ON LEGAL LANGUAGE AND LEGAL TRANSLATION
改革开放以来，我国的对外交流日益频量，法制建设也不断完善。 在此背景下，对法律文体翻译的研究已逐步引起我国法律界与翻译界 的直视.尤其是在我国加入世贸组织以后，针对我国入世法律文件译 文的讨论与评价更使法律文体翻译成为各方关注的焦点。
要研究法律文体翻译，首先要分析法律语言，因为法律语言与其 他专业语言相比有其显著的特点，如准确性、庄严性等.本文即从法 律语言的构成与特点出发,广泛借鉴了国际法律翻译界的最新研究成 果，结合翻译理论以及汉语与英语这两种语言自身的特点，系统了探 讨了法律文体的英汉与汉英翻译之方法与技巧.
文章分为五章.第一章截船 简要介绍了法律、法律语言以及法 律文体翻译的背景知识；第二章送筋浮营；分析了法律词汇与法律语 育的构成与特点：第三章法律文体翻译理论,探讨了法律文体翻译的 相关理论及其发展；第四海法律文体翻译方法,提出了法律文体的英 汉互译的方法与技巧：第五章英汉、汉英法律术用B译辨析例举,从 近年来国内出版的数本较具权威性的英汉与汉英法律词典中收集、蹄 选了三十个法律术语翻译条目，先逐一指出其错漏，然后通过论证， 提出他者的观点.
关键词：法律 法律语言 法律文体楣译
ON LEGAL LANGUAGE AND LEGAL TRANSALTION
Since the reform and opening up, China’s foreign exchanges have been considerably expanded, and the legal construction in our country has also been improved at an amazing speed. Under such a circumstance, the research on legal language and legal translation has been receiving more and more attention. Especially after China’s accession to the World Trade Organization, the discussion on the English-Chinese translation of the legal documents of China’s WTO entry further makes the legal translation a social focus.
The study of legal translation should be based upon that of legal language, for legal language boasts its distinguished characteristics compared with other professional languages.
Starting from these features, taking advantage of the translation theory, the thesis analyzes the techniques and approaches to translate the legal texts, which is composed of five chapters. Setting the tone for the interdisciplinary nature of this study, chapter one provides basic information on legal language and legal translation, pointing the significance of studying them. Chapter two presents the features of legal language, distinguishing legal texts from other texts and showing why legal language is special. Chapter three contains a comprehensive analysis of the theory of legal translation, Chapter four puts forward the approaches to legal translation. And Chapter five lists the translation errors of legal terms in several authoritative legal dictionaries published in our country during the past decade, trying to make a tentative analysis of these errors, and to find out the reasons leading to them.
Legal translation is interdisciplinary in nature, which requires not only competent translation skills but also profound legal knowledge. Therefore, the writing of this thesis is far from an easy task. Yet thanks to the guidance and advice of Professor Zhou Yi, I have managed to fulfill the paper smoothly in the end.
KEY WORDS: law; legal language; legal translation
Table of Contents
- E INTRODUCTION 1
- O LEGAL LANGUAGE 4
- REE THEORY OF LEGAL TRANSLATION 14
- Translation Theory and Legal Translation 14
- The History of Legal Translation 20
- The History of Legal Translation in Foreign Countries 20
- The History of Legal Translation in China 21
- UR APPROACHES TO LEGAL TRANSLATION 23
- Approaches to Legal Translation from English to Chinese 23
- Approaches to Legal Translation from Chinese to English 31
- Basic Requirements of Legal Translation from Chinese to English 31
- Translation of the Frequently Used Sentential Forms in Legal Text • 33
- Translation Approaches to the Structure of’的’in Chinese Legislative Text 35
- VE CORRECTIVE GLOSSARY OF LEGAL TERMS 38
- E-C Corrective Glossary 38
- C-E Corrective Glossary 45
CHAPTER ONE INTRODUCTION
Law is the rules and principles for human behavior and the conduct of government in an organized community, state, or nation, created or recognized by customs or by government institutions and implemented or enforced by the government.
Law touches upon every aspect of our lives, it regulates the food we buy, the water we drink, the drugs we take, the air we breathe. It controls whom we will marry and defines what our matrimonial rights are. It sets the standards for care and education of our children. It governs our business and financial relationships, guarantees our rights as consumers; rules out the qualifications we must have to engage in trades and professions; endows us with our rights if we are injured or cheated; ascertains our obligations towards others and penalties if we fail; what we can read and what we can say; what property we can own, what use we can make of it. and how it may be disposed of when we die. The law determines what country we can live in; our rights and duties as a citizen; how we will be governed; and how we can elect our leaders. International law attempts even to regulate the conduct of entire nations; their rights with respect to each other; their conduct in times of war; their obligations to humanity and the environment.
- Legal Language
Legal language (or the language of law), the carrier and manifestation of law, is as broad and complex as human experience itself and as society evolves, it expands. Concerned primarily with language, legal language is identified as six subdivisions by Jean-Claude Gemar, the distinguished French linguist: the language of the legislator, judge, the administration, commerce, private law and scholarly writings (doctrine). Since defining, refining, debating, and interpreting and applying the words of constitutions and statues, contracts and wills, judicial opinions and scholarly writings, are the major preoccupation of the law, legal language also can be classified into two major categories in this light, Black Letter Law (which is also called as Hornbook Law) and Legal Literature in spite of the wide variety it contains. The fbrnier refers to the legal principles regarded as so basic and well established as to require no citation to case authority, such as constitutions and statues, laws and regulations promulgated by the Congress, and the international norms established by authoritative international organizations say, U.N. While the latter means the scholarly works (doctrine) and judicial opinions (for example, the decision made by U.S Supreme Court that Gorge W. Bush be the winner of American Presidency in 2000 rather than Al Gore), often arising fierce debates, far from being authoritative. The above means of identifying are different out of the different angles, whereas in the last analysis they are unitary.
Language is the medium through which law acts, hence the nature of the medium necessarily has a pervasive effect on what purposes can be achieved through the law and how well those purposes can be forwarded. Apparently, the study of legal language, or to be more accurate, legal linguistics is an interdisciplinary subject which bears the stamps of both linguistics and law. Yet the overwhelming majority of scholars hold that it is a branch of applied linguistics bearing on law to some extent, instead of a branch of law (reasons may been referred to in Chapter Two). During past decade, with the acceleration of globalization and the development of politics、 economy, trade, finance, culture, science and technology by leaps and bounds, this boundary science has been receiving increasing concern both at home and abroad, and plays a more and more important role on the construction of national legislation.
- Legal Translation
Because of the profound contents of law, legal translation covers a wide range of subjects accordingly, from a country’s constitution or Acts of Congress, to a single-sentence fax, from a client to a legal adviser, with all sorts of public and private documents, forms and paper work in between, having in common only some link with law. As legal language usually makes or amends the law or regulates relationships between persons, legal translation, therefore, boasts its own characteristics compared with the translation of other styles. We may generalize and say that legal translation is informative, explicative and factual rather than literary or humorous, often referring in specialized terminology and complex style to realities, concepts and distinctions that are not material, concrete or physical out of the particular features of legal language.
Legal translation is the product of human exchange and social progress, through which learning, assimilation and transplantation of foreign advanced law and social system become possible. Thus we cannot shrink from the assertion that it paces up the social development on the other hand.
Although translations of legal documents 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 subjects of special-purpose translation, a branch of translation studies often snubbed for its alleged inferiority. 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. Concerned about the grave consequences occasioned by providing authentic texts of treaties, Kuner, the famous legal scholar, comments: “The growing trend toward providing authentic texts of treaties in four or more languages poses dangers to the peace and stability of the international order’.
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 with legal translation. Similarly, China’s successful accession to the World Trade Organization is partly dependent on translation. Furthermore, we can assert that after China’s W.T.O. entry, legal translation will play a more important role. For on the one hand, mountains of international laws, regulations and norms have to be translated in time, otherwise it would be impossible for the common Chinese People to get familiar with the rules of international games, let alone asking them to rise up to the challenge. On the other hand, we also have to translate a huge number of Chinese laws, regulations and rules into foreign languages in order to enhance the transparency of administration so as to meet the demand of W.T.O.
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 law, most studies are devoted to questions of terminology, while textual and pragmatic considerations tend to be ignored. There appears to be no consensus among lawyers and linguists on acceptable translation techniques, let alone on a theoretical approach to legal translation. Some linguists deny that modern linguistics and even translation theory are of much use in the practice of legal translation. In the past, both linguists and lawyers have attempted to apply theories of general translation to legal tests such as Catford’s concept of situational equivalence and Nida’s theory of formal correspondence. Although some translators claim that principles of general translation theory may be applied to legal translation, at the same time, it is argued that special methods and techniques are required to guarantee reliability when translating legal texts, now that legal language boasts its distinguished features. This and other questions are dealt with in this interdisciplinary study which attempts to conect the fallacies and traditional views on legal translation held by both linguists and lawyers.
The purpose of this thesis is just to lay down on the theory and techniques to translate the legal texts, and to attempt to cultivate translator competence by making translators aware of the “dos and don’ts’ of legal translation
Setting the tone for the interdisciplinary nature of this study, chapter one provides basic information on legal language and legal translation, pointing the significance of studying them. Chapter two presents the features of legal language, distinguishing legal texts from other texts and showing why legal language is special. Chapter three contains a comprehensive analysis of the theory of legal translation, Chapter four puts forward the approaches to legal translation. And Chapter five lists the translation errors of legal terms digested from several authoritative legal dictionaries published in our country during the past decade, trying to make a tentative analysis of these errors, and to find out the reasons leading to them.
CHAPTER TWO LEGAL LANGUAGE
When talking about the relation between law and language, the famous British philosopher David Hume (1711-1776)indicated: Law and legal system are sheer linguistic forms. The world of law originated from language and it is through words that law is established and promulgated. Both legal behaviors and legal rules concern the verbal thoughts, public declarations and debates. The practice of legal language and definitions, the description and elaboration of gesetzestext and sachverhalt, the mutual communication between legislators and judges based on gesetzestext, all of these cannot be separated from the analysis of language.
The successor of Neo-analytic Approach, Doctor N.Kolfman, Professor of Munich University concluded briefly: Law is but legal linguistics in essence.
The above statements point out clearly the close relation between law and language. Therefore, the chief purpose of studying legal language is to make the use of language to the best degree in law study and practice. In this light, it is convincing to say that the study of legal language is a branch of applied linguistics rather than that of law.
2A Legal Words
Language is the medium through which law acts. And language itself is composed of words, hence, the analysis of words is the prerequisite of studying legal language.
- Composition of legal words
Generally speaking, words of every national language can be divided into two types, basic vocabulary and professional jargon. The former takes up the majority of the language, boasting the characteristics of stability, popularity and entirety, say, ，山、地、天、A ‘ in Chinese, and ‘day, night, come, go ‘in English. The latter refers to the words and terms created and used in particular professional circles, fbr example, ‘valence, decomposition, in chemistry, and 1 complication, urinalysis’ in medicine. These words and terms are formed gradually in order to meet the demand of particular professions and are therefore mastered basically by the professionals.
In this respect, legal words can also be categorized as two kinds: legal term (professional word) and basic vocabulary. Just as The Oxford Dictionary of Law indicates: legal language is partly composed of professional words of law, such as tort, reprieve, defraud, concurrent negligence, and partly of words used in daily life such as murder, rape, guilty.
Legal term is the core of legal words, without which legal language can hardly exist. Academically, it is divided into three kinds, to wit, pure legal term, sub-legal term and quasi-legal term. Pure legal term is used merely in law study or practice, usually defining legal definitions such as，当事人Sub-legal term refers to the words frequently and basically used in legal profession say,’法人’and quasi-legal term refers to the words originally used in legal profession but widely accepted and used by
common people in daily life, for example「公民
Basic vocabulary is also an important part of legal words, some of them retain their original meanings and at the same time have particular legal meanings, for instance,’善惹’in daily Chinese basically means kindness, while in legal texts it often means ‘being unaware \ In English, similarly there are many words of this kind possessing both basic and professional meanings, and this usually is the difficulty when we leam professional language. The following are the common examples in legal English.
|Words||Basic meaning||Legal meaning|
From the above examples, we can see the difference between basic meaning and legal meaning of the same word. Apparently, it is vital fbr legal translators to master both legal terms and basic vocabulary which together make up legal words, otherwise, errors will be inevitable.
- Characteristics of legal words（ both in English and Chinese）
Compared with the daily-used words shared by the whole nation, legal words （including legal terms and basic vocabulary possessing legal meaning） have their unique professional characteristics among which the unicity of meaning’, ‘the correspondence of words’ and “the grammatical variation’ are the most distinguished ones.
I , The unicity of meaning. In the arena of a discipline, one word usually presents but one definition, and one concept is therefore depicted by only one word. That is to say, the most prominent feature of all professional words including legal words （both English and Chinese）, is the unicity of meaning. This means when using a legal word, every one should define it in the same way under any circumstance.
Specifically, the unicity of meaning in terms of legal words can be seen in two aspects. Firstly, almost every legal word defines only one particular legal meaning, and cannot be substituted by any other word. For example, in English, ^negligence ‘ （it7^^can by no meanings be replaced by ‘mistake’ （错 误）;nor uncompleted murder ‘ （谋杀未遂）by ‘failure in murder , （谋杀失败）.Similarly, in Chinese J 战惹’can not be substituted by ‘特意‘ or，存心：nor can ‘犯罪嫌疑人 , be by，犯罪可疑人Secondly, a daily-used ambiguity, once acted as legal word, retains only one meaning. For instance, suit’ is a word of many meanings, say, 1）set of articles of outer clothing of the same material 2） request made to a superior esp. to a ruler 3） civil legal proceedings or lawsuit 4） asking a woman s hand in marriage. But when acted as a legal word in legal texts it means only item3. Anther example, “同居Chinese has at least three mealn罟）:1）若干人同住在一起2 ）夫妻共同生 活3）男女双方未办理结婚登记手续而共同生活、whereas in legal texts, it refers merely to the last meaning.
- The correspondence of words. The correspondence of words is also called as the entantiosemy, to wit, the opposite relation between the meaning of a pair of words in logical term, take for instance, “specific’versus ‘general’in English and，上面‘ versus，下面‘ in Chinese. In basic vocabulary shared by the whole nation, correspondent words fall in the scope of antonym, and in legal language they are defined as entantiosemy. Entantiosemy is often quoted to describe a pair of definitions that have correspondent legal relation. This is the common characteristic shared by both Chinese and English. Examples: plaintiff （原告）—defendant （被告）；right （权利）obligation （义务）；creditor （债权人） debtor （债务人）;subject
（主体）——object （客体）;principal criminal （主犯）—accessorial criminal （仄 犯）etc.
The feature of entantiosemy is endowed by the instinctive nature of law and legal profession, because the objects of legal practice are mainly targeted towards the two sides having opposite relation of interests. Therefore, the large number of entantiosemies is inevitable in legal text.
HI ・ Grammatical variation. Grammatical variation refers to the different grammatical structure of legal words & phrases in contrast with the general grammatical rules. Take ‘不俏为’and ‘不能犯‘fbr example. Structurally, they are phrases consisting respectively of a modifier and the word it modifies. More
specifically,’彳作’力 consists of a negative adv.—‘不；the modifier, and a verb-‘作 力；the word the former modifies. In the same way,，不能犯‘ of ‘不“ and ‘能犯〔Tn terms of structure, this composure seems nothing different from the daily-used word groups, such as ‘不走’,，不笑、,，不能看‘,‘不能写‘、etc. However, they are different grammatically, for the phrases •不笑’, ‘不能看‘,‘不篇写’are
verb phrases, and therefore act as predicate in sentence, while in legal language,’不存 为，ard 不能犯，are legal definitions with the function of noun phrases, acting basically as subject or object. For instance, in the following sentence,，不作为‘is subject instead of preMcate:，公安机关的不作为侵害了张某某的合法权益’.
Compared with that in Chinese, grammatical variation appears much less than that in English, but does exist. For example, the legal term of lnot proven ‘（证据不足） is just a case in point. In its structure, ‘not‘ is an adv., ‘proven‘ is a past participle derived from ‘prove \ Generally speaking, past participle usually functions as adj., hence can be used as nothing short of predicative or attribute. But in this legal term, the past participle- ‘proven’ is used as a noun, capable of acting as either subject or object. Let’s see the following sentence:
Another difference is that in Scottish criminal law a third verdict of not proven ‘ is possible intermediate between guilty and not guilty. It is equivalent to an acquittal.
Obviously, ‘not proven’ hereby acts as subject, different from the normal grammatical rule, and this is called as grammatical variation academically.
- Etymology of modern legal words.
The etymology of legal words derives mainly from the following four sources.
- Ancient legal words.
Language is a communication system by means of words used in a particular social group created by its entire people through long term. Therefore, many ancient words have been retained and used in modem time. That is why we can find countless ancient legal words in modem legal text today, say, ‘exile（流放）；ransom（赎金） ‘verdict （裁决）‘,’summon （传票）’in English, and，自首‘ ‘大板,，诉状二 in
Chinese, etc.. In the long course of human communication, these words have gradually possessed the particular established-legal meaning, thus it is far from being necessary to abandon them and to create new ones.
H ・ New words（neologism）
We are living in a world developing at an amazing speed, with new productions, techniques and ideas mushrooming up continuously. The progress in science and technology will inevitably shape the development of superstructure including law. And the appearance of newly created legal words is one of a major influence on the realm of law. There are basically two methods of creating new legal words. The first method is ‘compounding9, which is to create new words in real term, such as computer crime（计算机犯罪）:‘smuggling of drugs（毒品走私）securities act（证 券法）:’劳动表养（reeducaiion-ihrough-Iabor） \，承包经营责任制（contract and responsibility system） \，人 民 调解（people k mediation） \ etc.. The second one is ‘the acquisition of new lexeme out of an old word’, or ‘lexical expansion’ for short, for example, the word “acbviinis什ator“ originally meant any person who administers, but in late 1980s this word acquired a new legal meaning– ‘”he people designated by the court to control the company applying for bankruptcy. Under such a circumstance, the word ^administratorhas acquired a new lexeme. Anther example, the word “park” at the very beginning was a military term referring to assembling equipment or supplies. Later, after the development of automobile, its meaning expanded, which was halting （one’s vehicle） with intention of not using it again immediately. Accordingly, a new legal term “parking ticket” came into being.
- Absorption of alien wordsf translation and borrowings）.
With the expansion of international exchanges and the accelerating trends of globalization, one state more or less will be influenced by the outside world, so will the language of this nation. In English, many legal words derive from French and Latin out of the historic reasons. In 1066, after Norman Conquest, French for a long time had been the official language in England, therefore, many French words were melted into English including legal terms, such as statute （法令）、assize （巡回审判）, warrant （搜查令）,summons （传票），bail （保释）,and so on. And the absorption of Latin words in English can date back to more ancient time. i.e. 597A.D when Christian was firstly introduced into England. That is to say, the absorption of Latin words was along the assimilation of religion. For this reason, an enormous number of Latin words can be found in legal English, say. crimen falsi （伪证罪）.poena capitals （死刑）,de facto fort （事实上的侵权行为）,action in persinam （债权诉讼）,proviso （限制性条款）,alibi （不在犯罪现场的证据）,vis major （不可抗力）.Goldfarb Ronald, the distinguished British scholar comments as follows: ,Legal language grew out of old English law, enriched by the Latinate tradition of civil law brought to England, along with the Norman French, during the Conquest. As a result, Anglo-American law is still flecked with French phrases, Old English words and Latinates../
Compared with English, the course of alien words absorbed in legal Chinese is different, because we Chinese people had our first introduction to western legal concepts via the Japanese, who not only translated but also transplanted elements of the code Napoleon and the German BGB and ZPO into Japanese law in the late nineteenth and early twentieth centuries. Since most of the legal terms in Japanese were recorded in Chinese characters, the Chinese simply adopted Japanese designations for western terms, say ,民主,,，宪法,and so on. However, later, especially after the foundation of New China we began creating our own neologisms such as，破产「专利’，，法人，,’知识产权‘ etc.. Translating terms of western （and other） legal systems is essentially a process of sinization: Chinese characters are used to signify some property or other essential characteristic of the foreign concept, thus conveying at least a general idea of the intended meaning by association. Needless to say, there is a significant loss of information which translators should attempt to restore by supplying explanations, usually in the form of footnotes. New terms can be formed in Chinese by combining two, three, or four ideograms. Sometimes the new terms consist of words from ordinary language or a combination of legal terms and ordinary words. For example, 1 民，注‘=‘后济'(civil law), literally ‘people’s law’ or law concerning people5 in the sense of private law relations. Frequently, we Chinese combine characters in a way which translates the source term literally. For example, in treaties and conventions the term habitual residence ‘ is translated into Chinese as，惯 常居住地‘,literally meaning “habitually residing place’ or ‘place where one habitually resides7. The term, however, has quite different connotations when used in Chinese laws. While some Chinese neologisms can pass fbr literal equivalents of western terms, others combine characters which attempt to ‘describe’ the meaning by signifying the particular function or other essential characteristic of the original concept. For instance, the term for ‘communism ‘is，共产主义‘which literally means ‘common property-ism/ In some instances, adequate equivalents already exist in Chinese and can be used as functional equivalents. In regard to English term ‘contract’ and the Chinese term ‘合同‘,even their etymology is strikingly similar. On the one hand, the English term ‘contract5 is derived from the Latin term wcontractus” meaning transaction, hence agreement. Going a step further, this breaks down into the following: con+trac [ptp.s. of trahere=draw] +tus=state of drawing together (Webster’s Encyclopedic Unabridged Dictionary 1989, p.317). The Chinese expression、合同 is derived from ‘合‘(come together) and，同 (agree), hence a agreement.
2.2 Linguistic Characteristics of Legal Language
Legal texts whose function is primarily prescriptive include laws and regulations, codes, contracts, court verdict, treaties and conventions, usually concerning the great interests of properties and sometimes even deciding the life and death of a suspect. Therefore, analyzing the characteristics of legal language through which this function works is of great importance to the correct comprehension of legal texts, let alone to the accurate translation.
Being a kind of professional language, legal language enjoys its unique characteristics among which accuracy and vagueness are two striking ones. Superficially, these two features seem contradictory. Yet actually it is a paradox, to wit, they are logic and complementary in essence.
The importance and seriousness attached to legal text make it essential to avoid inaccurate words or unclear definitions in legal language, fbr inaccuracy often leads to ambiguity, ambiguity to misunderstanding, and further to disputes. In this respect, accuracy naturally becomes the most conspicuous feature, which is considered as the soul and being of legal language. In reality, there were many disputes out of inaccurate words or expression. For example: (l)「a married woman or man’
- . (bondholders of companies in Manitoba’
- The remainder of the testator fs property should be divided equally between all of our nephews and nieces on my wife’s side and my niece.9
Obviously, when we read these three sentences in legal texts, we may get the different comprehensions as follows:
Sentence one can be interpreted either as ‘a married woman or a married man or as la married woman or any man \ Similarly, sentence two as，重大的涉外和重大的 港、澳、台案件由中级人民法院管辖, or ‘重大的涉外和所有港、澳、台案件由 中级人民法院管辖In the same way, sentence three as companies bondholders wRo are in Manitoba‘ or ‘bondholders of Manitoba companies ‘.
Sentence four is more confusing and complicated, which is selected from a real case concerning the division of inheritance in Arkansas, United States in 1993. Fierce arguments among the litigants were aroused out of the preposition ‘betweenFor one part stated that this sentence meant half of the testator 9s property should be distributed to all of the nephews and nieces on his wifeys side and the other half to his own niece. However, the other part argued that the right understanding of this sentence was that all of the testator’s property should be distributed equally to the nephews and nieces on his wife’s side and his niece individually.
Actually, both these understandings are reasonable, thus a dilemma falls down on the judges. After a long time of debate, the judges adopted the first interpretation whose reason was that according to dictionary between’ should be followed by two people or things only, and among’ by three or more. Later, the net verdict of this case became a joke in legal community that the result of a verdict was unexpectedly hinged on the consultation of dictionary. Nevertheless, it elaborates vividly the importance of accuracy in legal language on the other hand.
In order to avoid the ambiguity, the following meanings may be employed: Method one: the repetition of words (which is also one of the characteristics of legal language). In order to evade misunderstanding, sometimes repeating words rather than anaphora is absolute necessary. Let’s compare two sentences:
- The servant s liability stems from the duty owmed to a third person under the law to conduct himself so as not to injure others.
- The servantJs liability stems from the duty owned to a third person under the law to conduct the servant so as not to injure others.
(legal Writing, Majorie Dick Romauber, Lynn B. Squires, West Publishing Co., 1982)
Obviously the first sentence is more concise than the second one, yet confusion is inevitable when we read the former, for we cari hardly judge the right meaning of ‘himself1 between servant and a third person. On the contrary, the meaning of the second sentence is definitely clear.
Method two: the use of legal term. The advantage of using legal parlance is concise and accurate, easy to define the meaning independent of the context. For instance, the terms like FOB, CIF, CFR, etc., are frequently used in international trade contract, which define accurately and concisely the rights and duties of the seller and buyer. For the understanding and explanation of such terms have been considered as basic norm by legal circle throughout the world, therefore, using them in legal texts is a wise way.
Method three: strings of synonymous words. If studying the legal texts attentively (especially those in the countries of common law such as U.K. and U.S), we can easily find a mountain of strings of synonymous words, say, acknowledge and confess, act and deed, deem and consider, made and signed, fit and proper, terms and conditions, keep and maintain, pardon and forgive, able and willing, shun and avoid, aid and abet, cease and desist, fraud and deceit, null and void, breaking and entering, goods and chattels, and so on. The main purpose of paralleling synonyms is to enhance the accuracy of legal language, since in terms of legal meaning these synonymous words do have slight shades. Let’s study the following sentence:
Any payment to be made to the Lenders under this Agreement shall be free of and without any deduction or withholding of any tax, levy, impost, duty, or other charge of a similar nature. ..
The strings of “ax： “levy \ ‘impost \ ‘duty’ and ‘charge’ are by no means unnecessary. Although there are synonyms, there are different from one anther in terms of legal meanings.
According to Random House Webster’s Dictionary of the Law. ‘tax’ means a sum of money required to be paid to the federal, state, or local government fbr the support of government activities and services to the public at large. ‘Levy’ refers to the act of collecting or seizing property in accordance with legal authority; especially, that of attaching or seizing property of a judgment debtor in order to satisfy a judgment. ‘Impost’ means a kind of duty on goods imported from another country. The definition of duty’ is a legal obligation, whether imposed by operation of law or assumed voluntarily. And “charge’ means a formal allegation that no person has violated a specific criminal law.
From the above definitions, we can tell easily the shades among them, therefore, the string of them is absolutely necessary.
Strings of synonymous words are very common not only in legal texts of English language but in those of some other language such as French, German, yet comparatively rare in Chinese. The reason is that the level of legal construction in these developed countries is much higher than that in our country, hence the expression of legal language in these countries is accordingly much more accurate than that in China. For instance, it is unable to find the correspondent words of the synonymous words mentioned above respectively, fbr the legal system of tax in China is far from being perfectly established.
Accuracy is a major characteristic of language, but in some situations, vague expressions are found in legal texts. Are they contradictory? Let’s draw the answer from the analysis of the following example:
1、After service, the defendant is entitled to a certain period of time within which to file his pleading, or answer, to plaintiffs petition.1
Apparently, la certain period of time’ in the above example is a vague expression, yet it does not affect the seriousness and accuracy of legal contexts, on the contrary, it increases the flexibility, thus leaving some leeway for the judges to maneuver according to the specific case. Anyway, vague expressions are by no means used
without conditions, they are usually employed under the following circumstances:
- The use of vague expressions in legislative texts in order to improve the generality of the language, so as to crack down crimes to the largest extent. Take the Criminal Law of China fbr instance:
”放火、决水、爆炸、投毒或者以其他危险方法破坏工厂、矿场、油田、港 口、河流、水源.仓库、住宅、森林、农场、谷场、牧场、重要管道、公共建筑 物或者其他公私财产,危害公共安全,尚未造成严重后果的,处三年以上十年以下 有期徒刑”
(translation: whoever commits arson, breaches a dike, causes explosion, spreads poison or uses other dangerous means to sabotage any factory, mine, oilfield, harbor, river, water source, warehouse, house, forest, farm, threashing, ground, pasture, key pipeline, public building or any other public or private property, thereby endangering public security but causing no serious consequences, shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years )
II ) The use of vague expressions in legal texts especially those of political significance to increase the diplomatic and political flexibility. The following paragraph is a case in point, digested from 4the Joint Communique between the People’s Republic of China and the United States of America/
English Version: … and that it intends gradually to reduce its sale of arms to Taiwan, leading, over a period of time, to a final resolution…. The two sides will maintain contact and hold appropriate consultations on bilateral and international issues of common interest.
Chinese Version:它(美国)准备逐步减少它对台湾的武器出售，并经过一段时 间导致最后的解决……双方将就共同关心的双边问题和国际问题保持接触并进 行适当的磋商。
Taiwain issue is a focus and problem of overwhelming significance to the bilateral relation between China and U.S, vague expressions in the joint communique are a clever diplomatic means to seek common ground and shelve difference, thus successfully settling the problem.
Hence, vagueness and accuracy are not contradictory to each other but complementary, which are unitary facets of legal language.
- Use of the impersonal
Besides the main characteristics mentioned above, legal language boasts some other features, among which impersonalization is one that cannot be neglected. Bowers, the famous linguist of University of British Columbia remarks, ‘the third person form implies a neutral transmitter and it is the form in which to present a statement as authoritative’. Therefore, use of the impersonal actually reflects the main goal that law seeks-justice.
Characterized by the impersonal, legal texts are usually written in the third person singular, such as “every person \ ‘each person \ 4 every one‘ and ‘all persons and，任何人) ，人人;‘么i尾’in Chinese. The following example is from the currently laws in China and abroad.
- . Every one who, without lawful authority, confines, imprisons or forcibly seize
anther person is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.
- . Every person who contravenes this section is guilty of an offence punishable on summary conviction and liable…
2.3 Primary Role of Language in Legal Texts
The language of law is concerned primarily with “parole'(how language affects behavior) as opposed to ‘langue'(the language system), just as Sourioux( a worldwide famous legal translator) states, ?e langue juridique est un langue d “action r(the legal language is a language of action).
Today, it is generally agreed that the primary role of language in normative legal texts is to prescribe legal actions, the performance of which is intended to achieve a specific goal. Specifically, legislative texts are intended to modify social behavior by laying down rules of conduct prescribing how one shall act or refrain from acting in certain situation, for example, Article33 of the Constitution of China: ‘任何公民享有 宪法和法律规定的权利,同时有遵守宪法和法律的义务;’Similarly, treaties are agreements in which States parties agree to perform or refrain from performing certain acts as a means of attaining a specific goal; Contracts are agreements between two or more parties to exchange performances in a given situation for a specific purpose, e.g., sales contracts, loan contracts, service contracts, agency contracts, etc. In all types of instruments, the legal actions to be performed or not performed are set forth in the substantive provisions in the form of obligations, permissions, authorizations, and/or prohibitions, all of which are enforceable by law. Legal disputes arising as a result of the performance of illegal acts or the failure of a party to perform its obligations are resolved by courts of law which pronounce their decisions in the form of a judgment. The operative part of judgments (the decision) also expresses a legal action.
CHAPTER THREE THEORY OF LEGAL TRANSLATION
- Translation Theory and Legal Translation
Translation theorists who have attempted to apply theories of general translation to legal texts have frequently made misleading statements and even failed to recognize the proper communicative function of legal texts. On the other hand, lawyers who have written on legal translation tend to disregard the text and deal exclusively with terminology. This is also misleading because legal translation involves much more than terminology. Despite the emphasis on preserving the letter of law, legal translation is not a process of transcoding, i.e., translating a string of words from one language into another. As in other areas of professional translation is the text, not the word.
Since legal texts are subject to legal criteria, it follows that a theory fbr the translation of legal texts must take account of legal considerations. In the same token, it cannot disregard basic issues of translation theory. In an attempt to provide a systematic approach to legal translation, this section deals with fundamental issues of translation theory such as text typologies, translation strategy and function, and the principle of legal translation.
- Text typologies for translation
For a long time it was believed that a translation had to be either literal or free and that the type of text is decisive in determining how it should be translated. This led to the creation of texts typologies.
At the beginning of the nineteenth century, Schleiermacher, the outstanding translation theorist made a distinction between the translation of works of arts(literature and scientific texts) which he referred to as 少 bersetzen and the translation of worldly texts(common matters from business and everyday life9) which he referred to as Dolmetschen.
According to Schleiermacher^ classification, scientific texts included philosophical texts and texts of the humanities as well as texts of the natural sciences. Later a clear distinction was made between literary texts, on the other hand, and technical and scientific texts, on the other. While literary texts included philosophical texts and texts of the humanities, technical texts and texts of the natural sciences were classified as technical and scientific texts. Referring to Schleiermacher, literary critics began to use the term 0 bersetzen to denote the translation of literary texts, whereas all the other translation was regarded as Dolmetchen, thus placing technical and scientific texts on the same level with Schleiermacher^ category of worldly texts. These two groups of texts later developed into what is currently known as special-purpose text or Fachtexte. According to the above classification, there is no doubt that legal text fell under the category of special-purpose text.
- Translation strategy and function
After dominating translation for two thousand years, the traditional view that the translators9 primary task is to transfer the meaning of the source text has been challenged. Of the few truly original ideas in translation theory, one of them is surely the ‘discovery9 that the same text can be translated in different ways for different receivers. This idea liberated the translator, transforming him/her into a text producer whose task is to create a new text by selecting a translation strategy based on an analysis of the particular communicative situation. Above all, the translators should take account of pragmatic considerations: To whom is the target text addressed? Why is the target text being translated? What are the conventional rules in the target culture for producing texts for that particular purpose? Who wrote the source text? When and where was the source text written? At first it was believed that translation strategy is determined primarily by the type of audience to whom the target text is directed. Theorists have shifted the main emphasis to the function of a translation (why), which in turn also determines the target receivers(to whom).
Identifying the function of a translation as the main criterion for determining translation strategy, Hans J. Vermeer postulated his skopos theory which has modernized translation theory by offering an alternative to meaning-based translation. In traditional translation it is generally accepted that the primary task of the translator is to reconstruct the meaning of the source text in the target language. In such translations the function of the target text is always the same as that of the source text. Vermeer’s skopos theory departs from tradition by recognizing translations in which the function of the target text differs from that of the source text. Pursuant to the skopos theory, the translator’s main task is to produce a new text that satisfies the cultural expectations of the target receivers for a text with that particular function. Thus Vermmer shows that the same text can be translated in different ways depending on its function. For example, an advertising text will be translated differently depending on whether the intention is to sell the product to potential customers or to describe it at a marketing convention.
Although Vermeer claims that the skopos theory applies to all translations, he has difficulty convincing LSP( language of special purpose) theorists that it is useful for special-purpose texts as well. This is because the function of special-purpose translations is usually the same as that of the source text. Thus theorists of specialized translation still tend to insist that the goal of LSP translators is to transfer the meaning or message of the source texts as accurately as possible. Attempting to prove that function is also a key factor in specialized translation, Vermeer presents a hypothetical example of an insurance contract which, in his opinion, should be translated in different ways depending on the communicative function in each situation. As he puts it, target-language formulate are to be used in the translation of an insurance contract for use in practice, whereas source-language ones, are to be imitated if the translation is to be used as court evidence.
Vermeer is to be complimented for recognizing that all legal translation need not be literal: his example greatly oversimplifies the decision-making process of legal translators. By suggesting that translation strategy of a legal translation can be determined solely on the basis of function, Vermeer disregard to the facts that legal texts are subjected to special rules governing their use in the mechanism of the law.
Above all, legal translators must take account of legal criteria when selecting an appropriate translation strategy. For instance, in regard to contracts, the decision whether and to what extent target-language formulae should be used is determined primarily by the law governing the contract. This fact is essential because it determines whether the contract will be interpreted according to the source or the target legal system. In linguistic terms, it determines the system or reference, i.e., whether the signs in the target text refer to objects and concepts in the source or the target legal system.
Another theorist of general translation to comment on legal translation, Peter Newmark noted a difference in the translation of legal documents fbr information purposes and those which are ‘concurrently valid in the TL community/ In regard to “foreign laws, wills, conveyancing’ translated fbr information purposes only, Newmark suggests that literal or semantic translation, as he refers to it. is necessary. On the other hand, when he stresses that “the formal register of the TL must be respected in dealing with documents that are to be concurrently valid in the TL community.? In his view, such translations require the so-called communicative approach that is target 1 anguage-oriented. Newmark is one of the few linguists to recognize that the status of a legal translation in instruments is determining its use in practice.
- The status of legal translation
The status of a legal translation is important because it determines which translations can be used in specific situations in legal communication. Thus it can be said that the communicative function of a legal translation is determined by its status, i.e., whether it is authoritative or non-authoritative. Legal instruments translated exclusively for information purposes are non- authoritative: they are not vested with the force of law and are non-binding. Such translations are made by court translators who are required to swear to the accuracy and correctness of their translation. While they may be used for establishing or finding facts in court cases, it is not admissible to use them for the purpose of interpreting statues and other sources of the law. As a rule, only authoritative translations may be used by the court for the purpose of interpretation.
Vested with the force of law, authoritative translations enables the mechanism of the law to function in more than one language. Translating of normative legal instruments constituting the sources of law of a particular legal system is regarded as authoritative only if they are approved and/or adopted in the manner prescribed by law. For instance, in order to be authoritative, the various language versions of a piece of legislation must be adopted by the competent lawmaking body of the particular country. By virtue of the act of adoption, such texts are not mere translations of the law, they are the law itself Today, the authoritative texts of a legal instrument are usually equally authentic, say, the Chinese version of ‘the Agreement on China’s Accession to the World Trade Organization, translated and promulgated by MOFEIAC (Ministry of Foreign Economic and Trade and Cooperation). This means that no single text should prevail for the purpose of interpretation in the event an ambiguity or diversity in meaning is detected in the various language versions. In other words, the court should consult all language-versions and attempt to resolve the conflict by ordinary methods of interpretation.
In view of this, the status of legal translation is extremely important.
- The guideline of legal translation
For most part, modem translation theorists no longer regard translation as a mechanical process of transcoding one language into anther; Nor is a text regarded as ‘a string of words and structures to be converted into a string of equivalents’. Today, one of the main tasks of translation theorists is to define criteria to be used by the translator when selecting an adequate translation strategy. Legal translators have traditionally been bound by the principle of fidelity as the result of importance and seriousness to the letter of law. Convinced that the main goal of legal translation is to reproduce the content of the source texts as accurately as possible, both lawyers and linguists agreed that legal texts had to be translated literally. For the sake of preserving the letter of law, the main guideline for legal translation was fidelity to the source text. Even after legal translators won the right to produce texts in the spirit of the target language, the general guideline fbr legal translation remained fidelity to the source texts. Today UN Instructions for translators appear to take a more liberal approach by admitting that ‘there is always room for the exercise of stylistic judgment in the case of draft resolutions, treaties and other legal texts, or technical texts;? however, the final conclusion is that ‘fidelity to the original text must be the first consideration5.
Hence, it can be said that the principle of fidelity is the main guideline of legal translation.
- New principle of fidelity
Since the seventies especially the eighties legal translators have gradually become text producers with drafting responsibilities, thus decreasing their dependence on the source text. As active members of the drying process, they are now widely permitted to make legal as well as linguistic decisions. Possessing first-hand knowledge of legislative intent, they are no longer bound to the source text to determine the true intent. This has broadened their decision-making power considerably, enabling them to help determine what ought to be said-not only in the target text but also in the source text. Moreover, they are encouraged to cooperate with the other drafters to determine how the original intent can be expressed. Thus it can be said that the translator’s first consideration is no longer fidelity to the source text but rather fidelity to the uniform intent of the single instrument, i.e., what the legislator or negotiators intended to say. In this light, ‘fidelity9 exceeds its traditional meaning.
The declining role of the source text in plurilingual communication is a paradoxical development that initially came about as a result of the principle of equal authenticity. From the legal point of view, the source text suddenly lost its status as the prevailing instrument in matters of interpretation. In turn, authenticated translations have become increasingly independently as instruments of plurilingual communication. With the introduction of the new bilingual drafting methods, it is even becoming difficult to distinguish between source and target texts, a development which threatens to “dethrone5 the traditional source text altogether. The new independence of the parallel texts of authentic legal instruments has raised doubts among some lawyers, occasioning them to question whether a single instrument actually exists in modem plurilingual communication. Although this question is particularly sensitive for lawyers, it appears that they have come to terms with it and now admit that, as such, the single instrument exists only in theory. This, however, also has implications for translators. For example, doubts about the unity of the single treaty were raised by international lawyers in regard to Article33 (3) of the 1969 Vienna Convention on the Law of TreatiesC 维也纳条约法公约)，which provides that the terms of a treaty are presumed to have the same meaning in each authentic text. In response, the ILC(Intemational Law Commission) recognized in its commentary that the treaty remains a single treaty despite the fact it is plurilingual in expression and some diversity is inevitable. On the other hand, the principle of the unity of the single instrument places the final burden on judges to find a uniform intent for all languages version of the same instrument. At he same time, it also places translators under greater pressure to produce texts which express the uniform intent. The fear that the uniform intent of parallel texts could be reduced to a fiction by negligence and errors of translators raised serious concern about the qualifications of legal translators. Realizing that a higher degree of professionalism is required if legal translators are expected to preserve the unity of the single instrument, administrators finally began to upgrade the status of legal translators participating in plurilingual communication in the law.
- The changing role of the legal translator
Isolated from both producers and receivers, the legal translator traditionally acted as a mediator between text producers and receivers in a sterile triadic relationship (see figure 1A). it was not until the twentieth century that the legal translator succeeded in in converting his/her passive role in the communication process into an active one, finally emerging as a text producer with new authority and responsibility. Today legal translators are encouraged to strive for linguistic purity and responsibility. In keeping with the principle of equal authenticity, translators must attempt to preserve the single instrument by producing a text that expresses the uniform intent.
While legal translators must understand the source text in order to be effective text producers, it is generally agreed that they should not overstep their authority and interpret the text in the legal sense. Above all they must avoid making value judgments when determining the uniform intent of single instrument. To promote objectivity in translation operations, institutions now attempt to coordinate the situative factors (time and place) of the production of parallel texts. There is a typical example: in the late 19709s legislative reforms in Canada led to the introduction of new bilingual drafting methods which have revolutionized the role of the legal translator by transforming him/her into a co-drafter with broad decision-making
authority. As a result, the translator’s relationship with the other text producers, all of whom are encouraged to interact with the actual receivers(see figure 1). the goal is to coordinate the situational factors of production to the point that all text producers of the parallel texts of a legal instruments participate in the same act of communication. To promote the uniform interpretation and application of parallel texts, the ultimate goal is to coordinate the situational factors of both production and reception, thus resulting in a unique communication process previously unknown in translation history.
Figure 1: Changing Roles of the Legal Translator
- TEXT PRODUCER
- Creativity in legal translation
In their new role as text producers, legal translators are increasingly assuming tasks previously reserved strictly fbr drafters. Whole both translators and drafters are frequently snubbed as “mechanical word polishers,5 Elmer Driedger strongly denies such accusation. In his opinion, fca good draftsman is more than a mechanical word polisher; he is one of the creative participants in legislative processDriedger^ words also hold true fbr the modem translator who, as 4a writer of laws must have the freedom of an artist,5 i.e., ‘the freedom to use to the fullest extent everything that language permits5. While some may deny that this is creativity, they are reminded that creativity manifests itself differently in different areas of translation.
Then there is a question which is of concern to all legal translator: to what extent legal translators can be creative with language in parallel texts and still preserve the unity of the single instrument? Since even slight changes in language may affect the substance, translators must always take accoufit of legal factors when making linguistic decisions. As Newmark once remarked: ‘Differences in terminology and function must be noted and as much attention paid to the content as to the intention and all possible interpretations and misinterpretations of the text’* While such considerations caused Newmark to conclude that legal translation is ‘more restricted than any other form/ they also shed light on the decision-making process of legal translators who must decide when, where, why, how, and to what extent they can be creative.
At the beginning of the twentieth century the letter of the law was still regarded as inviolate and it was generally believed that, for the sake of promoting uniform interpretation by the courts, every word of the source text had to be faithfully reproduced in the target text. Today the pendulum had swung in the opposite direction, and even lawyers widely acknowledge that it is the sense that counts, not words. Therefore, it is generally agreed that translators can make basic alterations in syntax without affecting the substance of legal rules and common operation. In particular, translators should be creative with syntax not fbr the sake of creativity itself but to achieve greater clarity, emphasis, and efleet. In addition to change in syntax, translators sometimes make stylistic changes as well. In west Europe and American, approaches such as ‘disregarding the one-sentence rule, deletions, creating a loser texture and the use of paragraphing and restructuring the text’ are widely accepted. Yet in China, there is no consensus on this respect.
- Profile of the legal translator
Generally speaking, all LSP translation is interdisciplinary in nature. Thus it follows that, in addition to translation skills, specialized translators also need a certain amount of expertise in the particular subject matter. Accordingly, it follows that, if translators are to make legal as well as linguistic decisions, they must be competent in both translation and law. Legal competence presupposes not only in-depth knowledge of legal terminology, but also a thorough understanding of legal reasoning and ability to solve legal problems, to analyze legal texts, and to foresee how a text will be interpreted and applied by courts. In addition to these basic legal skills, translators should also possess extensive knowledge of the target legal system and preferably the source legal system as well. Moreover, drafting skills are required a basic knowledge of comparative law and comparative methods. Not surprisingly, such ideal translators simply do not exist, yet it indicates the qualifications of the qualified legal translators and the directions where we legal translators should endeavor to do.
- History of Legal Translation
- History of legal translation in foreign countries
Dating back to the wars between Egypt and Mesopotamia, the two dominant rivals of the early Eurasian world, the oldest known recorded evidence of legal translation is the Egyptian-Hittite Peace Treaty of 1271B.C. Two versions of the Treaty were discovered, one in hieroglyphic inscriptions in several Egyotian temples and other in cuneiform characters inscribed on tablets unearthed in Hittite capital of Bogazkoy. Both are believed to be translations; however, the original was never found.
Legal translations that proved by solid historic evidences were in western Europe of the Middle Ages after the shattering of the western Roman Empire by German tribes. At that time, national languages in Europe were still underdeveloped, as a result of which legal instruments and documents were recorded in Latin. In Germany, fbr example, there were no uniform spoken language and no written language. Since lawmakers and judges were not always versed in Latin, translation was essential in both the legislative and judicial process. According to Philipp Heck, a legal historian, strict literal translation was the rule of the day fbr medieval translators of legislative texts. Convinced that historians could not objectively evaluate the sources of medieval law without taking account of the then practiced translation techniques, Heck took it upon himself to systematize the techniques used to translate legal instruments and documents in Germany in the early Middle ages. His book u bersetzungsproblem im fruhen Mittelalter is a noteworthy contribution not only to legal history but also to the history of translation.
Latin survived the Middle Ages as the dominant language of international law and remained the principal diplomatic language until its supremacy was challenged by the national languages of the new prestigious western states, such as France, England and Germany. Since then the translations among these national languages became the mainstream. There are several legal translations that boasting epoch-making significance, say, the translation of code Napoleon of 1804 from French to German in early 1800s, the translation of Austrian Civil Code of 1811 from German to ten languages, to wit, Bohemian, Croatian, Hungarian, Italian, Polish, Russian, Serbian, Slovenian and even Latin, and the translation of U.N Charter of 1945 from English to the main national languages of all over the world.
Hence, it can be said that the development of legal translation reflects the progress of human society in some respect.
- History of legal translation in China
The history of legal translation in China dates back to as early as thousands of years ago, yet legal translation in real term began in 1840s, last years of Qing Dynasty with Lin Zexu as the fdrerunner( who was evaluated as the first Chinese opening eyes to the outside world). During the Opium War, Lin founded the first translation house-Tbngwenguan in Canton where for the first time in history translated a foreign legal literature, Law of Nations into Chinese in 1844. The translation of this book (which was written by Emer De Vatfell, a Swiss legal scholar) boasted the significance of milestone in the history, and the year 1844 was thus regarded as the beginning of China’s legal translation. Later, legal translation began to be shaped as an individual branch of translation gradually as many foreign laws or law monographs were introduced into China, such as Wheaton’s International Law translated by W.A.P. Martin, an American missionary, Code Napoleon by M.A. Billequin, a French scholar, Penal Code of Strait Settlements by Wang Feng Zao, and Woolsey’s International Law by Feng Yi and W.A.P. Martin.
After 20th century, legal translation mushroomed up, more legal literature of famous foreign scholars were published in Chinese, fbr instance, the legal masterpieces of R.stammler, Leo Duguiit, G.jellinek, M.hauriou, G. Radbruch, O.W.Holms and R.Pound were translated into Chinese successively during this period.
All these translations played an active and constructive role on the understanding of foreign countries, the reform of feudal society, and did a brilliant contribution to the establishment of modem legal structure in China. Yet the legal translation then was basically the rending from foreign languages to Chinese and few from the other side, i.e., from Chinese to foreign languages. Out of the particular historic background, the legal translation witnessed a lopsided development which actually mirrored the humiliation and plague that we Chinese experienced during that time.
After the foundation of New China, especially since 1978, a brand new leaf of legal translation was unrolled. Not only more and more foreign laws and legal literatures have been introduced into China, but also many Chinese laws and legal literatures by Chinese scholar have been translated into foreign languages, thus turning around the past deformed situation. At present, countless papers on legal translation are published annually, the foreign translations follow the heels of almost every new law and the relevant international exchanges are unprecedentedly active. We can say proudly that the cause of legal translation has reached the highest stage in history.
CHAPTER FOUR APPROACHES TO LEGAL TRANSLATION
- Approaches to Legal Translation from English to Chinese
Basic vocabulary possessing professional definition in legal text and legal terms (see. 2.2.1) together make up the legal words. The latter are the key of legal words accounting for the majority, yet there are no techniques in real term for the translation of them. The only approach is to practice and accumulate the interdisciplinary knowledge through long term, and the toboo is taking words too literally (see chapter 5). In this light, this section focuses on the translation approaches to basic vocabulary, attempting to summarize the translation techniques for translating the words of non-legal terms.
- Translation of basic vocabulary in legal text
Generally speaking, the basic vocabulary usually appears as three syntactical functions in legal text: noun, verb and preposition. Considering the huge amount of the basic vocabulary in legal text, words but of typical significance in E-C legal translation are listed and analyzed as follow:
- Models of the translation of some typical nouns in legal text.
Model 1. Action
“Action ‘is of course an everyday word, nonetheless, when used in legal language, its meaning changes considerably, for example:
Court actions fall into two broad categories–civil and criminal.
According to the basic meaning of action stored in our brain, we are liable to translate this sentence 法院的行为分为两大类:民事行为和刑事行为Yet
actually action’ hereby does not mean ‘deed’ but ‘a charge or a case for consideration by a court of lawTherefore the right rending of “action ‘ shall be，诉 讼‘，’案件‘o「官司，.So this sentence should translated .皿q: ‘法院的诉讼分为两大 类:民事诉讼和刑事诉讼Accordingly, kan action at lew’ should be translated into ‘法律诉讼‘an action for damages’ into，请求损害赔偿的诉讼，and ”action decided against/in favor of s.b「，某人胜诉I败诉，.
Model 2. Bar
The translation of ‘bar’ shares some similarity with “action \ i. e., its legal meaning is different from its basic definition. Nevertheless, it is more complicated than ‘action: Let’s contrast the following two sentences:
The accused at the bar has the right to make dejence.
The Bar Association is influential in the United States of America.
‘Bar’ in the above two sentences has different legal meanings, so the right judgment of its definitions in legal texts is of essentiality. According to Webster’s Dictionary of Law, ‘bar’ may be explained in two different definitions: A. a division marker between the part in which the business of the court is carried on and the part intended for the accused (法庭围栏,指被告席、审判席? . B. the member of profession of lawyer (律师业、律师界)• Hence, these two sentences shall be translated into:
Model 3. Nouns ended with
In basic vocabulary, nouns ended with ‘ee’ usually refer to the people who are the objects of a certain behavior. In legal text, nouns of this kind appear frequently, for example:
The law, then, recognize that performance short of precise and exact performance will in certain circumstances preclude the promisee from treating the contract as discharged by breach.
Apparently, “promisser‘ is the person who promise and “promisee’ accepts a promise from the former. So in legal text, we translate them into，要约人‘and ‘受约 A respectively, thus the translation of this sentence 那么，法律承认，没有严格履 行合同,在某些情况下会使受约人不再把违反合同看作合同的解除.
Translations of nouns of this kind bear significant similarities, that is to say, the translations should be in accordance with their legal terms in Chinese, for example, ‘promisee ‘ shall be translated into ‘受约人 \ instead of4 接受承诺的人 1 that we prefer to translate in general situation, which is the point worthy of our attention. The followings are the common used nouns of this kind and their accurate translations collected by the author:
drawee受票人 alienee受让人 libelle被诽谤者 blackmailee被勒索者 trustee受托人 divorcee离异者 payee收款人 obligee债权人 baringinee买方 legatee受遗赠人 licensee持照人 testee 测试对象， indorsee被背书人 pledgee质押承受人
IL Models of the translation of some typical verbs in legal text.
Model 1. answer
- Answer‘ is nothing less than a common word, anyhow, we cannot take it for granted that its Chinese translation is as simple as ‘回答’or ‘答复’in legal text. Take the following sentence for example:
According to the law, the defendant can either answer by mouth or in written.
When translating, we should make it clear that answer hereby is in a particular kind of context, to wit, legal text, hence it specifically refers to replying to a charge. In this respect, “answerf should be translated into，答辩 : and the whole sentence thus 根据法律的规定,被告既可以口头答辩,也可以书面答辩:
From the model above, we can say that the translation of ‘simple’ verbs is not so easy, fbr we have to get familiar their corresponding legal terms in target language, otherwise the legal text of Chinese will lose the most important characteristic of legal text, say, accuracy (see 2.2.1 and 3.1.7). The followings are the most frequently used verbs in legal text: appear, bring, cover; find, exercise, hear, pronounce, rule, sentence, etc..
Respectively, “appear’ in legal text should be translated into ‘出庭、到庭‘Jbring’ into，提起(诉讼)\ “cover’ into，投保、给 保险\，find” into，判定,查明； exercisef into，行使、实施：‘hear’ into，审理.pronounce * into，宣判、判 决’，* into，裁定、裁决‘ and “sentence, into ‘判决’under normal circumstances.
The examples may be referred to as follows:
- The plaintiff and the defendant appeared before the court in that case 在那个案件中,原告和被告都到庭了。
- The policeman brought a charge against the fast driver. 警察对那位超速行车者提起指控。
- You should get yourself covered as soon as possible.
4.If a man is found guilty and sentenced to imprisonment, he is handed over to officials of correctional system
- The courts shall exercise judicial power independently free from any interferance. 法院应当不受外来干涉独立行使审判权。 ‘
- The Constitution stipulated, all cases handed by People s Courts, expect for those involving special circumstances as specified by law, shall be heard in public. , 宪法规定:“人民法院审理案件,除法律规定的特别情况外,一律应当公开进沅
- The court pronounced the accused guilty last week.
- …actually made a judgment by default’ against the People s Republic of China, ruling that the Chinese Government should pay the plaintiff’.
- The court sentenced the offender to death.
III. Models of the translation of some typical prepositions in legal text.
Techniques for general translation can be applied to the legal translation of preposition, yet considering the linguistic features of legal language, this section attempts to list some special approaches through typical models as follows:
Model 1. Against
In legal text bg。加犷 is usually translated as:’触犯、违反、对 发生法律关
- Every one should not offend against the law.
- She brought a suit against him。
Model 2. By
When translated into Chinese, “by* is often rendered as，依照、根据.按照，,for example:
- The organization of Peoplek Court is prescribed by law 人民法院按照法律规定进行组织。
- The Chinese Government protects, by the lawtthe resources invested by a foreign participant in a joint-venture.
The translation of cunderf is different in legal text from that of general text, fbr this preposition basically refers to a lower place, whereas in legal documents it is similar to ‘according to’, ‘ in terms of\ so the Chinese words such as ‘依据/根 据 的规定,在 的规定下‘are usually used rather than ，在 的下面.’ when translating it For example:
- Under the U.S. Constitution, the federal Government is divided into three branches: the executive, legislative and judicial, each supposed to be independent and be able to check and balance the others.
- Federal jurisdiction covers cases which rise under the Federal Constitution or under any federal law or treaty, and also cases which affect people outside the jurisdiction of a single state.
4.1.2 Translation of ancient English words in legal text
The use of ancient English words in large quantity is one of the linguistic characteristics of legal English, which helps make legal text concise, authoritative, and formal. These words, such as ‘hereby, thereafter,‘ are scarcely seen in other styles of text in modem times, therefore, when translating them, we shall retain their linguistic feature as intact as possible, so as to follow the guideline of fidelity. The ancient English words often appeared in legal text are listed as follows:
|hereby由此，以此，特此 hereto至此，关于这个 therefor 因此 thereto在那里 heretofore直到此时 hereafter此后，据此 whereby靠那个||herein其中，在此处 hereof至此，由此|
hereunder 在下面 therein 其中
thereof由此，因此thereon关于那，在其上 hereinafter 在下文 hereinbefore 在上文
hereinabove 在上文 hereunto 于是
therefrom由此，从那里 whereof关于那个 wherein在那方面 aforesaid上述的
The Chinese translation of each word above is for reference only, actually when we translate these ancient words we should do flexibly, for the role of legal translator is an active text producer in keeping with the principle of equal authenticity, (see 3.1.5) The following examples are typical:
- The following terms used in these rules shall have meanings hereunder assigned to them：
Literally, there is no correspondent translation to ^hereunder’ in Chinese, yet the function and meaning of this ancient word has been mirrored successfully.
- A contract shall be an agreement whereby the parties establish, change or determinate their civil relationship. Lawfully established contracts shall be protected by law.
Similarly, we can find no correspondent Chinese word to ‘whereby’ (which equals by which) in translation, but the meaning and linguistic characteristic of the source sentence have been retained intact in the target sentence.
- This circular decree is hereby issued in order to check resolutely the aforesaid illegal acts, and strengthen the protection of and the administration concerning the precious and rare wild animals:
This example, however, is different from the above two, because the ancient words一“herebyf and ‘foresaid’ are translated as ‘秸 and 2迷’respectively.
- These Rules are formulated in accordance with the provisions of the Statistics of the People s Republic of China (hereinafter referred to as the Statistics Law) 根据《中华人民共和国统计法》(以下简称《统诜法》)的规定,制定本实施细则
Hereinafter \ as mentioned above, is usually translated as ‘在下文’，but when used together with ‘referred to as ； it is an established practice to translated as ‘以下 简称二
In a nutshell, the translation of ancient English is a flexible task rather than a mechanical one. Only on the basis of full comprehension of the source text and correct practice of translation approaches, can successful translation be achieved.
4.13Translation of subordinate clause in legal text
Appositive clause, attributive clause and adverbial clause among others are common structures in legal text, which are conducive to make the legal language accurate and logical. The section focuses on the techniques for translating these subordinate clauses.
- Appositive Clause.
Following a certain noun and connected by that or other conjunctions, an appositive clause is to explain the specific content of the noun, thus making the meaning of the whole sentence accurate and clear. There are basic four translation approaches to translating such clause, say, literal translation, order transformation, additions and division.
- Literal translation.
Literal translation is usually used in the sentence whose structure is relative simple, which means translating the clause word by word according to the basic sequence of the source text. For example:
- We demanded a guarantee that no similar incident would occur again. 我们要求保证不再发生类似事件.
- The thought cam to him that maybe the criminal had fled the city. 他突然想起可能罪犯已经逃出城了。
- Can you produce any evidence that he was not at home that night? 你能不能提出证据,说明他那天夜里不在家?
- Order transformation
As mentioned earlier, an appositive clause usually follows a noun, yet when we translate the sentence, we put the translation of the appositive clause ahead in order to make the translation comply with the expression order of the target language, and this is defined as order transformation in legal translation. This practice is employed under the circumstance when the clause is comparatively long, for example:
- The news that we had promulgated the seven laws adopted at the second session of the Fifth National People s Congress quickly spread through the world.
- It does not alter the fact that he is the right man responsible for the delay. 延误由他负责,这个事实是改变不了的。
In legal text it is particular important to express the intended logical relations correctly. Therefore, the additions of logical connectors of the target language are of necessity and significance when we translate legal sentences into Chinese. The Chinese term such as ”即，就是，认为“or punctuation marks like colon* or Mash’ are often used in this case, for example:
- Once equity had established its right to supervise guardians and wards, it followed as a corollary1that the court of Chancery had the power to appoint guardians.
- There is a conflict of authority as to whether a civil action may be maintained to recover damages for injury to or death of a woman who consents to or procures an abortion. The reasoning of the courts denying a recovery is based on the promise that the femalewas either an accomplice in the crime of abortion or was a willing and consenting participant therein.
对一位同意堕胎或设法堕胎的妇女的致伤或死亡而索要损害赔偿金的民事诉 讼,可以不可以给予支持,对此权威人士有着不同的见解。法院拒绝索取损害 赔偿金的理由是从这一前提出发的,即该妇女是这一堕胎罪的共犯,或者是愿 意并且同意参加这一犯罪行为。
- That illogical qualification shows how flimsy is the argument that capital punishment is a deterrent to murder.
- Have you heard the news that his false charges have wrongly incriminated over ten people?
- All of us know the truth that he is innocent.
- Attributive clause
Translation approach one: preposing.
Translating the attributive clause into the Chinese structure of ‘ 的and putting it ahead of the modifier is applicable to either restrictive clause or unrestrictive clause, which is defined as preposing. The followings are examples.
- Any fact that testifies to the real circumstances of a case is evidence. 证明案件真实情况的任何事实都是证据。
- Criminal cases over which the Supreme People s Court has jurisdiction as the court of first instance are major criminal cases with an impact on the entire country.
Translation approach two: postposing
The relative simple clause is usually postposed when translated into Chinese fbr instance:
- After hearing, the jury resumed their discussion, which continued well into the night.
- They are trying to find out whether there is something which in fact prevents lawyers from getting evidence.
Translation approach three: translating into adverbial.
Sometimes the relation between the main sentence and attributive clause is similar to that between the main clause and adverbial clause, under such a circumstance, translating the attributive clause into adverbial is a kind of approach. For example:
Naturally, the plaintiff, who thinks he has suffered an injury from an unlawful act of the defendant, sets the civil proceedings going by asking for the aid of the law.
Translation approach four: translating into an independent sentence.
This is a common means when we translating the unrestrictive clause, for instance:
- The plaintiff had talked to the attorney, who assured him that the action would decided in favor of him.
III. Adverbial clause.
Adverbial clauses often led by the words such as ‘when, where, as’ are to define the time, place or the reason, etc. The section focuses on the translation of the most common adverbial clause, to wit, the adverbial clause of time, which represents the translation techniques to a considerable content. The followings are some typical approaches to translating the adverbial clause led by ‘when’.
Approach one: translated by the Chinese expression ‘当 时’.For example:
When the suspect surrendered himself to justice after being absent for over a month, the policemen were very excited.
Approach two: translated by the Chinese expression ‘在 之后’・ For example:
When the murder happened, he left his house.
Approach three: translated by the Chinese expression ‘在 之前二 For example:
When the police got there, the robber had escaped.
Approach four: translated by the Chinese expression ‘如果 就For example:
Works of commercial law today give a one-sided view of the law of importance to commercial dealings when they are limited to the traditional framework of commercial law and neglect a whole series of measures (taxation, regulation of exports, credit control, wage policies, etc.) which are of primary importance to trade and commerce.
商标著作如果停留在商法的传统框框里而忽视一系列首先影响商业的措施: 税务制度与对外贸易规定,信贷条件与工资政策等等,这些著作就只能在有关商 业的规定方面给人以残缺不全的知识.
Approach five: translated by the Chinese expression ‘由于,因为’in Chinese. For example:
When the legislator, deliberately or not, uses terms or expressions which are not absolutely precise, a considerable scope for interpretation is open to the judge who can still maintain the full respect owned to the text itself.
Approach six: deletions.
At the beginning of the twentieth century, the letter of law was still regarded as inviolate and it was generally believed that every word of the source text had to be faithfully reproduced in the target text. Today, the pendulum has swung in the opposition direction, and even lawyers widely acknowledge that it is the sense that counts, not words. And the deletions of the word such as ‘when’ in some condition are perfect examples.
When a court adjudicates a case of public prosecution, the procuratorate shall send personnel to appear in court to support the public prosecution, unless the criminal conduct is relatively minor and the court agrees.
When the procuratorial personnel appearing in court discover that there are illegalities in the adjudication activities, they have the right to present the tribunal with opinions on how to correct them.
4.1.4 Translation of long sentence in legal text
The complicated structures and contents of long sentence determine the translation of them a difficult job. Of course the full comprehension is the basis, and the approaches to translating the subordinate clauses are applicable, for long sentences usually consist of several clauses. Additionally, two basic methods are usually practiced, i.e., division and restructuring. The former refers to dividing the long modifiers into several parts, and the latter to changing the linguistic order of the source sentences and restructuring according to the sequence of the target language. Yet in most circumstances, these two methods are employed simultaneously in order to obtain better result. Anyhow, either division or restructuring should be logical and clear language should be used to mark the transitions. The followings are cases of point:
- Under this payment method, the exporter is to ship the goods ordered and deliver the relative shipping documents to the buyer abroad through the remitting bank and the collecting bank with instructions not to release the documents to the buyer until the payment for the goods is made.
Taking advantage of the approaches mentioned above, this sentence is translated into Chinese as follows:
- Any failure or delay in the performance by either party hereto of its obligations under this Agreement shall not constitute a breach hereof or give rise to any claims for damages if and to the extent that it is caused by occurences beyond the control of the party affected, including, but without limiting the generality of the foregoing, acts of governmental authority, acts of God, strikes or concerted acts of w orkmen, fires, floods, explosions, wars, riots, storms, earthquakes, accidents, acts of a public enemy, rebellion, insurrection, sabotage, epidemic, quarantine restrictions, shortages of labor, materials or supplies, failures by contractors or subcontractors, transportation embargoes, failures or delays in transportatibn, rules, regulations, orders or directives of government or any state, subdivision, agency or instrumentality thereof or the order of any court of competent jurisdiction.
This paragraph is but one long sentence, cited from the Force Majeure of International Economic Contract, whose main structure is ‘Any failure or delay…shall not constitute… if and to the extent that.. / This is where the difficulty lies in. In terms of the sequence of Chinese expression, taking the advantage of division, rearrangement and the basic translation techniques, this sentence is therefore translated as follows, which successfully ensures the internal consistency of presentation and terminology:
本合同任何一方未能按合同履约或延误履约之行为,如果是由于某些无法控 制的事故所致,则上述行为并不构成对合同的违反,也不导致任何索赔要求. 在并不限制上述事件有起广泛意义的前提下,该类事件包括:政府行为,天外， 工人罢工或工人联合行动,火灾,水灾,爆炸,战争,暴乱,风黑 地震，意外 事件,社会公敌的行为,叛乱,暴动,人为破坏,流行病,检疫隔离,劳力短缺, 原材料或日用品短缺,承包者或分包者未能履约,禁运,运输单位未能履约或延 误履约,任何政府和国家及其下属部门、机构或组织的条令、规定、命令或指示, 任何主管法院的命令.
4.2Approaches to Legal Translation from Chinese to English
- Basic requirements of legal translation from Chinese to English
There are some basic requirements of translating legal documents from Chinese to English out of the linguistic characteristics of legal language and professional nature of law. The section attempts to list the most important ones.
- The requirement of using formal English words and expressions.
The frozen style of legal text determines the words in legal documents different from those in newspaper or magazine (see 2.2.1). Therefore, we shall select the formal words and expressions to reflect the linguistic features of the source text so as to meet the principle of fidelity. The followings are examples:
(translation: Liu xx, this court has made a judgment of divorce between you and Wang xx. You are requested to receive the judgment at this court within six days starting from the publishing date of this announcement. Otherwise, the verdict would be deemed to have been received.)
In this example,，要求‘and ‘视为‘are translated by two formal verbs, to wit, “request’ and ‘deem’ respectively, instead of by less formal verbs like “ask’ and ”consider \ Apparently, the use of formal verbs reflects perfectly the solemnness of judicial text.
(translation: Modification, dissolution or termination of a contract does not deprive a party of the right to claim for damages.)
Similarly, formal words like “modification \ dissolution’ and ‘termination 1 are employed rather than the informal words such as ‘alter \ ‘cancel9 and lend’ in this translation.
- The requirement of preciseness.
This requirement in the last analysis is decided by the accuracy of legal language.
(translation: The jury acquitted the accused of the charge of murder.)
If we consult a Chinese-English dictionary, we will get several English words as the translation of ‘被告say, respondent, accused, libellee and defendant, however, these three words are not equal. According to Webster’s Dictionary of Law “respondent * is the person involved in a case of divorce, “accused’ is the one charged in a criminal case, libellee * in a maritime case and kdefendant’ in a civil one. Therefore, considering the nature of murder,‘被告‘in this sentence can be translated only by ‘the accused’ instead of others. Some legal translators label the selection of this kind as the requirement of term consistency. Another example:
(translation: The licence of technology transfer usually falls into three kinds, ie, simple licence, sole licence, and exclusive licence.)
In legal English, words even those having similar meanings often possess different legal definitions, and the inappropriate selection will inevitable lead to disputes. Hence,，技术转让 shall be translated but into technology transfer”similar words such as ‘assignment’ cannot act as the substitute for “transfer \ for the former is used only in the contract of capital and debt.
Legal text brooks no mistakes in choosing words or expressions, a minor error may result in terrible dispute, this is what a legal translator should always keep in mind.
- The requirement of conciseness.
4The simplest, most concise language is the best fbr legislation/ as Jean-Claude Gemar puts it, using concise language to define accurate information is marking a characteristic of legal language especially of legislative text. Therefore, expressing accurate and adequate information in words as few as possible is anther important requirement for legal translation. Let’s see the following example: Example 17
(Translation one:If the interpretation of the English version is different from that of the Chinese version, the latter shall be taken as the standard.
Translation two: In case of any misinterpretation of the English version, the Chinese one prevails.
Translation three: In case of any discrepancy between the English and Chinese versions, the latter prevails.)
All of the above translations accord with the requirement of precision, yet the first one is not concise enough, hence the second and third translation are better. Example 2:
(Translation one: The vendee shall effect registration with the real estate registration office.
Translation two: the vendee shall register with the real estate registry.)
Obviously, translation two is mush shorter than translation one, moreover, the second translation is more accurate in information expressing. In this light the requirement of precision and that of conciseness are not contradictory but complementary to each other in essence.
4.2.2 Translation of the Frequently Used Sentential Forms in Legal Text
Commands and requirements, permissions and authorizations, and prohibitions are most common sentential forms in legal text. And the translation of these patterns is comparatively fixed due to the frozen style of legal text. The following are the basic means to translate them from Chinese to English.
- Legal commands and requirements
A legal command imposes a duty upon the legal subject to act in certain manner under given circumstances. Legal commands are mandatory provisions; hence failure to act accordingly is a violation of the law punishable by sanction. The English practice of imposing legal duties are usually strong verbs such as ‘shall’ and ‘must‘ or the imperative structures say, “it is the duty of… \ 4 have the duty to… ^etc. similarly, in Chinese legal text, the expression like，有 的义务’,’必须’,etc. The following translation examples are from the current laws:
It is the duty of citizens of the People’s Republic of China to pay taxes in accordance of the law.
Parents have the duty to rear and educate their children who are minors, and children who have come of age have the duty to support and assist their parents.
For vessel holds or containers used for carrying perishable foods, the carrier or the organization using the containers shall apply for inspection before loading.
All foreign enterprises, other foreign economic organizations as as Chinese-foreign joint ventures within Chinese territory shall abide by the law1 of the People s Republic of China.
An application must be made in writing
- Permissions and authorizations
In addition to imposing duties, legislative texts also confer rights, privileges, and powers on legal subjects in the form of permissions and authorizations. Although their functions differ in some degree, the same modals are used to express both permissions and authorizations: “may, (shall)have the rights of enjoy rights of, be entitled to, may’ in English and享)有 的权利,有权 ,‘ in Chinese. Examples:
Enterprises as legal persons, individual businesses and individual partnerships shall have the right to use and lawfully assign their own names.
Citizens of the People s Republic of China have the right to material assistance from the state and society when they are old, ill or disabled.
Citizens shall enjoy the right of personal name and shall be entitled to determine, use or change their personal names in accordance with the relevant provisions.
A civil juristic act may be in written, oral or other forms.
Prohibitions are legal speech acts with the illocutionary force of forbidding. The most common type of prohibitions are acts that persons and/or an authority are explicitly forbidden to perform and whose performance is punishable by sanction. Prohibitions are expressed in English with the negation “shall not, may not, shall not, not allowed’ and the structures like ‘be obliged to refrain from doing sth\ In Chinese they are expressed with the terms such as，严禁,禁止，不得etc..
/.国家保护野生动物及其生存环境,禁止任何单位和个人非法猎捕或者破坏。 The state shall protect wildlife and the environment for its survival, and shall prohibit
the illegal hunting, catching or destruction of wildlife by any unit or individual. 2.广告内容必须真实、键康、清晰、明白,不得以任何形式欺骗用户和消费者。
The content of an advertisement must be true to facts, sound, clear and easy to understand and must not cheat users and consumers in any way.
A short-term loan obtained from abroad may only be used for the turnover of circulating funds and shall be obliged to refrain from being used for investment projects in fixed assets.
All judgments and orders of the supreme People s Court, as well as judgments and orders that may not be appealed according to law or have not been appealed within the prescribed time limit, shall be legally effective.
4.2.3 Translation approaches to the structure of’的’in Chinese Legislative text
A piece of legislation is a means of securing a benefit to some person(s) by creating an obligation or conferring a right, privilege or power. Thus all legal rules contain two basic elements: legal assumption and action. The following is two simplified example of the two elements in mandatory order:
由司法机关依法追究刑事责任。 (legal action)
Where any Quaker refuses to pay any church rates, if any churchwarden complains thereof
one of the next Justices of the peace, (legal assumption)
may summon such Quaker. (legal action)
These two basic elements of legal rules are of universal application, yet in each language the specific expression are different boasting particular unique features. In English there are many ways to express assumption such as in case \ etc, whereas in Chinese, the structure of ‘的’is the most common means to express legal assumption, which has various grammatical functions, such as subject, object and predicate of the sentence. Hence the translation of this structure is of great significance. Basically the structure of’的’may be translated by the clauses led by “ift in case, where, when‘ or ‘ who: and so on in terms of the specific legal text.
- Translating into the conditional clause led by 可For example:
(translation: If a citizen, a legal person or any other organization, during the period prescribed by law, neither brings a suit nor carries out the specific administrative act, the administrative organ may apply to a people s court for compulsory execution, or proceed wifh compulsory execution according to law.)
集会、游行、示威在国家机关、军事机关、广播电台、电视台、外国驻华使 领馆等单位所在地举行或经过的,主管机关为了维持秩序,可以在附近设立临时 警戒线,未经人民警察许可,不得逾越。
(translation: If an assembly, a procession or a demonstration is held in or pass by places where state organs, radio stations, television stations or foreign embassies or consulates are located, the competent authorities may, with a view to keeping order, establish temporary security lines, which shall not be crossed without permission by the people s police.)
- Translating into the clause led by case9.For example:
(translation: In case of graft or serious dereliction of duty on the part of general manager, deputy general managers or other high-ranking managerial personnel, they may be dismissed at any time by a decision of the board of directors.)
(translation: In case that a certified public account has been found unqualified for the office, the finance department that originally approved the registration shall cancel the registration, revoke the certified public accountant certificate, and report the case to the Ministry of Finance for the record.)
- . Translating into the clause led by kwhcre/wherever\ For example:
(translation: Where other clients entrust a certified product account to provide services, and there is a need to consult the relevant data and documents and carry out investigations, the matter shall be handled according to the agreement contained in the letter of attorney executed in accord with the law.)
(translation: Wherever a registered trademark is used, it shall bear the words ‘Registered Trademark’ or a sign indicating that it is registered.) IV. Translating into the clause led by ‘when \ For example:
人民法院接到起诉状或者口头起诉,经审查,符合本法规定的受理条件的, 应当在7日内立案;不符合本法规定的受理条件的应当在7日内通知原告不予受 理,并说明理由。
(translation: When a people s court receives a bill of complaint or an oral complaint and finds upon examination that it meets the requirements for acceptance as specified in this law, it shall within seven days file case; if the complaint does not meet the requirements for acceptance as specified in this law, the court shall within seven days notifying the plaintiff that the complaint has been rejected and provide due explanation.
- Translating into the attributive clause led by ^wlto/whoever9.For example:
(translation: Confiscation of illogical goods incomes shall be imposed on those who do not report the case they know and provide facilities to the smuggler, and a fine below twice the illegal incomes may be imposed at the same time. In case there is no illegal income, a fine below 5000 yuan in RMB shall be imposed.)
(translation: Whoever, for the purpose of reaping profits, lures women into prostitution or shelters them in prostitution, is to’be sentenced to not more than five years of fixed-term imprisonment, criminal detention or control; when the circumstances are serious, the sentence is to be not less than five years of fixed-term imprisonment, and the offender may in addition be sentenced to a fine or confiscation of property.)
The above examples list the some effective means to translate the structure of’ 的 yet in reality legal translators may employ various methods flexibly.
CHAPTER FIVE COLLECTIVE GLOSSARY
OF LEGAL TERMS
in this chapter, the author lists some 6inaccurate, translations digested from the current legal dictionaries published in China, most of which are quite influential and considered as authority.
What should be mentioned is that some of these translations are not wrong absolutely, yet in terms of legal translation they are not the best or not most appropriate and professional, and that the purpose of this chapter is not to criticize or comment on these dictionaries, but to elaborate the author’s opinions on the translation of these legal terms and furthermore to attract the attention of more legal translators on the accuracy of legal translation.
- E-C Corrective Glossary
- .Abjudicate is synonymous with abjudge
- .abjure; adjudge. These words are antithetical in one sense. Abjudge is a rare term（not in most abridged dictionaries） meaning to ‘take away by judicial decision （Dictionary of Modem Legal Usage）.
Therefore, abjudicate equals abjudge^ whose legal meaning in Chinese is ’以判决 剥夺‘instead of’判为不法
- According to the unicity of meaning and accuracy, the most striking linguistic characteristics of legal words and legal language(see 2.1.2 and 2.2.2)Ave should give ‘abode’the accurate meaning in Chinese, otherwise we cannot tell the differences among these several important legal terms, to wit, ‘domicile(住所),residence(居所)‘ and “abode:
- In terms of the legal meaning of abode \neither，住所‘nox ‘居所、s the right translation. The followings are the definitions of “abode’ given by several authoritative dictionaries:
- A person’s normal place of dwelling where he/she lives and sleeps. (Legal Studies Dictionary)
- A person’s dwelling-place; where he or she ordinarily lives and sleeps. It may also include a person’s normal place of business such as a solicitor’s office, however, it is not the same as a person’s domicile. (The Australian Legal Dictionary).
- The place where a person, fbr the time being, sleeps and eats(apart from very brief stays), which in general he or she uses as a base fbr daily activities. The test is whether the person’s inhabitancy has been sufficient to constitute residence in the ordinary sense. (Concise Australian Legal Dictionary)
Hence it is safe to say that the correct translation of abode is ‘住处 or，寓所
- adjective law
Adjective law : That body of the law which provides procedures and methods for enforcing legal rights. It is that part of the law concerned with methods for enforcing or maintaining rights (The Dictionary of Practical Law)
So it is clear that ‘adjective /ow ‘is synonymous with procedural law'(程序 法),distinguished from ‘substantive (实体法)—that body of law which the courts are established to administer.
- blue law(s)
Correct translation:限制或禁止礼拜天从事某些活动的立法 Demonstration:
Let’s study the legal meanings of ‘blue law(s)> defined by several authoritative dictionaries published in Britain and America, for it was in these two counties that blue laws were established.
- Sunday law or blue law, a legislative act requiring the cessation from labor and business on the Sabbath day. (Cochran’s Law Lexicon)
- Blue laws: Any set of rigid laws that regulates conduct on Sunday. Historically, the meaning comes from the so-called “Sun laws’ or “Blue laws’ by authorities who settled the Connecticut colony in colonial America, with strict application of Mosaic principles. For example, a prohibition against a professional baseball, game on Sunday is referred to as a “blue law/ (The Dictionary of Practical Law)
- The term of uncertain origin given in the U.S. to laws, intended to enforce moral standards. The name may have been derived from an account purporting to list the Sabbath regulations of New Haven, Conn., printed on blue paper and published in 1781.Sunday observance acts and sumptuary regulations were transplanted from or modeled on English legislation in the seventeenth century and some survived into the eighteenth century. They were most common and most strict in Puritan, Bible-oriented communities, and usually forbade work or sport on Sundays. In most states there are some survivals restricting particular activities on Sundays. (The Oxford Companion to Law)
From the above definitions, we can draw that blue and Sunday law are the same thing. Although ‘blue law (or Sunday law) 1 is religion-oriented, ‘blue law’ doesn’t equal “religion-oriented law； for the latter covers a much wider variety of laws. Additionally, the communities that regulated by blue laws are not only Puritans, therefore, the Chinese translation ‘清教徒法规，\s not accurate either.
The following is the definition of cassation
(Cassation1 is a decision emanating from the sovereign authority, by which a decree of judgment in the court of last resort is broken or annulled (Black’s Law Dictionary).
In this light, although the meaning of，翻案‘ in Chinese is similar to that of cassation ‘in English, however, it is not a legal term, whereas ‘撤消原判‘is.
Hence,’撤消原判，is the equivalent translation to ‘cassation \
- community property
Obviously, the difference between these two translations is whether community property is shared but by a husband and wife or not. According to the following dictionaries, it is convincing to say that it is a kind of property between a couple.
- Community property, property acquired by a husband and wife, or either of them, during coverture. This concept was unknown to English common law. It was introduced in the United States viz the French and Spanish colonies and is in effect only a minority of the states, i.e., Arizona, California, Idaho, Louisiana, New Mexico, Nevada, Texas, Washington and to a limited extent, Oklahoma. (Cochran’s Law Dictionary)
- Community property: Property acquired by husband and wife, or either, during marriage, when not acquired as the separate property of either. It is a kind of marital partnership, in which both own anything that is acquired through the work, business trades, or acumen of either spouse, or the savings that are accumulated during the marriage. Tb be claimed as separate property of one spouse, the courts generally put the burden on the spouse so claiming. Generally, money or property used by both is assumed by the court to be community property, unless individual animals clearly marked as separate property of one spouse or the other. Most western states in the U.S. follow community property law doctrines, and there seems to be tendency for other states to adopt the ideas. (The Dictionary of Practical Law)
Hence, ‘夫妻共有财产‘\s the correct translation of community property
- .confession of defence
Correct translation:原告承认被告的抗辩 Demonstration:
The misunderstanding of the source term leads to the current translations above. Actually, Cdefence, is not the subject, neither is ‘confession’ the object. The right comprehension of this term may be referred to as follows:
- Confession of Defence. When the defendant alleges any ground of defence which has arisen after commencement of the action, the plaintiff may deliver a confession of such defence and sign judgment fbr his costs up to that time. (A Concise Law Dictionary for Students and Practioners )
- Confession of Defence. Where the defendant alleges a ground of defence which has arisen after the commencement of the action and the plaintiff delivers confession of that defence. (A Dictionary of Law)
Current translations: ( 1)对价
The translation of this legal term concerns the basic theory of law, in terms of which, ‘consideration’ usually has no money value whereas valuable consideration’ has.(Cochran’s Law Lexicon).
In this light, the conesponding tenn in Chinese to consideration1 is，约因\ while the one to ‘valuable consideration 飞’对价 or，报酬:
- A contingent fee is a charge made by an attorney dependent upon a successful outcome in the case and is often agreed to be a percentage of the party’s recovery. Such fee arrangements are often used in negligence cases and other civil actions but it is unethical for an attorney to charge a criminal defendant a fee substantially contingent upon the result.(Steven H. Gifis, Law Dictionary)
- Contingent fee, a frequent form of employment by which an attorney is engaged to represent a plaintiff in an adversary proceeding for compensation in an amount equal to a specified percentage of the amount recovered by the attorney for his client, e.g., 25% or 33%. (Cochran’s Law Lexicon)
Hence, the current translation is not accurate enough.
- crown court(s)
Taking words too literally is one of the major reasons arising mistranslations, just like the current translation of ‘crown courtActually, ‘crown court’ is a unique kind of court in U.K., but not the imperial court, whose meaning may be referred to as follows:
(l)In English law. The court in which the crown cases, or criminal business, of the assizes is the transacted.(Black’s Law Dictionary)
(2)Crown Court. The superior English criminal court, created in 1971 and replacing assizes and quarter sessions. It is a part of the Supreme Court of Judicature and may sit at any place in England and Wales.
Therefore, *crown courtf should not be translated literally into ‘皇家法院(英)， Similarly, ‘crown law f should not be translated into ‘王法‘o’，王律\ far’刑法(英)’ is the right translation.
Conciseness is a linguistic feature of legal English and also a tendency of the development of language. And ‘direct’ in legal text is the abbreviation of ‘direct examination \ which can be proven by the following sentence quoted from American Bar Association Journal （June 1997, P.80）.4On direct, the other side forget to cover a key topic/
Correct translation:（审理前各方向对方）提供对方辩论所需的案情或文据等（的 诉讼行为）；
Discovery ‘is a basic word yet boasting legal meaning （see 2.1.1）, therefore, we should choose the legal term in Chinese to translate it. Apparently,‘发现‘or,发觉， is not professional word, and cannot define the exact meaning of ‘discovery ‘in legal text. The following is the legal definition of ‘discovery
Modem pre-trial procedure by which one party gains vital information concerning the case held by adverse party of facts, deeds, documents and other such things which are within his possession or knowledge exclusively, and which are necessary to the other party5s defense.（ Steven H Gifis, Law Dictionary）
- the accurate translation of discoveryfin legal text is ‘（审理前各方向对方） 提供对方辩论所需的案情或文据等（的诉讼行为）「
Correct translation:合伙人全体；合伙商号 Demonstration:
Now that ‘firm ‘in legal text is a noun, how can it be possible that it means,坚 挺’? Apparently, this translation is groundless undoubtedly.
Additionally,‘公司‘is not the accurate translation either, for in legal text ‘firm ‘is different from ‘corporation’（’公司）According to Cochran’s Law dictionary, the legal definition of ‘firm’ is: （1） the persons composing a partnership, taken collectively. （2） the name or title under which a partnership transacts business. Whereas the definition of ‘corporation’ is: a legally recognized entity formed by legislative act, or by individuals pursuant to general legislative authorization, with ownership ordinarily represented by shares of stockowner in varying quantities by anywhere from one to millions of stockholders, typically characterized by limited liability.
So the right translation of ‘firm‘ is，合伙人 全体;合伙商号“instead of，公司， or ‘商号
- foreign security
The error of the cunent translation is only too simple, for it is the word ‘securities9 , not ‘security’ that means ‘证券’in Chinese!
- golden rule
Frankly speaking, the accurate translation of ‘golden rule ‘is far from a simple job, for it touches the deeper aspect of translation, i.e., cultural differences. In order to get a comprehensive understanding of ‘golden rule \ I take pains to find several English dictionaries concerning legal culture, the followings are the explanations digested from them.
- golden rule n. The biblical teaching that one should behave toward others as one would have others behave toward oneself (American Heritage)
- golden rule: I. A guiding principle II. Cap G&R: a rule of ethical conduct… stating that one should do to others as he would others do to him^Webster^ New World Dictionary)
- the golden rule. This rule is to some extent an exception to the literal rule and under it the words of a statue will as far as possible be construed according to their ordinary plain and natural meaning, unless this leads to an absurd result. It is used by the courts where a statutory provision is capable of more than one literal rule is contrary to the intentions of Parliament.(A Selection from Legal Literature In English, Shanghai 1987, p.66)
Then is the Chinese expression，金科玉律‘equivalent to ‘golden rules? Dictionary of Chinese Idioms(汉语成语词 典)，gives the following explanation:
In this light,‘金科玉律，doesn’t equal ‘golden rule \ and on second thought, I translate it into ‘稳妥题软 tentatively.
- joint liability
‘连带责任“ and，共同责任，M legal text have the different responsibilities according to the basic legal theory, therefore their corresponding legal terms in English are different too, to wit, 6joint and several liability \ and ‘joint liability’ respectively. The supporting evidence may be seen as follows:
‘Joint liability”, an obligation for which two or more persons are liable, who must be united in any action brought on account of that liability, as opposed to a “joint and several liabilitySteven H Gifts, Law Dictionary)
Ring(-)Ieader is a derogatory term referring to the one who leads others, esp. in unlawful or rebellious activities, while，首脑‘is not, so it is obvious that the current translation is not accurate.
- senior procurator
Senior’ usually means more advanced in age or experience, and there could be more than one senior procurator in a procuratorate, yet averagely there could be but one “chief procurator “(首席检察官)in each procuratorate.
- tarifl^free zone
Taking words too literally is the reason causing this translation erro匚
- things possessed
In legal text,历有‘and ‘占有’are not the same thing, yet in legal English, ‘possess* can mean either of them. The method to distinguish them is to place “possess * in different position, i.e., ‘things possessed’ means，占 有物，while possessed thingsf means，所有物，
5.2 C-E Corrective Glossary
Current translation: labor reform
Correct translation: reform through labor Demonstration,.
‘劳动改造，is a unique Chinese legal term, therefore it is almost impossible to find the equivalent term in English. Literally, Labor reform‘ seems equal to ‘劳动 改造： yet actually it does not. For it is a Chinese-English expression, liable to arise misunderstanding.
In order to hunt for a native expression to translate this Chinese legal term, I manage to find a foreign magazine mentioning ‘劳动改造
The main and preferred detcn^M-laodong gaizao(reform through labor)-is giving way to pressure from various quarters for maximum penalties of life sentences and executions.(Far Eastern Economic Review, 20 February 1986, p.47)
Although the content of the above sentence twists the fact, yet in term of translation only, we cannot shrink from the assertion that ‘reform through labor‘ is a successful translation.
Current translation: case, confession
Correct translation: testimony Demonstration:
Casef refers to all proceedings with respect to a charge, claim, or dispute filed with a court (Webster’s Dictionary of The Law), which seemly has little to do with ，供词: ‘Confession’ means a statement admitting that one had committed a crime, and ‘testimony’ means statements made under oath or affirmation by a witness at a trial, hearing, or deposition. By comparison, the last word, to wit, ‘testimony’ is the right word to translate，供词，.
Current translations: (1) law of the place where a marriage is registered
- law of place where the marriage is entered into
- law of the place where they get married
一The Law of the People’s Republic of China(1983-1986)(外 文出版社1987年版)
Correct translation: lex loci celebrationis Demonstration’.
Actually the current translations are not incorrect, yet considering the criteria of legal translation (see 2.2.land 4.2.1), they are not best, failing to meet the requirements of conciseness and preciseness. However, the Latin phrase, ‘lex loci celebrationis ‘is concise, professional and accurate.
Current translations: (1) discretion of punishment, measure punishment
(2) measurement of penalty, weighing of the penalty
Correct translation: sentencing Demonstration’.
Sentencingy is the best English word to express the meaning of，量刑; concise, precise and professional, whose legal definition is ‘the technique of determining in a criminal court what sentence is appropriate for th。person convicted, having regard to the crime of which he has been convicted’.(The Oxford Companion of Law)
Current translations: acting agent
Correct translation: agent ad interium
Actingf is the English word equivalent to，代理‘in Chinese, whereas the Latin phase ‘ad interium’ is to “临时‘ ,therefore the accurate translation is ‘agent ad interium
Current translations: exemption from customs duty
Correct translation: duty free Demonstration,.
The current translation is a so-called Chin-English’ expression typically, and ‘duty free’ is the native English one.
Current translations: (l)assault with intent to commit rape
Correct translation: attempted rape
Firstly, Assault is frequently used as a general term for violence to a person, therefore, Assault with intent to commit rape‘ means succeeding in committing rape.
Secondly, ‘carnal abuse‘ means ‘ the infliction of sexual contact upon a person by forcible compulsion.9(Merriam Webster’s Dictionary of Law)
Hence, neither current translation 1 nor 2 has succeeded in translating the complete meaning of the source term, or to be more specifically, the meaning of，未 迷Comparatively, Attempted rape” is much more accurate.
Current translations: to buy or sell under coercion
Correct translation: to buy or sell by coercion Demonstration:
Although the difference between the two translations is but a preposition, their meanings, however, are quite opposite, i.e., the first one means being obliged to buy or sell under the compulsion of someone else, whereas the second one refers to forcing others to buy or sell. Obviously, the right translation is definitely the second one.
Current translations: homicide squad
Correct translation: murder syndicate Demonstration’.
The legal meaning of homicide squad9 may be refened to as follows:
- In less than 15 minutes Detective Sergeant John Goltz, in charge of the night homicide squad, and his four aids were at the scene. (True Detective, October 1998、 29)
- In the quite, austere confines of the homicide squad5s offices in the Police headquarter…, the details of the plot –were given to the police officers.(Ibid., Oct.1988, p.38)
From the above sentences, we can draw that homicide squad‘ is not the right translation, and ‘murder syndicate ‘is the accurate one.
Current translations: petitioner
Correct translation: appellant
The right understanding of ‘petitioner‘ and ^appellant1 is the key to the correct translation in this case. Their definitions may be seen as follows:
- Appellant, he who initiates an appeal from one court to anther.(Cochran’s Law Lexicon)
- One who presents a cause of action, or legal petition to a court, asking for a legal relief or compensation. The petitioner is therefore, identical to the plaintiff in a lawsuit. The party to the lawsuit against whom the action is filed is called the respondent, or more commonly defendant.(The Dictionary of Practical Law)
Obviously, it is ‘ appellant’ that means，上诉人‘in Chinese instead ^’petitioner”.
In our age of telecommunication and Internet, multilingual communication is an accepted fact of everyday life. Despite extraordinary progress in technology, modem man is still dependent on legal translation. In fact, the international community is more dependent on legal translation than ever before. The globalization of trade, financial markets, and even peacekeeping keeps legal translator in high demand. The greatest volume of translation is done in the UN and EU, the entities currently with the large number of official languages. At the national level, new plurilingual jurisdictions are being bom, among other things, to insure language equality in the administration of justice. Thus it is safe to say that the multilingualism has a bright future in national, supranational, and the international law.
On the other hand, the future of multilingualism in the law depends on the ability of translators to produce reliable texts. In view of the significant and sometimes irreversible effects of legal translation, this is not a matter to be taken lightly. Furthermore, the fact that the parallel texts of legal instruments are usually equally authentic makes it essential for translators to guarantee the reliability of authenticated translations. Since reliability can be ensured only if there is greater professionalism in the field of legal translation, lawyers and linguists have responded by organizing special courses and graduate programs which provide interdisciplinary training in law and translation. Such programs are now available, among other places, in Hong Kong(at the initiative of linguist K.K Sin, terminology oriented courses in legal translation from English into Chinese are now offered at the City University in Hong Kong as part of a new M.A. program in Translation and Interpretation).
The development of society asks for more competent legal translators, to develop translation competence, translators also need instruction in translation theory. In this case, however a special theory of legal translation is needed which take account of legal criteria. As this chapter had attempted to show, a theory of legal translation must be practice oriented in order to be effective. Thus legal translation is regarded as an act of communication in the mechanism of the law.
No longer isolated from the drafting process, the modem legal translator has assumed a dynamic role in the communication process, enabling him/her to interact with other text producers and even receivers who interpret and apply the texts. Despite traditional constraints, legal x translators are now encouraged to achieve linguistic purity, however, not at the expense of substantive equality. To be effective in their new role as text producers, they must know when, where, and how they can be creative and still honor the restrictions of the profession.
Briefly, we legal translators shoulder a greater responsibility and challenge, as the times imposes a higher demand on us; legal translation boasts an optimistic future, as our multilingual world is more and more dependent on this cause.