be

changed once it has been enforced.

  • Aspects of Syntax and Lexis

As fbr the syntactic and lexical characteristics in legal language, we may as well first probe into these two extracts from the Constitutions of China and America.

* Example 1

第六十条 全国人民代表大会每届任期5年。

全国人民代表大会每届任期届满的两个月以前一,全国人民代表大会常务 委员会必须完成下届全国人民代表大会代表的选举。如果遇到不能进行选举 的非常情况,由全国人民代表大会委员会以全体组成人员的2/3以上的多数 通过,可以推迟选举,延长本届全国人民代表大会的任期。在非常情况结束 后1年内,必须完成下届全国人民代表大会代表的选举。

(The Constitution of the People’s Republic of China, 1999:18-19)

Article V

The Congress, whenever two thirds of both Houses shall deem it necess iry, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a convention fbr proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the firsl and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

(The Constitution of the United States of America, cit. Myers: 1977:509)

According to Example 1, legal language tends to be the involved style, in which one attempts to convey every detail without stint(Qin, 1997:285). The prominent feature of legal style is very long sentences. This preference fbr lengthy sentences both in Chinese and in English is due to the need to place all information on a particular issue in a complete unit so as to reduce the ambiguity that may arise if the conditions of a provision are placed in separate sentences. The reason fbr this complexity appears to be that legal language is often trying to cover all possible combination of conditions and contingencies. Language । complexity increases greatly when an attempt is made to unify all these within the confines of a single sentence (Gibbons, 1994:7). The lengthy sentences in legal text are achieved mainly through conditional sentence structures and the coiijunctions “和 / 以及 / 或者 ” in Chinese and “and / or” in English. We can also find the syntactic formulae to prove how a single sentence is realized.

In the form of conditional sentence structure, we can find:

If X, then Y shall do Z, or

If X, then Y shall be Z (cf. Vijay Bhatia; Gibbons, 1994:150).

With the aid of connectors, we can find:

  • If X does A, B and C, X shall be liable to punishment. ・
  • If X does A, B or C, X shall be liable to punishment. (Sarcevic, 1997:151)

Although the lengthy sentences may, sometimes, cause troubles in reading or intelligibility; it can assure the legislative provision precise, unambiguous and all-inclusive.

Form the above extracts, we can also be aware of the lexical characteristics in legal text. Legal text is composed of legal terms and other normative words. A large number of technical terms make legal text different from the other texts, which is one of the prominent features in legal discourse. Legal terms alone cannot convey the sufficient meaning or clear-cut purpose in a provision. Thus drafters have to turn to other normative words and expressions for help. But they tend to command the normative words with the denotative function in order to achieve the precise legal effects, differing much from the words with the connotative function in literary works. Drafters also employ archaisms to reflect the authoritativeness and solemnness of legal text and command the nomalised expressions to realize the disambiguity and stress on a particular circumstance.

Till now, some scholars have attempted to make conclusions on the characteristics of legal language, such as precision, conciseness, solemnness and normativeness (Ma, 1995:30-31) and precision, conclusiveness and conciseness (Wong, 2002:122), etc. But the following viewpoint sounds more reasonable:

Precision is the symbol of legal language’s spirit and vitality and also the basic style of legal language. Besides, due to the demand of precision and the long years of command, legal Language has also evolved into a precision style of its own, which is concise and compact, solemn and simple. Hence, we can conclude that precision has been playing the dominant and foremost role in legal style (Pan, 1997:8).

5.2 About Legal Translation

521 Characteristics of Legal Translation

In all societies, law is formulated, interpreted and enforced in order to discourage murder and theft and bad faith in business dealings among other offences. With the increasing demand for the free mobility of people, goods and capital between different countries, governments, businesses and individuals were in great need of some effective measures to secure their legal rights and interests abroad. Thus legal translation emerged and has been playing an important role in political, economic and cultural communications.

Some people bias legal translation as a mere mechanical thing, a question of formulae. Actually, the translation of legal texts of any sort, from statute laws to contracts to courtroom testimony, is a practice which stands at the crossroads of three areas of theoretical inquiry: legal theory, language theory (broadly defined, to include the interests not only of linguistics but of rhetorical and textual theory as well), and translation theory (Morris, 1995:14).

Up to now, the main perplexity for legal translation has been the heated debate on the legal translation criteria. Legal translators have traditionally been bound by the principle of fidelity to the source text, hence some lawyers and linguists agree that legal texts have to be translated literally. In regard to legal translation, Nida states that ‘there is little of no room for free translation, and claims that ‘it is desirable, if not imperative, to have the greatest possible degree of formal correspondence? (1987:191, cit. Sarcevic, 1997:17). Weisflog also remarks that the legal translator^ task is to ‘get the author’s message—meaning here his thoughts and ideas rather than his words-over to the receptor, (1987:195, cit. Sarcevic, 1997:17). Although insisting on the method of formal correspondence or literal translation, Weisflog also mentions legislation (constitutions, statues, etc.) translated ‘purely for information purposes, i.e., for the information of foreign lawyers, businessmen, and other foreign readers5 (1987:193, cit. Sarcevic, 1997:17). This distinction is significant because it is one of the first signs of awareness by a lawyer that the function of a text might also play a role in determining translation strategy (Sarcevic, 1997:17). After the traditional view of the transfer of the source text was challenged, a new idea appeared to free translators by creating a new text through selecting a translation strategy based on an analysis of the particular communicative situation. Thus adaptation in legal translation emerged. Later, co-drafting approach has attracted more attention in the bilingual countries, such as Canada, Switzerland, etc. But the long-existing problem has not been solved. How can we tackle the universal problems confronted by legal translators in legal translation apart from the exceptions?

In China, some scholars have also launched the discussion over the criteria of legal translation. Mr. Qiu Guixi (Qiu, 2000:14-17), has put forth five principles in translating legal documents: 1. the principle of using formal words and expressions; 2. the principle of preciseness; 3. the principle of conciseness; 4. the principle of term consistency; 5. the principle of using legal terms. Among these five principles, we can find that, in essence, the other four principles are subordinate to or serve the principle of preciseness.

Admittedly, legal translation is not a mere process of transposing or substituting concepts and institutions of the source legal system by concepts and institution, of the target legal system, in other word, by transcoding legal terminology (Sarcevic, 1997:12). Accordingly, while lawyers cannot expect translators to produce parallel texts which are equal in meaning, they do expect them to produce parallel texts which are equal in legal effect. Thus the translator^ main task is to produce a text that will lead to the same legal effects in practice. In such case, the translator must be able to understand not only what the words means and what a sentence means, but also what legal effect it is supposed to have, and how to achieve that legal effect in the other language (Schroth 1986:55-56; cf. Sarcevic 1989:286-297; also Lehtol985:156; cf. Sarcevic,1997;71-72).

5.2.2 Qualifications of Legal Translators

No doubt that legal translation is interdisciplinary in nature, Thus a legal translator must be competent in linguistics, translation and law. Linguistics can help a translator command language (syntactic structures and lexical expressions) in the appropriate manner. Except the linguistic skills, translation competence requires a legal translator to determine his role, his strategies and approaches in the translation process in order to achieve the translation effects that the initiator (commissioner) has expected. Legal competence presupposes 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 (Sarcevic, 1997:113). Translators should also be familiar with the target and source legal systems.

Nowadays a legal translator is encouraged to be creative with language to accomplish the intended legal effects, which actually demands his considerable intuition. As a responsible decision-maker, a qualified legal translator must keep the idea in his mind how far he can stretch his limited freedom but still honor the restraints of the legal profession.

 

Chapter 6 Application of Skopostheorie to Legal Translation

Based on the findings in the previous chapters, we would like to apply Skopostheorie to the analysis of legal translation and explore whether or not Skopostheorie can help us achieve the precise effects in legal translation. We are planned to take advantage of these three basic rules (the Skopos rule, the coherence rule and the fidelity rule) and the loyalty principle of Skopostheorie to delve into legal translation in such aspects: 1) translation Skopos\ 2) text function; 3) syntactic structures; 4) lexical expressions and 5) translators5 morals.

6J Legal Translational Actionthe Purposeful Communicative Activity

6.LI Varied Roles and Functions in the Translation Process

The people or agents involved in translation have certain functions or roles. These roles are interconnected so as to achieve a translational action. As the theoretical foundation of Skopostheorie^ the action theory classifies these roles into initiator, commissioner, translator, source-text producer, target-text receiver and target-text use匚 In legal translation, this classification also does function. As we know, a translational action does not exist if there is no initiator or commissioner. The role of the initiator is more essential than that of the commissioner because the initiator can offer the translation brief to the translator For the translation of laws and statutes, the initiator or commissioner should be some government organs. Obviously, drafters of a law are the source-text producers. When the translator has got the source-text and the translation brief from the initiator, he will start his work. According to Skopostheoriey the translator’s status is promoted and the translator is ostensibly the expert in translational action (Nord, 2001:21). This is definitely the truth in legal translation. Most of the translators of a law are not only proficient in languages (such as Chinese and English) but also expert in a certain field (such as economy or politics). They do not fulfill the translation brief passively but actively since they can mediate with the initiator and put forward their suggestions when a problem unexpected arises. The mediation between translators and initiators seems to be much more necessary and important in legal translation than those in other translations. When the translation of a law has been accomplished, the target-text receiver and user stage in the translation process.

We can take the translation of Contract Law of the PRC for example. The Legislative Affairs Commission of the NPC drafted the law thus became the source-text producer. When Bureau of the Legislative Affairs under the State Council found it necessary to translate it into the English version and started to plan the translation, the initiator appeared. After defining the translation Skopos. this bureau organized the translators, the crucial role in the translation process. Under the guidance of the translation brief, the translators started off their translation commission. When the translation has been achieved, the domestic businesses and individuals (target-text user) use the English version to communicate or trade with foreigners (target-text receiver). Thus, the translation process of the Contract Law has been realized systematically from the initiation to the final application.

But different roles may be fulfilled by a single agent in legal translation. Such is the translation of a contract, which can minor this feature more vividly. For instance, a domestic company has decided to enter into a contract for trade with a foreign company. The domestic company drafts the contract in Chinese, then initiates the translation process and makes use of the translation in the end. In this case, this company alone performs as the source-text producer, initiator and target-text user in the translation process.

6.1.2 Translation Skopos and Translation Brief

In Skopostheorie, the Skopos rule is the top-ranking one, or rather, a translational action is determined by its Skopos. As a rule, the initiator decides the translation Skopos for which the target text is needed, and accordingly sketches out the translation brief specifying what kind of translation is needed. The translation brief would give the translator as many details as possible about the purpose, explaining the addressees, time, place, occasion and medium of the intended communication and the function the target-text is intended to have. But we have to note:

What the Skopos states is that one must translate, consciously and consistently, in accordance with some principle respecting the target-text. The theory does not state what the principle is: this must be decided separately in each specific case. (1989 b:182, cit. Nord, 2001:29-30)

Thus in legal translation, the translation Skopos can refer to the translational action as a whole, to the target-text as result of this action, and to a particular translation unit as well as the translation strategy chosen for its transfer. We may as well take for instance the translation of the fundamental laws initiated by Bureau of the Legislative Affairs under the State Council to prove this viewpoint.

Based on the data I gathered from the Internet, the general translation principles of the fundamental laws (the translation brief) are: firstly, to satisfy the requirements of governments, organizations and individuals home and abroad to know Chinalaws and statutes in the comprehensive and proper approach, which is orientated to help inform foreigners of China as well as her laws and statutes; secondly, to provide foreigners with the legal basis for their investment, trade, litigation and arbitration, etc in China; thirdly, through legal translation, to bring impetus to China?s economy and drive China onto the international arena.

These general translation principles (the translation brief) do tell the translators why the initiator needs the translation and what kind of translation is needed. But the translation brief has not informed the translators of how to perform their translating job, what translation approach to use, or what translation type to choose. Who makes these decisions? The translators, of course. But we should note that these decisions depend entirely on the translators5 responsibility and competence. In Skopostheorie3 the translator frees himself from the unsound restraints and plays a very active part in the translation process. So do the legal translators. Being experts in some fields and experienced translators, they take into account all the other roles and functions in the translation process, and frequently mediate with the other roles to solve the problems arising unexpectedly in order to achieve the precise legal effect of the translation.

From the above analysis, we can find that the translation brief is based on the general purpose (or assumption) to some extent before the translation process is started off. In such case, something unexpected will for sure emerge in the translation process and bring about troubles to translation. It is evident that the specific translation brief tends to help facilitate a translational action. Thus translation, esp. legal translation, poses the practical and profound requirements for the initiator and the translator. The initiator should offer the translation brief as explicitly as possible. Based on the translation brief, the translator should be able to infer and clarify the Skopos as much as he can from such particular elements involved in legal translations as text function, syntactic structures and lexical expressions, etc. Or rather, the translator should take good advantage of the coherence rule and the fidelity rule in the translation process to realize the translation Skopos — the precise legal effects of the target-text.

6.2 Achieving Precision Realizing the Legal Effects of the Target-Text

  • Aspect of Text

You begin the job by reading the original for two purposes: first, to understand what it is about; second, to analyse it from a ’translator’s’ point of view, which is not the same as a linguist’s or a literary critic’s. You have to determine its intention and the way for the purpose of selecting a suitable translation method and identifying particular and recurrent problems. (Newmark, 2001:11)

  • Typology and Function of Legal Text

Nowadays translators have paid more attention to text typology and text function than before. According to Reiss, text typologies help the translator specify the appropriate hierarchy of equivalence levels needed for a particular translation Skopos (cf. Reiss and Vermeer 1984:156, cit. Nord, 2001:37). Based on the dominant communicative function, she classified text types into the informative, expressive and operative types in 1977. Text-type classifications sharpen the translator’s awareness of linguistic markers of communicative function and functional translation units (Nord, 2001:38).

Similarly, legal text cannot be the exception. Translators have been increasingly interested in the typology and function of legal text.

As we know, legal language belongs to the languages for special purposes. In special-purpose communication, the text is formulated in a special language. In this way, legal texts are formulated in a special language generally known as the language of the law. Prior to the analysis of the typology and function of legal text, it is necessary for us to make further introduction of the characteristics of legal language in terms of its style and tone. Legal language is a kind frozen style, which manifests the authoritativeness and solemnness of legal text (Qin, 1997:141). Besides, legal drafting is the professional writing, which is marked by its lack of emotionalism, editorializing, sarcasm, or even overt enthusiasm. The tone of professional communication should be factual and impartial (VanAlstyne, 1990:8). Legislative writing is so impersonal that its illocutionary force hold independently of whoever is the drafter or the addressee. The general function of this writing is directive, to impose obligations and to confer rights (cf. Bhatia, Gribbons, 1994:136-137). In translation, the tone of a passage is the key to its communicative effectiveness, and has to be determined by the translator (Newmark, 2001:150). Therefore, keeping the tone and style of legal text in mind does help us understand the importance of the typology and function of legal text in translation.

According to Sarcevic (cf. 1997:7-11), the debate on the function of legal text has lasted for about thirty years. In 1971, Kathrina Rei3 made a significant contribution to general translation theory by proposing a translation-oriented text typology based not only on subject-matter but first and foremost on the function of particular texts. She classified texts as expressive, conative or informative and assumed legal text as informative. Attempting to present a comprehensive model of specialist communication, Sage acknowledges the importance of communicative function in special-purpose texts. While maintaining the informative function of special-purpose texts, he also recognizes two secondary communicative functions: interrogative and directive. The interrogative function ‘requires a reversal of roles so that the sender seeks information from, rather than offers information to the recipient/ whereas the directive function is “an attempt to elicit modification of behaviour via an effect on knowledge” (1990:102). In 1993, Sager suggests that laws and regulations have an informative purpose for the general reader and a directive one ‘for the specific group of people listed,5 i.e. for those affected by the particular text (1993:70), Peter Newmark classified legal text as conative and also briefly described the function of legal text as ‘directive5 and ‘imperative9 while later he reclassified legal text as expressive.

In legal theory, the tripartite classification has gradually been replaced by a bipartite system in which language has two primary functions: regulatory and informative, i.e. prescriptive and descriptive. Accordingly, legal texts can be divided into the following three groups according to their function: 1) primarily prescriptive, 2) primarily descriptive but also prescriptive, and 3) purely descriptive (cf. Bocquet 1994:2, cit. Sarcevic, 1997:11). Legal texts whose function is primarily prescriptive refer to the regulatory instruments, such as laws, regulations, code, contracts, treaties and conventions. They are normative texts, prescribing rules of conduct or norms that people ought to observe. Today it is generally agreed that normative instruments prescribe how the members of a given society shall act (command), refrain from acting (prohibition), may act (permission) or are explicitly authorized to act (authorization) (see Weinberger 1988:60-64, cit. Sarcevic, 1997:11), The descriptive part contains the propositional content of a legal rule, which specifies the conditions under which a rule becomes effective. *

From the above analysis, we can find that the typology and function of legal text play a treat role in determining translation strategy and achieving the desired legal effects. As for the significance of the typology and function, Zhang Xinghong (2001:192) concludes as follows:

The typological characteristics of legal texts have become a part of the legal convention, so it is believed that the correct understanding of the typological features or legal texts is not only the basis on which the legal translator grasps the global intention and /or function or the legal text concerned but also the decisive factor to determine its translation criteria and its translation techniques to be employed in achieving the said criteria.

But how can we take full advantage of the function of legal text? Ping Hong (2002:23) suggests that the translator should acquire a good knowledge of the source text and gain the essence of its function; based on the translation Skopos^ determine the translation strategies, clarify the translating perspectives and delimit the function of the target-text in order to achieve the desired effects of the translation.

621.2 Coherence of Legal Text

Coherence consists of the configuration and sequencing of the CONCEPTS and RELATIONS of the TEXTUAL WORLD which underlie and are realized by the surface text (Bell, 2001:165). According to Skopostheorie, the target-text should conform to the coherence rule (intratextual coherence) in the translation process. The coherence rule means that the target-text should be produced in the logical, reasonable and consistent translation approaches;, which can help avoid the ambiguity, vagueness and confusion when the target-text receiver understands and utilizes it. In order to achieve the intratextual coherence, the translator must care such following elements as text formulae and term identity (consistency) in legal translation. .

  • Text formulae

We can find that Chinese and English laws and statutes have much in common in legislative formulae (cf.Zhang, 2000:285). Both are transfened in the following methods: a) from the macro- to micro-levels; b) from the descriptive parts to the prescriptive parts; c) from the general provisions to the particular articles and d) from the important articles to the secondary articles. These methods can help the translator keep the special formulae in mind and accomplish the preciseness, normativeness, conciseness and authoritativeness of the target-text by achieving the intratextual coherence. Besides, the formulae of legal texts can lessen the possibilities of the receiver’s confusion and misunderstanding of the target-text through providing the settings of the particular legal terms and articles.

  • Term identity (Consistency)

Although legal translators are encouraged to be creative with the language in the non-standardized parts of legal texts, there are restrictions in these parts. In legal translation, once a term is selected, the same term must be repeated over and over again instead of using synonyms, which can help the translator achieve the intratextual coherence of the target text. The use of synonyms is discouraged in legal translation because the target-text receiver might involve in confusion or misunderstanding due to the different expressions of a single reference. First and foremost, the translator must honour the principle of language consistency. Consistency may be the hobgoblin of little minds in the literary world, but it can be crucial in the law. Often a legislative drafter, judge or author will choose a particular phrase and use it consistently. To avoid misunderstanding, the translator must be careful to do the same (cf Beyer & Conradson, Morris, 1995:146). Actually, the translator needn5t feel ashamed of his translation due to the repetitions of terms. In legal drafting and translation, repetition of technical terms does not mean clumsy writing or poor creation but assure the receiver of the precise effects of the target-text. Henry Weihofen argues that:

Exactness often demands repeating the same term to express the same idea. Where that.is true, never be afraid of using the same word over and over again. Many more sentences are spoiled by trying to avoid repetition than by repetition. (cit. Chen, 2000:214).

We can prove the argument with the following example:

Example 2

第六条,设立外资企业的申请,由国务院对外经济贸易主管部门或者国 务院授权的机关审查批准。审查批准机关应当在接到申请之日起90天内 决定批准或者不批准。

Article 6 The application to establish an enterprise with foreign-capital shall be submitted for examination and approval to the department under the State Council which is in charge of foreign economic relations and trade, or to another agency authorized by the State Council. The authorities in charge of examination and approval shall, within 90 days from the date they receive such application, decide whether or not to grant approval.

(Law of the People’s Republic of China on Foreign-Capital Enterprises, 2001:4-5)

In this article, we can find that three different terms ‘department’, ‘agency9 and ‘authorities9 in English mean the synonyms of ‘部门’and ‘机关’in Chinese. Especially, the same term ‘机关’has Iwo definitions in English. Is the term 4authorities9 more powerful than the term ‘agency9? In such case, the receiver will be confused because he thinks, maybe, many different organs are in charge of the application to establish a foreign-capital enterprise. Where can he go through the formalities smoothly? In this English version, if we employ the impersonal term ‘body (bodies)9 instead of those three different terms, it will be more effective and reasonable in the translation. Thus the intratextual coherence is achieved.

Similarly, the translation of the same term in the title and articles of a law must meet the intratextua! coherence rule. In the English version of Law of the People fs Republic of China on Foreign-Capital Enterprises^ the English term ^reign-capital enterprises9 means the Chinese term ‘夕卜资企业’in the title of this law. However, the translator uses ‘enterprises with foreign capital9 in the articles (2001:3,5,7,9,11) instead of “foreign-capital enterprises’. Apparently, the translation alike not only leads the receiver to confusion but also ruins the precision, authoritativeness and solemnness of the law.

To generalize that, like legal drafters, translators need to be thoroughly acquainted with the format of a legal text and understand the function of each of its parts in order to be effective text producers (Sarcevic, 1997:121). In this way, translators can observe the intratextual coherence rule in the translation process and avoid bringing about ambiguity and confusion to the target-text receiver.

6.2.2 Aspect of Syntax

For centuries legal translators faithfully followed the syntax of the source text as closely as possible, mainly out of fear that any changes might disturb the thought process. This fear disappears when translators understand how legal rules operate and are able to express the intended logical relations. (Sarcevic, 1997:162)

6.2.2.1 On e-Sentence Structure

In Chapter Five, we have made a brief introduction of the characteristics of legal language, accordingly, we have gained the general knowledge of the basic legal syntactic feature™one-sentence structure. The knowledge of one-sentence structure can, to a certain extent, help translators honour these three basic rules of

Skopostheorie and facilitate the translational action in legal translation. One-sentence structure can be dated back to the ancient times. In those times, lack of punctuation contributed to the appearance of one-sentence structure, even in an entire statute. With the advancement of society, statutes became more complicated. Thus, it was necessary to divide the entire legal text into some sections, which were still drafted in the form of a single sentence. Till the present day, this practice has been retained in legal drafting and translation even though some reformers protest the complexity of a single sentence as an obstacle to legal intelligibility. However, the supporters have been defending the one-sentence rule, they insisted (cf. Sarcevic, 1997:131):

A legislative sentence consisting of three or more main clauses, each modified by a number of subordinate clauses, is easier to understand because the reader need not identify the relationship between the individual sentences (Driedger 1967:77). Moreover, the view is held that communication is likely to be hindered by a series of sentences because ‘the inevitable result will be either needless repetition or tiresome and confusing cross-references or both, (Thorton 1987:61), In defense of the one-sentence rule, Thornton concludes that sentence length is not a valid criterion for intelligibility (1987:61). A plea for reasonableness, however, is in order.

The above arguments identify and stress the reasonableness and significance of the one-sentence rule employed in legal drafting and translation, manifesting the particular translation Skopos in legal translation, i.e. the reason why legal translators tend to use the lengthy syntactic structures. We may as well probe into the truth through the following example.

Example 3

第一百一十三条当事人一方不履行合同义务或者履行合同义务不符合约 定,给对方造成损失的,损失赔偿额应当相当于因违约所造成的损失,包括 合同履行后可以获得的利益,但不得超过违反合同时预见到或者应当预见到 的因违反合同可能造成的损失。

Article 113 7/,either party fails to perform its obligations under the contract or does not perform its obligations as contracted and thus causes losses to the other party, the amount of compensation for the loss shall be equivalent to the loss actually caused by the breach of contract and shall include the profit obtainable after the performance of the contract, but shall not exceed the sum of the loss that might be caused by a breach of contract and has been anticipated or ought to be anticipated by the breaching party in the making of the contract.

(Contract Law of the People’s Republic of China, 1999:56-58)

We can find the whole sentence is achieved by the conditional clause, logical connectors ‘and/or5 and qualifications (modifiers). The intratextual coherence can be realized since the target-text receiver is familiar with the conditional clause in the communicative situation in which it is received. Similarly, the connectors 6 and/or’ specify the logical relations between the correlative elements and the qualifications (modifiers) clarify the essential details, both of which contribute to the intertextual coherence. Evidently, such elements as conditional clause, connectors {pr/and) and qualifications (modifiers) play the great role in constructing the one-sentence structure in legal drafting and translation.

  1. Conditional Clause

With a view to achieving the primary regulatory and informative functions of legal texts, conditional clauses prevail laws and statutes. This kind of syntactic structure can help legal translators achieve the intracoherence of the target text. Crystal and Davy (1969, cf. Vijay Bhatia; Gibbons, 1994:150) give a good indication of this when they claim that most legal sentences have one of the following forms:

If X, then Y shall do Z;

or

IfX, then Y shall be Z.

Where ‘if X’ stands fbr the description of case(s) to which the rule of la.w applies, although they do not say so explicitly, CY: is meant to be the legal subject and ‘Z’ indicates the legal action. We can check this claim with the following example.

第二十八条受要约人超过承诺期限发出承诺的,除要约人及时通知受要约人 该承诺有效的以外,为新要约。

Article 28 If the offeree makes and acceptance beyond the time limit fbr acceptance, it shall constitute a new offer unless the offerer notifies the offeree in time that the acceptance is effective.

(Contract Law of the People’s Republic of China, 1999:15-16)

In the above example, cif the offeree makes an acceptance beyond the time limit fbr acceptance? is the case, ‘it’ (an acceptance beyond the time limit fbr acceptance) is the legal subject, and the legal action is ‘constitute a new ofler\ Thanks to the achievement of the intratextual coherence through the conditional clause structure, it is easy fbr the target-text receiver to comprehend the English version.

However, in 1848, George Coode, an English barrister reached the similar conclusion to the above forms, which sheds light on such basic elements as legal subject, legal action, case and conditions in legal rules in general The following is a simplified example of Coode’s showing the four elements in their mandatory order (Sarcevic, 1997:136):

(Case) Where any Quaker refuses to pay any church rates, (Condition) if any churchwarden complains thereof, (Subject) one of the next Justices of the peace, (Action) may summon such Quaker.

Later theorists and practitioners find that there is no grammatical difference between Coode’s case and condition and both have essentially the same function, although Coode’s conclusion contains the considerable value that we should pay much attention to the sentence structure and the arrangement of qualifying clauses in the proper position. Today, according to Sarcevic (1997:136), Coode’s two elements (case, condition) are now combined as the fact-situation which specifies the conditions under which the particular rule operates; and the legal subject and legal action are integrated as statement of law, prescribing the action to be taken and by whom in the event the conditions constituting the fact-situation are fulfilled. Then Coode’s example can be reformulated as follows without altering the content of the fact-situation:

Fact-situation

where a churchwarden files

a complaint against a Quaker

fbr refusing to pay any church rates

Obviously, the interpretation and application of the new definition on the conditional clause structure can for sure liberate legal drafters and translators from the shackles of rigid sentence structures, which can also promote their creativity in legal drafting and translation. Notwithstanding the creation is encouraged, translators must proceed with the caution when formulating the fact-situation, taking care not to alter the prepositional content or create an ambiguity that could endanger uniform interpretation and encourage litigation (Sarcevic, 1997:164).

第十七条,要约可以撤回,撤回要约的通知应当在要约到达受要约人之前或者 要约同时到达受要约人。

Version 1 If an offer is recalled, the notice of recall should arrive before the offeree receives the offer or at the same time as the arrival of the offer.

(Contract Law of the People’s Republic of China, cit. Fu,2002:45)

Version 2 An offer may be withdrawn. The withdrawal notice of an offer shall reach the offeree before or at the same time as the arrival of the offer at the offeree.

(Contract Law of the People’s Republic of China, 1999:13-14)

In Version 1, the subordinate and main clauses are transposed, which will result in the confusion or misunderstanding of the target-text receiver. Version 2 conveys the same meaning as the source text with two sentences, failing to achieve the conciseness. Both precision and conciseness can be achieved in Version 3:

The offer may be withdrawn, if, before or at the same time when an offer arrives, the withdrawal notice reaches the offeree (Fu, 2002:45).

After analyzing the conditional clause, it is necessary to note that the analysis is actually essential to legal translators although it is seemingly redundant. Firstly, the analysis can raise the translator^ awareness of the status of the conditional clause in legal language and give him much confidence to translate boldly and skillfully with the conditional clause. Secondly, the translator should be much cautious with the conditional clause structure in legal translation, esp. when the translator commands it as the framework of a long sentence. If the translator takes it less seriously, maybe, he will trigger off a severe consequence* Although the conditional clause can help the translator achieve the intratextual coherence, the translator should keep the following warning in mind:

Regardless of the length and complexity of a provision, the statement of law is always in the main clause (or clauses). (Sarcevic, 1997:164)

  1. Logical connectors: andlor

The logical connectors andlor also play a role in constructing the one-sentence structure. By defining the clear-cut logical relations between the elements in a single sentence, the connectors andlor have much influence on the intertextual coherence in legal translation. It is the truth that drafters and translators often ignore their important functions. As we know, the connector and is conjunctive while the other or is disjunctive. In Chinese J和”并且,and,以及,means ‘and’ in English whereas ‘或者’means cor\ In legal texts, these logical connectors can determine whether a person has committed a crime, whether a contracting party has fulfilled its obligations and so forth. Thus we can imagine the consequence if a translation error appears when the translator has misused these logical connectors. When the translator is translating the lengthy sentences, the conditional clauses in particular, he should be very careful when using these logical connectors. Sarcevic (1997:151) has illustrated the significance of these connectors with the following examples:

  • If X does A, B and C, X shall be liable to punishment.
  • If X does A?B or C, X shall be liable to punishment.

In the first example, X is liable to punishment only if he/she performs all three acts (A+B+C). If the disjunctive connecter is used, he/she is liable to punishment if he/she performs any of the three acts (A or B or C). We can turn to the following translation for proof of these two formulae.

第十三条,合营企业如发生严重亏损,一方不履行合同和章程规定的义务,不 可抗力等,经合营各方协商同意,报请审查批准机关批准,并向国家工商行政管 理部门登记,可终止合同。

Article 13 In case of heavy losses, failure of a party to perform its obligations under the contract and the articles of association, or force majeure ect, the parties to the joint venture may terminate the contract through their consultation and agreement, subject to approval by the examination and approval authorities and to registration with the commerce administration.

(Law of the People’s Republic of China on Chinese-Foreign Equity Joint Ventures, 2001:38-41)

In this example, the function of disjunctive connector or means that one of these three factors can result in the termination of the contract; if the translator uses and instead of or by mistake, it seems to be more difficult to terminate the contract unless the joint venture happens to satisfy those three conditions in the contract. Conversely, if the translator mistake or for the conjunctive connector and, it seems to be much easier to terminate the contract because the joint venture can go though the termination formalities at either body of those two. We can find that the misuse of these connectors and/or can result in the failure in the intertextual coherence and ruin the precise legal effects of the target text.

We may as well delve into the other translation example so that we can verify the consequence if the translator misuse the logical connectors and/or.

第三十六条法律、行政法规规定或者当事人约定采用书面形式订立合同,当 一人未采用书面形式但一方已经履行主要义务,对方接受的,该合同成立。 Article 36 Where the parties fail to make a contract in written form as provided for by laws or administrative regulations or as agreed by the parties, but a party has already preformed the major obligations and the other party has accepted the performance, the contract shall be considered as executed.

(Contract Law of the People’s Republic of China, 1999:19-20)

Based on the above analysis of these two translation examples, we can find that translators should be much cautions when using these logical connectors since such mistake frequently go unnoticed during translating the lengthy and complex sentences in legal text and thus easily ruin the precision of the target text due to the failure of the intertextual coherence.

  1. Qualifications (Modifiers)

Qualifications form an important part of the structuring of the lengthy legal sentences. Whether or not the translator can place the qualifications (modifiers)

properly can? to some degree, affect the intertextual coherence in legal translation. In fact, most legislative provisions cannot be achieved without the main provisionary clause and the attendant qualifications or various kinds, which are inserted at available syntactic positions within the structure of the main clause (cf. Vijay Bhatia; Gibbons, 1994:151). Admittedly, if the translator wants to incorporate a variety of qualifications within a single sentence he has to gain as much syntactic knowledge to insert them as possible. Legal draftsmen and translators position different qualifications properly for the purpose of precision. Otherwise, these qualifications can result in ambiguity. Therefore, legal draftsmen and translators try to position qualifications right next to the part they are meant to modify, even at the cost of making the sentence inelegant or even discontinuous. However, according to Bhatia (cf. Vijay Bhatia; Gibbon, 1994:151), cognitive structuring is an excellent tool to interpret the regularities of organization in order to understand the rationale for the genre.

笫一百一十八条,当事人一方因不可抗拒力不能履行合同的,应当及时通知 对方,以减轻可能给对方造成的损失,并应当在合理期内提供证明。

Article 118 Either party that is unable to fulfill the contract due to force majeure shall notify the other party in time in order to reduce losses possibly inflicted to the other party, and shall provide evidence thereof within a reasonable period of time.

(Contract Law of the People’s Republic of China, 1999:57-58)

If we doubt whether the translation is transferred precisely and logically, we may as well check it based on Bhatia’s suggestion (Figure2).

Provisional Clause

Either party

that is unable to fulfill the contract

due to force majeure

shall notify the other party

in time in order to reduce losses

possibly inflicted tothe other party

and shall provide evidence

thereof within a reasonable

period of time

Figure 2 Provisional clause and qualification

From Figure 2, we can find that Bhatia’s suggestion can help the translator check the intertextual coherence of the target text and facilitate the translation of lengthy sentence with qualifications; thus when the legal translator translates the lengthy and complex sentences, he should keep this point in mind that each modifier (qualifications) should be placed ‘as near as possibly to the sentence element it modifies, thus making it appear ”logically and naturally connected to that element”‘ (Thorton 1987:23, cit. Sarcevic, 1997:165). Otherwise, the intertextual coherence will be very hard to be realized and the precise legal effects of the target text are out of the question.

622.2 Punctuation

It is recorded that older statutes present each section as a continuous and usually unpunctuated sentence. However, punctuation is now regarded as a device of syntax that assists the reader comprehend more quickly the intended meaning by providing sign-posts to sentence structure (Thornton 1987:33, cit. Sarcevic, 1977:179). It is the acknowledged truth that punctuation serves as a visual device to identify and separate the component parts of the sentence. Punctuating properly can meet the requirements of legal translation Skopos and help the translator realize intratextual coherence and intertextual coherence in legal translation. But, how can the translator employ punctuation properly in order to achieve the precision of the target-text? Till now, the legal translator has been following the syntax of source text as closely as possible while using punctuation, which can result in an unnatural word order and make the target-text difficult to comprehend. In this case, such punctuations as comma, period and semicolon have attracted much attention, esp. the function of comma has been the spotlight among legal translators. Thus, the use of commas has become a mechanical means, through which the translator can make the target-text more precise and intelligible by showing which groups of words belong together Some scholar even claims that the position of a comma in a sentence could change the verdict (Samuelsson-Brown, 1998:90). We can generalize the cases in which the translators should command commas in legal translation (cf. ,WnAlstyne, 1990:470-473):

  • Use a comma to separate independent clauses joined by a coordinating conjunction;
  • Use a comma after an introductory dependent clause;
  • Use a comma after a conjunctive adverb introducing a coordinate clause;
  • Use a comma to separate a nonrestrictive word, phrase, or clause from the rest of the sentence;
  • Use a comma to separate items in a series.

The following example can mirror vividly the importance of using commas in

legal translation:

Example 9

第十三条外资企业雇佣中国职工应当依法签订合同,并在合同中订明雇佣, 解雇,报酬,福利,劳动保护,劳动保险等事项。

Article 12 When employing Chinese workers and staff, an enterprise with foreign capital shall conclude contracts with them according to law, in which matters concerning employment, dismissal, remuneration, welfare benefits, labour protection and labour insurance shall be clearly prescribed.

(Law of the People’s of China on Foreign-Capital Enterprise, 2001: 6-7)

Obviously, these commas in the example not only make the translation easily intelligible but also help the receiver avoid the misunderstanding and confusion at the restrictive clause. Both the intratextual coherence and intertextual coherence have been accomplished. However, based on the above example, we must note that the position of the commas is often identical in both the source and target-texts.

Through the above syntactic analysis of legal sentence, we have gained much knowledge of the syntactic characteristics in legal translation, which helps us surmount confusion and reinforce confidence when construing a lengthy and complex legal sentence. In addition, we will never ignore this point that syntax and semantics, grammar and meaning, structure and word are in fact interdependent, and that an integration of the two branches of language study are essential for the translator (Snell- Hornby, 2001:93). Hence, for the purpose of achieving precision in legal translation, it is of necessity for us to the legal lexis further.

6,2,3 Aspect of lexis

The chief difficulties in translating are lexical, not grammatical—i.e. word, collocations and fixed phrases or idioms. (Newmark, 2001:32)

6.2.3」Terminology

Technical translation is primarily distinguished from other forms of translation by terminology, although terminology usually only takes up about 5-10% of a text (Newmark, 2001:151). According to Oxford Advanced Learner Js English-Chinese Dictionary (1997:1575), terminology is defined as: 1) technical terms of a particular subject and 2) proper use of words as names or symbols. In this section, we would like to discuss legal terminology in these two respects.

First it is necessary for us to make a general review of the functions of terminology in LSP(languages for special purposes) in order to have a better knowledge of legal terminology. The following characteristics may be used to describe the functions of terminology (Holljen, 1999):

  • It is the basis of all knowledge of LSP, of the definition of the nature of LSP, of the properties of a term in short of LSP as a tool of communication within specific fields.

.• It provides knowledge of how terms are formed and selected; on which basis new terms should be formed.

.• It secures a consistent use of the terms, and provides the awareness of the difference between LSP and GL(general vocabulary).

.• It introduces logical reasonable as part of the method not only of term formation but also of translation.

., It implies analysis of new special fields.

  • It implies analysis and structuring of texts.
  • It implies the search for and the presentation of information.

As fbr legal translation, apart from these characteristics above, legal terminology also mirrors the precision, authoritativeness and solemnness of the target-text. Therefore , proper use of terminology forms a key part of the translation Skopos in legal translation.

Example 10

第二十一条承诺是受要约人同意要约的意思表示。

Article 21 An acceptance is an assent indication of the offeree to an offer.

(Contract Law of the People’s Republic of China,1999:13-14)

In this example, such terms as acceptance, offer, offeree and assent indicate the different properties of legal tenns from the general language. When the target-text receivers read these terns, they can catch the essence of the English version. Thus the translator succeeds in realizing the intratextual coherence besides the intertextual coherence.

In legal translation, obviously, the translation of technical terms plays a great role, which can determine the precise effects of the target-text. The mistranslation of a term may trigger off not only the confusion of the target-text receiver but also a litigation sometimes. The following example hints this point.

Example 11

第九条,从事货物进出口与技术进出口的对外贸易经营,必须具备下列条件, 经国务院对外经济贸易主管部门许可:

(-)有自己的名称和组织结构;

(二)有明确的对外贸易经营范围;

(五)法律,行政法规规定的其他条件飞

外商投资企业依照有关外商投资企业的法律,行政法规的规定,进口企业自 用的非生产物品,进口企业生产所需的设备,原材料和其他物资,出口其生 产的产品,免予办理第一款规定的许可。

Article 9 Foreign trade operators handling the import and export of goods of technologies must satisfy the following conditions, and obtain the permission from the competent department in charge of foreign economic relations and trade under the State Council:

  • having their own names and organizational structures;
  • having clear-cut business scopes of foreign trade;

(5) other conditions provided by laws and administrative rules and regulations. Enterprises with foreign investment shall be free from obtaining the permission as stipulated in the first paragraph of this Article, if they in accordance with the laws and administrative rules and regulations governing enterprise with foreign investment import non-productive goods for their production, or export their own products.

(Foreign Trade Law of the People’s Republic of China, 2001» 6-9)

In the translation above, we can find that the term ‘第一款’in Chinese is translated into the ‘the first paragraph of this Article5, which has left the evident loophole for the unlawful companies. In spite of the accomplishment of the intertextual coherence;, the intratextual coherence appears to be invalid. According to the translation, they can interpret ‘the first paragraph5 as the first part covering all of the five sections although ‘the first paragraph? refers to the first section of this Article actually. If we change it into ‘Section 1 of this Article’, the trouble will disappear. In the translation process, the translator, obviously, pays much attention to a certain definition of the word ‘paragraph? bur fails to take into account the other definitions and usages of the word and the particular case, such as the context. In the practice of legal translation, we must make every effort to rid the unnecessary confusion and trouble caused by the mistranslation of technical terms.

Example 12

第六条,在中华人民共和国境内的法人和其他组织需要输境内保险的,应当 向中华人民共和国境内的保险公司投保。

Article 6 Legal persons and other organizations that seek which want to be insured within the territory of the People’s Republic of China shall enter into insurance policy documents with the insurance companies within the territory of the People’s Republic of China.

(Insurance Law of the People’s Republic of China, cit. Chen, 2002:323-324)

In the translation, because both the intratextual coherence and intertextual coherence fail to be achieved, the target-text receiver will be confused by ‘enter into the insurance policy documents’ for ‘投保If we change it into ‘cover insurance with’, we can achieve the precise and concise effects of the target-text better.

6.23.2 Modals shall/may

The central task of laws and statutes is to identify and empower the rights and duties relevant to the domain of acts that they are regulating. With a view to achieving this task, there are two chief ways of doing this一by saying what must be done and what may be done. The expression can be achieved by the use of the modals shall and may, which carry the meaning of permission and authorization. Some scholars argue that, in respect of the interpersonal function, the use of the modal shall, to great extent, can minor the formal, solemn and mandatory characteristics of legal English (Zhang, 1998:353). Thus? the use of these modals can help translators achieve the translation Skopos in legal translation. According to Doonan (1995:171), ‘shall’ should be used only in the imperative sense in a legal document to impose a legal subject to whom it refers.

第五条当事人应当遵循公平原则确定各方的权利和义务。

Article 5 The parties shall observe the principle of equity in defining each others rights and obligations.

(Contract Law of the People’s Republic of China, 1999:7-8)

In Example 13, the modal shall signifies the legal authoritativeness successfully and the intertextual coherence is achieved; on the contrary, Example 14 fails to do this by using the modal can instead of shall:

第十一条 书面形式是指合同书,信件和数据电文(包括电报,电传,传真, 电子数据交换和电子邮件)等可以有形地表现所载内容的形式。

Article 11 The written forms mean the forms which can show the described contents visibly, such as written contractual agreement, letters, and data-telex (including telegram, telex, fax, EDI and e-mail).

(Contract Law of the People’s Republic of China, cit Fu, 2002:43)

From the analysis above, we can find the importance of the modal shall in legal English. However, in legal translation, the translator must be cautious of the use of the modal shall, otherwise, he will ruin the precise legal effects.

第四条当事人依法享有自愿订立合同的权利,任何单位和个人不得非法干 预。

Article 4 The parties shall, pursuant to law, have the right to enter into a contract on their own free will, and no unit or person may unlawfully interfere.

(Contract Law of the People’s Republic of China, 1999:7-8 )

This Article, apparently, confers the rights to the parties to the contract in the Chinese version. But the use of ‘shall5 in the translation has altered the intention completely. Due to shall, the target-text means these parties are compelled to enjoy the right, which contradicts with the expression ‘on their own free will’. Both the intertextual coherence and intratextual coherence fail to be achieved, so does the translation Skopos.

Apart from imposing duties and obligations, legislative text also confers rights, privileges and powers on legal subjects in the form of permission and authorization by using the modal may.

Example 16

第十八条 要约可以撤销。

Article 18 An offer may be revoked.

(Contract Law of the People’s Republic of China, 1999:13-14)

Finally, it is necessary to note that the translator must be aware of the difference between the modals shall and may and he cannot mistake each other in translation practice, esp. in the translation of a negative sentence. The translator must avoid using a negative subject with the modal shall although he can accomplish the intertextual coherence. Otherwise, the intratextual coherence is affected to some degree because cno person shall , is much weaker than cno person may’ in legal English.

Example 17

第三条 合同当事人的法律地位平等,一方不得将自己的意志强加给另一方。

Article 3 The parties to the contract have equal legal status, and neither party may impose its will on the other.

(Contract Law of the People’s Republic of China, 1999:7-8)

In this Article, ‘neither party may’ not only negates all obligations but denies all permissions. In such case, the model shall cannot achieve the same precise effects as may.

6,2,3,3 Archaism: h ere/there Iwh ere plus prep(s)

Another symbol of legal English is archaism, which can also mirror the frozen style of legal language. These archaisms tend to be some complex adverbs, fonned by such adverbs as here/there /where plus such prepositions as, in, of, to, by, on, after, etc. Actually, we can seldom come across such archaisms in the ordinary English as these in legal text. But it is the indisputable truth that these archaisms appear much frequently and play a great role in legal text. Some scholars (Lu & Li, 1994:399) claims that, based on the large number of archaisms, a target-text receiver can conclude a text as the legal document even though he cannot comprehend it well. These complex adverbs may refer to a particular part or the parties involved in a law or a contract. Meanwhile, they can help achieve the precise and pithy legal effects. In legal translation, the translator should learn how to take good advantage of such archaisms. The use of archaisms can promote the intratextual coherence and help us verify the adequacy criterion of Skopostheorie in legal translation.

第二百一十二条租赁合同是出租人将租赁物交付承租人使用、收益,承租人 支付租金的合同。

Article 212 A “lease contract“ is a contract whereby the lessor delivers the leased object to the lessee for use or for obtaining proceeds, and the lessee pays the rent therefore.

(Contract Law of the People’s Republic of China, 1999:93-94)

In the above example, ‘whereby5 means ‘by which’ and ‘therefore’ means cfor that/which\ Thanks to the use of these two complex adverbs, the translation not only avoid the ambiguity caused by the clumsy expression but also mirrors the adequacy of the target text.

In view of the good knowledge and command of these archaisms for the translator, they are listed as follows withy English and Chinese definitions:

hereafter: following this point in the document 此/百

hereby: by this means or as a result of this 据止匕

herein: in this document 于此文件中

hereinafter: later in this document 于此文件中以后

hereof: connected with or belonging to this; of this 关于止匕点

hereto: to this 对于这个、于此

hereunder: under this heading 在此标题下

hereupon: at or after this moment 在这以后

thereafter: after that 以后

thereby: by that 由此、从而

therefore: for which 为止匕

therein: in that 在其中

thereinafter: later listed in that document 此文后面

thereof: of that 在其中 *

thereto: to that在那里、随附

thereupon: at or after that moment 在刃B 以后

whereby: by which or according to which 凭此、凭那个

wherein: in which 在那方面

whereof: of which 关于那个

whereto: to which 对于那个

In practice, the translator can make the target-text clear-cut, pithy and precise if he has employed the archaisms properly.

第五条当事人应当遵循公平原则确定各方的权利和义务。

  • The parties shall observe the principle of equity in defining each other’s tights and obligations.

第六条,当事人行使权利、履行义务应当遵循诚实信用的原则。

  • The parties shall observe the principle of good faith in exercising their rights and fulfilling their obligations.

(Contract Law of the People’s Republic of China, 1999:7-8)

In the translations above, we can make them more formal and precise than the examples if we use the archaisms. We may change them as follows:

  • The parties to the contract shall observe the principle of equity in defining the rights and obligations of the parties thereto.
  • The parties to the contract shall observe the principle of good faith in exercising the rights and fulfilling the obligations thereof.

In Article 5, £the parties thereto? refers to ‘the parties to the contract\ in Article 6, ‘thereof5 stands for the indefinite pronoun 4their5. Having been changed, the intratextual coherence is achieved and these two versions are more formal, precise and intelligible.

6.23.4 Nominalisation

Legal text also features the nominalisation in drafting and translation. The use of the nominalised expressions can help the drafter or translator bring in a greater degree of precision and all-inclusiveness in the target-text. Or rather, nominalization can help translators achieve adequacy in legal translation.

Example 20

第二条 本法所称合同是平等主体的自然人、法人、其他组织之间设立、变更、 终止民事权利义务关系的协议。

Article 2 For the purpose of this law, a contract means an agreement on the establishment, alteration or termination of a civil right-obligation relationship between natural persons, legal persons or other organizations as subjects with equal status*

(Contract Law of the People’s Republic of China, 1999:7-8)

In such case, the use of the nominalised expressions of the verbs ‘establish’, (alter7 and ‘terminate’ has indicated compactly and precisely the means of handling the relationship between the rights and obligations. Meanwhile, the nominalisation has also helped the translator dodge the possible confusion or ambiguity of wordiness caused by the use of too many verbs in a single sentence.

6.3 Exercise of the Loyalty Principle

In legal translation, the confusion and ambiguity caused by the target text may frequently occur even though the translator has already made effort to achieve the precise effects of the target-text. In such case, how can the translator avoid the embarrassment or seek a remedy? If the translator has gained both legal and linguistic competence, the key to the question is the translator^ morals. Thus the loyalty principle in Skopostheorie does help the translator out of the trouble. Many practicing translators find that functionalist models give them more responsibility and self-confidence in a society where translating is still mainly considered a ‘serving profession, (Nord, 2001: 117).

According to Skopostheoriey loyalty must not be mixed up with fidelity or faithfulness, concepts that usually refer to a relationship holding between the source and the target texts. Loyalty is an interpersonal category referring to a social relationship between people (Nord, 2001:125), that is to say, the interpersonal relationship between the translator, the source-text producer, the target-text receiver and the initiator. Loyalty principle means the translator has the moral responsibility to the target-text receiver, the source-text producer and the other agents in the translation process. Firstly, the translator cannot deceive the target-text receiver, and the translator has the duty to make an interpretation to the target-text receiver why he translates; secondly, the translator should honour the source-text producer and thus the target-text purpose should be compatible with the original author’s intentions (Nord, 2001:125); finally, the translator should play the active role in the mediation between the agents involved in the translation process, which can be influenced much by they translator^ professional morals.

With a view to being responsible for the other agents in legal translation process (such as the target-text receiver and the source-text producer, etc), some scholars (Samuelsson-Brown, 1998:91) suggest adding a statement at the end of the translation in line with the following:

“‘Although due care and attention has been given to this translation, it should not be considered a legal document and the original language document takes precedence over this translation in any dispute over interpretation

They think that the purpose of the statement does not mean the translator^ inability, but for example to explain that a legal concept that exists in the source language may not exist in the target language. In the English versions of such Chinese documents as statutes and contracts, we can also find the following statement made by the translator:

In case of discrepancy between the Chinese and the English versions, the Chinese version prevails.

In China, some scholars (Chen, 2000:8-11) protest against this kind of practice and argue the translator ‘secures himself but endangers the receiver’. Everything has two sides. Notwithstanding the criticism, we should note the positive point of the above statements, which can, to great extent, mirror the translator^ responsibility to the initiator, the target-text receiver and the source-text producer if he does try all that he can.

Chapter 7 Conclusion and Discussion

7,1 Conclusion

According to the study in this thesis, we have probed and examined the guideline function and assessment criterion of Skopostheorie for legal translation. Through spotlighting the translation Skopos, the theory has introduced the fresh top-down research methodology into translation studies, which performs much differently from the bottom-up linguistically-orientated translation conventions. With a view to achieving the precise legal effects of the target-text, this thesis, by integrating the macro- and micro-level study methods, has conducted the systematic study of legal translation in aspects of translation Skopos and text function, syntactic structure and lexical expression. In the study, the analysis of text function mirrors the coherence rule while the study of legal syntax and lexis mainly honours the fidelity rule. Meanwhile, both rules serve the Skopos rule. The ultimate aim of this thesis is to prove the principle ‘the end justifies the means’ (Reiss and Venneer 1984:101, cit, Nord, 2001:29), which also holds true for legal translation. Or rather, the precise legal effects of the target-text determine all the means and strategies employed in the translation process. Accordingly, the assessment criterion of legal translation is adequacy instead of equivalence, which means the translator should attempt to produce parallel texts that are identical in their legal effects.

In Skopostheoriey the Skopos defined in the commission, expands the possibilities of translation, increases the range of possible translation strategies and extricates translators from the restrictions of such translation theories (or approaches) as equivalence, literal translation vs free translation, domestication vs alienation, etc. But Skopostheorie does not inform the translator of how to fulfill his translating job and what strategy to use. In such case, the translator should be able to justify their choice of a particular Skopos in a given translational situation and should be able to devise a holistic strategy for a particular case in the translation process. Therefore, we can say that Skopostheorie contributes the translator to an active role and gives much freedom to the translator. But the freedom does not mean that the translator can deviate too much from the source text or deceive the target-text receiver on his own will. The freedom is influenced by the loyalty principle and delimited by the translation Skopos. In other words, the precise effects of the target-text are the key parameters for the translator to enjoy his freedom. If the translator has violated the loyalty principle or departed too much from the Skopos. his freedom is null and void.

7.2 Further Discussion

Apart from the conclusion above, we would like to discuss such points concerning (legal) translation studies as follows:

  1. Should we raise our awareness of the importance of legal translation studies? Although legal translation has been playing the increasing role in the economic construction, the status of legal translation studies has not attracted much attention from all walks of life, esp. in the translation profession. Chen Zhongcheng (Chen, 2000:1) puts his finger on the Achilles’ heel of legal translation studies: how many papers on legal translation have been written by jurists and translators? Rarely have we been able to read the books on legal translation. Which institute (organization) has ever sponsored an academic seminar or symposium on legal translation? How many publishing houses have published a kind of book or even a brochure on legal translation? Are they contemptuous or incompetent? All the (legal) translators and jurists, benefiting from or engaged in legal translation, should offer their own answers to the above-mentioned questions. What Prof. Chen appealed for has revealed his concerns on the worrying situation of legal translation studies. With the accelerating globalization, it is time for Chinese translators to do a bit for legal translation studies.
  2. Should we shift our attitudes towards the general translation studies? It is the acknowledged truth that we have gained much achievement in translation studies in China. On the other hand, we cannot ignore the defects and prejudices existing in translation studies. In the past, we have lingered in the explorations and debates of how to translate properly and how to guide the practice with theories (cf. Xie, 2001:2-3), which has tormented Chinese translators too much. Tosome extent, we have misunderstood the essence of translation theories. We should hold to the viewpoint that ”theories, including translation theories we discuss, not only contain the function of instructing us how to act, but also cover the function of helping instruct us how to cognize an action” (Xie, 2001:3). Perhaps we can gain something in Skopostheorie, from its embryo to perfection, which presents a scientific and systematic development process by absorbing the essence and discarding the dross, and features its dynamic and compatible properties, de Beaugrande (cit. Bell, 2001:33) has made a sound suggestion on the approach of translation studies:

It is the task of science to systematize the fuzziness of its objects of inquiry, not to ignore it or argue it away.

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