Vague Language in Legal Contexts and Translation
Much importance has always been attached to translation practice, in which legal translation has stood out in recent years as a prominent domain attracting increasing interest and attention as a result of multiple factors. Firstly, China’s reclaiming sovereignty over Hong Kong ushers in an era when English and Chinese versions of law have, for the first time in Chinese history, begun to assume an equally binding status in a plot of Chinese territory. Secondly, China’s having the term “rule of law” officially written into the PRC Constitution for the first time in 1999 marks a significant watershed in China’s political reform process, paving the way for bringing to an end the already-proved-unproductive practice of “rule of man’： and at least indicating that the law has to some extent become more important in China’s society. Thirdly, China5s entry into the world’s largest non-political organization in 2001——the WTO~means China’s trade with other WTO member countries shall start following certain protocols and WTO rules and being thus admitted onto the world stage has substantially boosted the demand for more properly-trained and qualified bilingual professionals in China’s exchange and communication with the outside world, of whom legal translators will play a most crucial role. All the above points to a robust demand and a pressing need for legal translation academics and practitioners.
And the other key arena delved into herein is vague language-or fuzzy language as is also commonly used-whose study does not see a long history in mainland China as in comparison with other linguistic disciplines, hence serving to intrigue the author in the first place and later giving rise to the idea of combining studies ihto legal translation and vague language in legal contexts. Efforts have been made to study the roles and forms that vague language plays and assumes in legal texts and speeches and an attempt has been made to suggest approaches towards translation involving legal language in this field.
Key words: vague language, fuzzy language, legal translation
长久以来，翻译实践一直为翻译研究界和翻译工作者所重视，理论与实践结 合对于理论研究和实践工作均起到了良好的推动作用，由此出现的是一个双赢的 局面。而作为近年来日益受到关注的翻译领域之一，法律翻译业依托中国日益深 化对外交往、进一步推进政治体制改革和法制建设的有利背景，业已成为技术性 翻译的一个重要分支。对其进行适当的理论研究和探索将是十分有益和必要的。
另一方面，对于模糊语言的研究在定二十年来在中国进入了 一个兴盛阶段o 关于模糊语言，人们从语用功能、解构主义等角度对此进行了广泛的研究，前人 的成果也为本文的撰写提供了充实的理论基础。结合以上两个领域，本文尝试探 讨了模糊语言在法律文本和话语背景中的作用，分析了其各种表现形式，并在此 基础上提出模糊语言的翻译策略。
Table of contents
- Introduction 9
- Literature review 13
- Definitions of key concepts 18
- Functions of vague language 30
- Forms of vagueness in legal contexts 36
- Suggested approaches to translation involving vagueness in legal contexts 47
- Conclusion 60
- Bibliography .・・・・* 63
It is generally and extensively presumed that legal language calls for clarity and precision as its inherent characteristics and that any phrasing or wording in legal writing that might lead to vagueness in communication is to be avoided in an effort to forestall any potential ambiguity and subsequent legal dispute. William O. Douglaas, Justice with the Supreme Court of the U.S, told us. “In the English, each word may have several meanings. Often, it is the use of a specific word or term upon which a case or controversy hinge. Only by using precise language can the waters remain clean and unmuddied allowing justice to take its course unfettered by those who would mislead or misrepresent.” (Preston. M. Torbert, 2004: 1) However, a large number of situations have manifested themselves where vague language serves to achieve validity and effectiveness.
One famous case where vague expression is employed is the Sherman Antitrust Law passed by the Legislation of the U.S. in 1890. It bans ”unreasonable restraints of trade“ without defining or specifying “unreasonable” (nor is it possible to) as a result of the Legislation being reluctant to be the first to give and exhaust examples of what “unreasonable” restraints are to be banned. (Preston M. Torbert, 2004:58) Obviously those legislators preferred to leave the task to the court for its independent jurisdiction.
Another expression that sparks heated debates and discussion both among legal professionals and on the Internet is the new judicial interpretation regarding punishment bf rapes given by the Supreme Court of the People’s Republic of China on January 11th 2006. Article six therein decreed that those above the age of fourteen but under the age of sixteen who have sexual intercourse with a girl under the age of 14 only “occasionally” (Interpretation on some problems involved in specific legal application in hearing criminal cases concerning minors by the Supreme Court of the PRC, 2006: 2) shall not be deemed to have comxtiitted rape, while the original text in the Criminal Law goes as follows:
“Whoever has committed intercourse with a girl under the age of 14 shall be deemed to have committed rape and shall be given a heavier punishment.^^ (Paragraph two, Article 236, Criminal Law of the People’s Republic of China, 2004: 101) One of the reasons for this judicial interpretation being made is that, the way the author views it, in some cases the indicted turns out to be in a loving relationship with the so-called victim or a victim might look too mature to be 14 or younger and the offender had no way of finding out. One case in point is that several men accused of having sex with a girl aged 13 all claimed that the victim looked much too mature for her age. The case attracted extensive news coverage and set off intense debates among legal scholars. In this case, the vague word “occasionally“ is used to protect the interest of the obviously innocent or unintentional offenders, as precise expressions like “twice” or “three times” may only make law enforcement harder, although how to define “occasionally“ can be a delicate task, of course.
Still another China-related case in which vague language is resorted to in legal defining involves the government issuing an edict that any Chinese media should seek government authorization before proceeding to report on any “sudden events”. An article dated June 27th, 2006 on New York Times commented on the edict saying that “while the state news media did not offer a definition of ‘sudden events’, in the past the term has included natural disasters, major accidents and events relating to public health and social safety”. By putting a label of “sudden evenis” on all these possible events, the government has managed to create a powerful tool by which to better exercise control of news coverage, and saved the trouble of having to prepare a list of countless situations of “sudden events” only to be, surely, disappointed and incompetent in the case of still mote unmentioned exanlples of Such “sudden events55 turning up.
It is intended hereunder to address some basic points relevant that are to be delved into and elaborated upon in this very thesis. Firstly, the vague nature of languages. In the preface to Linguistic Vagueness by Wu Tieping, it is pointed out
that the vagueness of languages is an indicator of or “reflects”（伍铁平，1999:ix） the vague nature of thinking, which holds true for both Chinese and people speaking other languages. Communication between people speaking different languages with the help of translation is possible only because thinking is a common and intrinsic characteristic of all the human beings while what can be race-specific is only the language. Secondly, the vagueness of legal language. As described previously, legal language calls for high precision and strictness while at the same time accommodating to a point vagueness to serve the purposes of rendering legal language “more objective, more precise and upholding the justice of law…and softening the sharpness and bluntness of legal language.n （史煜, 武 轶尘，2005: 2） Cases abound in legal language where vagueness assumes a prominent position to serve the above purposes. Thirdly, some words about the relationship between vagueness and translation, which has up to now drawn comparatively little attention academically. This is perhaps because the criterion of “faithfulness“ has always assumed an irreplaceable and unshakable position in evaluating translation quality, to the extent that scholars might prefer to save the trouble of being suspected of “being unfaithfulness“ translating precise language intb vague language or vice versa. That is fair enough, but in view of translation practice, it is not uncommon to observe widespread cases in which vague laiiguage and precise language are interchangeable both ways between the TL and the SL in the process of translation. And last but not least, vagueness and translation iri legal language. With China embarking on a phased political. reform and embracing gradually the rule of law, legal translation has become a field attracting increasingly intense attention from scholars and practitioners, notably scholars in Hong Kong, where studies and practice of legal language translation play h pioneering role in this very field, thanks to the unique political environment
and geographical position Hong Kong enjoys. And translation of vague language, which is herein and hereunder proved to be an indispensable feature of legal language, will naturally be bestowed its due attention.
Based on the foregoing discussions, the notion is put forward herein that it is
the application of vague language that serves to render legal language more flexible, more efficient, more accurate and more valid. However, that does not mean vague language goes without any negative consequences, as manifested in the heated debate between the Chinese and U.S. governments over the controversial issue of human rights.
The rights described in the 30 articles of the Universal Declaration of Human Rights adopted by the U.N. in 1948 include “the right to life, liberty, and security of person; to freedom of conscience, religion, opinion, expression, association, and assembly; to freedom from arbitrary arrest; to a fair and impartial trial; to freedom from interference in privacy, home, or correspondence; to a nationality; to a secure society and an adequate standard of living; to education; and to rest and leisure” (Encarta Encyclopedia, 2003), to name only a few. The human rights records published by the U.S. government over the years have made good examples of their emphasis in such aspects as political rights, prioritizing freedom, while the U.S. human rights report published by the Chinese government in retaliation focuses more on criticizing criminal offenses in American society, giving priority to what is propagated as societal harmony.
The controversy finds one of its roots in the term “human rights” being a vague one subject to varying interpretations, which proves to some extent that vagueness and precision are both relative concepts.
- Literature review
Over the past decades, extensive efforts have already been made in studies of vague language, translation of legal texts, and translation of vague language. Following are some books and papers dedicated to studies in the above-mentioned fields:
- Drafting & Preparing Legal Papers in Both English & Chinese（法律英 语・中英双语法律文书制作），published by Fudan University Press. This book is written in Chinese by Preston M. Torbert, a practicing lawyer and native English-speaker, who, against a background of years5 experience and proved track record in practicing law and on his excellent command of both Chinese and English, generalizes the characteristics of legal English and styles in drafting laws in English, and goes into detail analyzing specific linguistic aspects. An abundance of good examples has been provided in this book.
- Legal English Through Practice（法律翻译.从实践出发），published by Legal Press. Compiled by Lu Wenhui, a practicing legal translator/interpreter based in Hong Kong, this book is a collection of essays written by some of the most successful judges, lawyers, professional translators/interpreters, and one senior officer with the Ministry of Commerce of China who was in charge of translation of WTO-related documents on China5s application to join the WTO. With their extensive hands-on experience, these writers have brought out the best in legal writing/translation through these essays. Something else very useful about this book is the plenty of reference soilrces offered.
- Language & The Law: Linguistic Research In The Leal Field（语言与 法律-司法领域的语言学研究），published by Shanghai Foreign Ldfiguage Educational Press. The author, D匚 Wu Weiping, a linguist based in Hong Kong, makes great efforts to be exhaustive in this book, addressing legal phonology and phonetics, judicial language, recorded conversation analysis, legislative language, partially-legal language, graphology, bilingual study, court translation, linguistic evidence, to name only a few. What is especially noteworthy about this book is the author manages to combine theories with a number of interesting cases.
- Vague Language9by Joanna Channell. In this study, the author shows how English provides its speakers with a great variety of ways of being vague. She applies principles of pragmatics to the analysis of vague expressions, describing both the linguistic forms and the pragmatic consequences of their use. The analysis is based on copious authentic examples taken from conversations and written texts, both from the author5s collections and from large computer-held corpora.
- Vague Language Studies(模糊语言学)，published by Shanghai Foreign Language Educational Press. The author, Wu Tieping, is praised by Wang Zongyan as the first scholar to do vague language studies in China. The book is divided into three sections, namely, general theories about vague language, vague language vs. terminology, lexicology and etymology, and vague language vs. rhetoric and pragmatics.
- Forensic Linguistics(法律语言学).Published by Shanghai Foreign Language Educational Press, this book is authored by Du Jinbang, who is in charge of one of the few forensic language studies programs in process in the world, and is an attempt at forensic language studies against the framework of linguistics theories. As Dr. Du Jinbang says in the preface (2004: 1), /”studies of forensic language are at the same time highly academic and practical, both independent and covering multiple disciplines.35 In this book, a whole section is devoted to forensic translation, ranging from principles in forensic translation, interpretation, and translation, among others. What is worth pointing out is that the term “forensic“ is used in this book instead of “legal” as in this very thesis, the reason for the choice of different terms to be explained hereunder.
- Legal Translation—A New Approach（新编英汉法律翻译教程）, published by Zhejiang University Press. Wang Daoyu, the author, had served as a legal translator with an international law firm for years before studying in a master ?s program for linguistics and legal literature in City University of Hong Kong. The book is divided into two parts, namely, theory and practice. The first part covers an overview of legal translation, semantic features of legal texts, syntactic features of legal texts, and criteria for judging a legal translation, while the second part mainly deals with approaches to legal translation, including some skills about how to handle special terms in legal contexts,
- A Preliminary Study into Fuzziness in Legal Language（浅析法律语言 的模糊性）.Published in Guangxi Social Sciences in July 2004 by Jiang Zhenchun, the article holds that the legal language abounds with fuzziness and divides fuzziness in this context into active and passive fuzziness in terms of their respective reasons of existence. Also delved into are reasons for fuzziness to appear and ways to overcome negative fuzziness. The last part of this article is dedicated to analyzing the functions of active vagueness.
- Vagueness Theories and Translation（模糊与翻译）.Published in Journal of Wenzhou University in Aug. 2004 by Liu Zhengbing, the article points out that fuzziness finds its manifestation in four aspects: phonetically and in intonation, semantically, in grammar, and what arises from cross-cultural communication. And it is especially pointed out that vagueness in translation criteria also results in vagueness in translation activities.
- Vague Language and Translation（模糊性语言与翻译）.The article is written by Liao Cheneng and published in Journal of Guangxi TV & Radio University in March 2003. In addition to a preliminary analysis of vagueness manifestations, the article also makes efforts to discuss some approaches to translating legal language, which is of referential value to a point herein.
- Analysis of Pragmatic Functions of Vagueness in Legal Language（法 律语言中模糊语言的语用功能分析）.Also authored by Jiang Zhenchun and published in Journal of Nanjing Audit University in August 2004, the article suggests that vagueness does go with some shortcomings pragmatically speaking in addition discussions of some positive functions of vagueness.
- About Some Issues in Vague LanguageStudies （也谈模糊语言学的几 个问题）.Published in volume 5 of Foreign Languages and Their Teaching in 2001 by Wu Guohua and Peng Wenzhao, the article is a comment on Vague Language Studies mentioned previously and it is suggested that studies of vague language should be more precisely defined, in other words, objects for study should be more clearly defined.
- Vague Language and Translation（模糊语言与翻译）.Authored by Yii Fubin, the article is published in Foreign Languages and Their Teaching in 2000, and deals with the relationship between the vagueness of language and translation. The article adso proposes some approaches like virtuality vs. reality, and virtuality vs. Virtuality^ where virtuality is taken therein as refening to vagueness in both the SL and the TL, in an attempt to discuss the possibility of facilitating research into theories of literal translation and free translation through this discussion.
- A Preliminary Study into Vague Legislative Language（立法模糊语言 初探）.Published in volume twenty-one of Journal of Zhaozhuang Teachers} College by Zhang Wangfa, as well as describing the functions of vague language in legal contexts, the article proposes two principles to follow in legislation drafting: to avoid misinterpretation and to maintain vagueness while removing ambiguity.
- Vague Features of Legal English（法律英语的模糊性特征）.Published in Journal of Ningbo University in 2004 by Wang Qingmei, the article discusses some vague features of legal English from the perspectives of objective and subjective foundations on which vague language exists in legal contexts.
- On Translatability of Legal Texts（法律文本的可译性）.The article is published in Journal of Guangdong University of Foreign Studies in February 2005 by Hai Yiin, in which the author points out that comparatively less attention has been paid to translatability of legal texts as compared with that paid of literary texts. Analysis is conducted of the semiotic system of legal texts through examples, with further discussions of translatability and limitations in handling legal texts.
- On Incomplete Equivalence in and Translation of Legal Terms Between English and Chinese（试论英汉法律术语的不完全对等现象 与翻译）.The article is published in Shandong Foreign Language Teaching Journal by Chen Wenling in 2004, discussing some points where full equivalence fails to exist between legal .terms between Ehglish and Chinese and puts forward some approaches in handling translation of these terms, including the use of neutral terms and paraphrasing.
- 7\vo Dimensions in Vague Language（模糊语言的两个维度）. Published in Journal of Nanjing University of Science and Technology in August 1999 by Liu Jing, the article discusses and ahalyzes the two dimensions of vague language, which helps readers to further comprehend linguistic vagueness and gives them a more clear-cut idea of objects for study in vague language.
- Definitions of key concepts
- Legal language
According to the Oxford Dictionary of Current English, “legal” means ‘(connected with, in accordance with, authorized or required by the laws.” Legal Language, sometimes also called forensic language, will be used in this thesis as referring extensively to all the language used in connection with and on the occasions where linguistics and legal study overlap, ranging from both oral and written language a witness uses before a jury, articles laid down in a sales contract, all the way to a joint declaration made between two governments. The author does not opt for the comparatively popular term “Forensic Language” and instead chooses the more inclusive <cLegal Language“ in an attempt to avoid misinterpreting forensic language herein as referring only to the FORENSIC language “of or used in courts of law”, as the word “Forensic” is defined in the Oxford Dictionary of Current English.
Compared with language in other contexts, legal language displays some distinct characteristics that make its translation to a certain extent different from translation of other texts. Firstly, in legal contexts, a common word is often used with an uncommon meaning. For example, the word “minor” means “a person who has not； reached full legal age” in law. Secondly, there is the frequent use of outdated wotds or phrases, like the substitute of “aforementioned” for “mentioned above”. Thirdly, Latin words and phrases are often used, like the replacement of “for this purpose” with “ad hoc”. Fourthly, use of special terms restricted to the law discipline, like “covenant” and “tort”. Fifthly, officialese or cliches that is routine and necessary exists in abundance in legal language, e.g., c<in testimony of which I have signed and sealed the day and year last above written”. Sixthly, intentional use of words and phrases of meanings that can be construed differently, or as heretofore analyzed, vague language. For example, in “serious misconducf5, the extent of “serious“ is open to different interpretations. Seventhly, striving for accurate expression. Legal language calls for accuracy in order to forestall to the utmost extent ambiguity or misconception, which is determined by the purpose legal language serves. Last but not least, legal language is both lengthy and conservative. It is so characterized in that it resorts to a large number of tautologies, like doublets, couplets, or triplets. For example, 4<to impose, levy and collect”.
Some of the aforementioned features apply to both English and Chinese, with the exception of the second and third, apparently. This is perhaps a result of legal language in Chinese being heavily influenced by translations from English.
- %gue language
A look in the Oxford Dictionary of Current English returns a definition of “vague” as “not clear or distinct”. Vagueness is sometimes also called fuzziness, but the author intends to use, in this thesis, “vagueness” and “vague“ in places where “fuzziness” and “fuzzy“ may also work except for quotations from other academic writings. It has been observed to occur extensively in language use and is held to be an intrinsic characteristic of human languages. Like the italicized parts in the following invented examples:
- A crime of exceptionally seriousnature
- Unless the account is paid before Oct. 10？h, we will take further measures.
- . ；.to be sentenced to any term not exceeding two years,and to pay such fine as the court shall award.
Wittgenstein (Joanna Channell, 2000: 6) once made a metaphor about the vague nature of language by suggesting that “words are like blurred photographs” and asked “Is it even always an advantage to replace an indistinct picture by a sharp one? Isn’t the indistinct one often exactly what we need?” Peirce (1902: 748), who is often considered the originator of the notion of vagueness in language, tried to formulate the notion in a rigorous way: “A proposition is vague where there are possible states of things concerning which it is intrinsically uncertain whether, had they been contemplated by the speaker, he would have regarded them as excluded or allowed by the proposition. By intrinsically uncertain we mean not uncertain in consequence of any ignorance of the interpreter, but because the speaker’s habits of language were indeterminate; so that one day he would regard the proposition as excluding, another as admitting, those states of things. Yet this must be understood to have reference to what might be deduced from a perfect knowledge of his state of mind; for it is precisely because these questions never did, or did not frequently, present themselves that his habit remained indeterminate.”
Joanna Channell (2000:20) gives three defining characteristics of vagueness in language. She identifies an expression or word as vague if:
- It can be contrasted with another word or expression which appears to render the same proposition;
- It is “purposely and unabashedly vague”；
- Its meaning arises from the ”intrinsic uncertainty“ referred to by Peirce.
It is worth mentioning that Du Jinbang (杜金榜，2004: 82), while addressing the characteristics of legal terminology in his Forensic Linguistics^ proposes the concepts of uncertainty, generalization, and ambiguity, among others. In this thesis, the author will use vagueness as covering the first two characteristics while differentiating it from ambiguity, which will be dealt with below.
As an incredibly broad notion which can be understood in many different ways, translation does come with many definitions. As defined by Peter Newmark (2001, 5), translation is a process of ”rendering the meaning of a text into another language in the way that the author intended the text.55 J. C. Catford defines translation as “the replacement of textual material in one language (SL) by equivalent material in another language (TL),J (1965:20), and the definition of Eugene Nida and Charles R. Taber reflects an approach based on the importance of preserving the effect of the original: ^translating consists in reproducing in the receptor language the closest natural equivalent of the source-language message, first in terms of meaning and secondly in terms of style” (1982:12). Still two other not-so-normative definitions given by Gideon Tbury (1985:20) and Hans J. Vermeer (1982:97) take translation as making “any target-language utterance which is presented or regarded as such within the target culture, on whatever grounds“ and providing ^information about a source text in another language”. In this thesis, it is the author’s intention to use translation in the sense of translation and interpretation alike while covering both E-C and C-E translation.
Classified in terms of different types of texts, translation can be divided into literary translation and technical translation. And legal translation, in the author 5s opinion, teeters to some extent between these two major categories in that: firstly, it is not uncommon to encounter literarily-colored words and phrases in legal language as broadly defined in 3. 1 above; and secondly, the world of law teems with discipline-specific terms that are different from what are ommonly used in people’s daily life, i.e,, an bundance of special (technical) terms.
Legal translation, in the words of Sarcevic S., is an “act of communication in the mechanism of law” (1997: 3-4). In contrast with the translation in other fields, legal translation goes with some principles or requirements that also make it different from other types of translation. Firstly, it calls for accuracy and faithfulness but, unlike literary translation where faithfulness can sometimes be sacrified to a certain point in order to accommodate, e.g., a rhetoric effect, it allows no tampering with meanings. Secondly, consistency is highly respected and honored, as in the words of Henry Weihofen, u…exactness often demands repeating the same term to express the same idea. Where that is true, never be afraid of using the same word over and over again. Many more sentences are spoiled by trying to avoid repetition than by repetition.”(陈忠诚，1998: 51) In contrast, choosing different translations for the same word often serves to lend more color to and make more vivid literary translation. Thirdly, clarity and conciseness. This is determined by the purpose of legal writing-communication, because “people have the right to be informed in language which they understand, of benefits to which they are entitled, and obligations which are imposed on the. This is only fair, it is part of the rule of law.” (Fung S. and Watson-Brown, 1994: 13). Fourthly, professionalism. For example,“不可抗力”should be translated as “force majeure,5 instead of “irresistible force” and “婚姻自由”means “freedom of marriage“ instead of “free choice of partnersAnd last but not least, using standardized language. Technically speaking, this rule applies only to legal language in the narrow sense, i.e., legal language in writing as the most foimal form of language in every country.
- Ambiguity as in contrast with vagueness
Ambiguity, as defined by Encarta Dictionary, is “a situation in which something can be understood in more than one way and it is not clear which meaning is intended” or “an expression or statement which has more than one meaning”. However, to differentiate it from vagueness, the author proposes attention being called to the general approach to distinguishing vagueness from ambiguity as summarized by Joanna Channell (2000: 35): uAmbiguity has been traditionally identified where a sentence has two or more competing but distinct meanings attached to it, whereas vagueness is seen where distinct meanings cannot be identified?? •
Still anpther seemingly more feasible criterion by which to differentiate the two concepts is suggested by U. Weinreich (1966: 411). He thinks that “if a word can be understood as ambiguous in a neutral context, it has two different dictionary entries; if it cannot be understood as ambiguous in a neutral context, but different meanings seem possible, it is vague?9 For example, the word “eat” is vague between the action required to eat soup and eat bread, while the word “kill” is possibly (although not necessarily) ambiguous in “He killed time” and “He
killed (a boy named) Time”.
One ideal criterion by which to tell apart ambiguity from vagueness is to apply “second conjunct denial“ proposed by Joanna Channell (2000: 37). Specifically speaking, where there is ambiguity, a second conjunct denial, using the other sense, is possible. Thus about a female horse one can make the utterance that <cit is a horse, but it isn’t a horse”. On the contrary, the same will result in nonsense in the case of vague expressions, as in “Tom is about six feet tall and he isn’t about six feet tall.”
As preliminarily analyzed above, vagueness exists in abundance in legal language. As for ambiguity, it is fair to say that the ideal state for legal language, especially legal language in writing, is supposed to be one free of ambiguities. But the case is ambiguity is yet to be eliminated completely in legal language and sometimes impedes the process of justice. For example, there is this famous grey-hounds-vs.-surgeon-general case in the U.S. Some senior citizens above the age of 65 (grey hounds) filed a lawsuit against the then surgeon general. One claim asks to simplify the wording of some medically-related forms, where there 运 this phrase “amount billed”. At first glance, the meaning is clear. But actually it gives rise to trouble in understanding because one form often goes with several amounts, some of which are to be footed by the insurance company while some others of which are to be paid by individuals. Owing to the overwhelmingly large number of bills issued in that medical system, this phrase can be simply ambiguous. Therefore some linguists suggest that it be changed to “amount you will be billed^^.
- Polysemy as in contrast with vagueness
Additional attention is called herein to the difference between “vagueness” and “polysemy”, the latter of which indicates the existence of multiple meanings for a single word or phrase. According to The Cambridge Encyclopedia of Language^ polysemy (2002: 106) refers to cases where a lexeme has more than one meaning.
Take for example the sentence: The drawer is one foot deep. The word “deep” exemplifies polysemy in that the sentence can be construed as meaning either “the drawer is one foot long horizontally” or “the drawer is one foot deep vertically”. And the word “deep” can also be vague in that, for example, there is no way to specify the depth of a brook for it to be qualified as “deep”.
What is worth mentioning is that polysemy can result in ambiguity, but not in vagueness, as in the example in the preceding paragraph. In the world of law, potential risks stemming from polysemy are limited to the utmost extent as legal language, like general language, occurs in context and context serves to help readers or listeners read off the other not*intended-for meaning(s). Thus polysemy is seldom a relevant factor in real communication.
- Vagueness inherent in legal language
Vagueness, as discussed above, is found to exist in abundance in language and viewed as an intrinsic feature of it. And it is fair to claim that legal language, as a variety of language, is also a reservoir of vagueness. Vagueness appears and exists in legal language to meet certain needs or serve certain purposes. Following are the reasons why vagueness exists in legal language:
- Objective reasons
The language system, langue, is a system of signs, and the sign is the basic unit of communication within a community. As Ferdinand de Saussure puts it (2001: 66), “a linguistic sign is not a link between a thing and a name, but between a concept and a sound pattern” and “the linguistic sign is arbitrary” (2001: 67) It is because of this fundamental property of languages that speakers of one language enjoy the freedom to some extent in creating their own unique concept systems.
Judging in terms of linguistic signs, language is in itself generalizing, which determines the vague nature of language. The two sides to the study of meaning ate recognized and labeled by Saussure as “signifier” and “signified” (The Cambridge Encyclopedia of Language, 2002: 411), or “signal” and “Signification” as translated by Roy Harris (Ferdinand de Saussure, 2001: 67). Signs are supposed to correspond with concepts but it is not rare to observe a lack of absolute, correlation between the referent and the signified. In specific pragmatic contexts, if one fails to describe a legal concept, (signified) or phertomenori in a precise, comprehensive and inclusive manner, generalizing language, including language signs (signifier), will be called to service. For exartiple, a distributor of violence-permeated movies might say that viewer disctetion is. advised in that the vague word ^discretion5‘ suffices to cover all the nuariced shades of meaning to different extents that are thus intended. Therefore, it is the limitedness of language signs being generalizing that contributes to and
gives rise to vagueness in legal language.
As there is an infinite collection of legal phenomena or concepts but a finite reservoir of linguistic resources, there is no way to enumerate the inexhaustible pool of legal phenomena. In other words, no language, however precise and powerful, is capable of covering all the concrete legally-related behaviors, actions, motives, and consequences. As a result, vague language has to be employed for limited linguistic signs to communicate, convey, embody, and express inexhaustible legal phenomena and concepts, which are inexhaustible in that the law regulates people’s behavior, which may involve starkly different affairs ranging from life, property, family, all the way to marriage, to name only a few. To define a legal phenomenon or concept specifically may, in some cases, turn out to be a fatal practice that results in thorny law enforcement due to loopholes that leave room for potential offender evading compliance.
Thanks to the enormous multitude of legal phenomena, it is impossible to cover all of them in any specific human language, but legal provisions call for operability of legal language in judicial practice. And before a specific legal phenomenon comes about, it can be impracticable and impossible to expect it to bb reasonably foreseeable in a language, nor is it feasible to assign it a precise definition and concept on which a potential verdict can be based, if necessary. Therefore, before the emergence of some specific legal phenomena, vague language has to be introduced for generalized definition to render the law enforceable. The changeability and unpredictability of the world oontribute to the vagUe nature of legal language. Take the following paragraph excerpted from the British Contract Law for example:
Exceptions: where the parties are not in pari delicto (that is, not equally at fault), for example, where one party is unaware of the illegal nature of the contfact; or has been induced to enter into it by fraudulent misintetpretation; or is the party the law is attempting to protect, for example, a tenant who has paid an illegal premium.(张素华，2003: 214)
In this paragraph, vague words lil^e “illegal” and ^fraudulent55 are used to serve the purpose of being exhaustive to the utmost extent, thereby saving the trouble of having to define acceptable and unacceptable misinterpretation and affording the court of law a leeway in hearing thus-related cases.
Based on the foregoing discussions, it can be inferred that vague language serves to avoid extremity and lend flexibility to legal enforcement and jurisdiction.
- Subjective reasons
Mankind’s limited perception and cognition of the world constitute the subjective basis from which vague language develops and derives.
As a result of restrictions imposed on mankind’s perception and cognition of the objective world by factors like the environment, the very era in which one lives, the specific cognitive power of individuals, to name only a few, it is impossible for men to define or describe all the legal phenomena and legal activities one by one, which gives birth to a marginal gap between mankind’s dognitive power and defined legal phenomena. For legal language to uphold the dignity of the law, forestall and preclude potential loopholes, and maintain the integrity of the law, it is necessary to fulfill the gap by way of covering all the possible legal phenomena in legal provisions, the purpose of which can best and most effectively served only by vague language.
Everything in the world is in a constantly-changing state and mankind’s cognition is also evolving. The fuzzy fringe of some legal phenomena has resulted in vague cognition by people. Take for example the concept of “euthanasia” for which there are at once doctors who are found guilty in court for performing this act to relieve a chronically ill patient of his suffering and others who are pronounced not guilty for practicing the same. According to Oxford Advanced Learners3 Dictionary, “euthanasia” means ”(bringing about of a) mercifully easy and painless death55. The controversy hinges upon how different people perceive the meaning of life and, more importantly, how to determine who carries on the act of “bringing about55. Where acquittal exists, it may be perceived by the court of law that life has a meaning, which ceases to exist when continuing to live only means suffering, and that one should be helped to get free from the suffering if his life is pure suffering. A more conspicuous factor may arise from the consideration that the patient can be deemed as the one ”bringing about5* his own death, the only difference being that he does so with the assistance of another party. In the case where a well-intentioned doctor is convicted, the fundamental theory lies in the belief that life is in itself a meaning and shall be willy-nilly sustained by all means, and nobody is supposed or allowed to deprive a suffering patient of his life even if he is living in agony, where obviously the act of “bringing about a death5* is deemed to be carried out by a person other than the patient. That is why a more precise term ^physician-assisted suicide (PAS)“ is now more commonly used in its stead. But subject to vague interpretations of “murder”，“homicide”，or ”security of a person’s life”)this seemingly precise term still fails to solve the problem as in the following case:
In 2003, the Supreme Court of Canada heard a case brought before it by Sue Rodriguez. Suffering from ALS (motor neuron disease), and expecting her health to continue to degenerate, she filed a lawsuit seeking the legal right to obtain assistance in committing suicide. In May 1993, the Supreme Court of Canada ruled with narrow majority of 5 to 4 that the section of the Canadian Charter of Rights and Freedoms which guarantees the security of the person does not include the right to obtain assisted suicide. According to an’ article in the Canadian Medical Association Journal: “….judges dissented* finding that Rodriguez was discriminated against on grounds of disability, in violation of the charter, because the option of attempting suicide, legally available to anyone, was not available to her because she was physically unable to commit suicide. The majority (of 5 judges) felt that even if she was discriminated against, the disctimination was deemed to be within the reasonable limits that could be imposed in a free and democratic society.0
Still another reason derives from an intention to seem indirect or achieve euphemism. Take for example the following excerpt from The Joint Communique signed between China and the United States on August 17th 1982:
English: …and that it intends gradually to reduce its sales of arms to Taiwan, leading, over a period of time, to a final resolution.
Although a definite deadline is yet to be set for ceasing arms sales to Taiwan, the vague word of “gradually“ serves to fit the atmosphere quite well and sounds more realistic. On the other hand, a definite and precise deadline set in black and white on the Communique would be possible only after deliberate consideration had been given and a firm determination made without any room for second thought, which, apparently, was not the case at the time when the Joint Communique was drawn up.
- Functions of vague language
- Giving the right amount of infbnnation
According to Joanna Channell, one possible functions of vagueness is to “tailor an utterance such that the right amount of information is given” and “tailoring the amount of information by using an approximation in direct contrast to an exact number may have the effect of focusing attention towards, or foregrounding, what is considered most important in the utterance.55 (2000: 173/175). In other words, how much and how precisely a speaker is supposed to say is subject to the maxim of quantity, which involves two parts: (1) make your contribution as informative as required and (2) do not make your contribution more informative than is required.
For example in a news report dated Sept. 2nd 2006 in Jinling Evening News about a rape crime in which the victim suffers with a group of people looking on and failing to interfere, it is written that “all this happened under the nose of dozens of onlookers”. The writer does not need, is not supposed to, and perhaps is not able to get precise on exactly how many people are standing by. Just giving the approximate number is enough.
- Deliberately withholding information
Vague language use is, in some cases, deliberately deployed to withhold information which in some cases might be expected by a hearer in a given situation. Take for example a conversation between a supervisor and a subordinate:
A： How long do you think it would take to draft the contract?
B! Well, depending on the workload oti hand, I’d think, it’ can be done in due course.
The subordinate avoids giving a specific answer that is, apparently, expected by the supervisor. By opting for the vague reply “in due course”，the subordinate tries to afford himself more time and gain more flexibility in handling a task.
- Using language realistically and accurately
Contrary to the common and accepted belief of some people, employing vagueness often helps to make one’s language more persuasive, like by adding an approximator before a number. Take for example the following dialog between a detective and a witness to a burglary.
Detective: Could you describe the looks of the burglar?
Witness: Well, the guy is white Caucasian, about thirty years old, roughly six feet, and looks kind of like a hardened one in this trade.
In the dialog above, the use of three approximators-about, roughly, and kind of-serves to make what the witness says more convincing than if he chooses such specific words as “29 years and three months old”，“186cm tall”, and “is absolutely a hardened criminal”. X^igue language use like this is ubiquitous, like in the setting of a blind date by a matchmaker, who seldom bothers to use specific statistics in introducing two strangers because that may Only make things less palpable.
- Covering lexical gaps
In daily life, it is a common experience that a speaker sometimes has to struggle with words dnd ends up choosing a vague one as replacement, for the reason that either one does not master the usage of a specific and existing wofd, or a word is just Unavailable to represent or refer to the concept materializing in one’s mind. It is necessary to accept that there is a level of cognitive activity or representation which precedes words and is independent of them, with a proof lying in the pheriomenon that one can be noticed to scratch his head and murmur something abodt a word failing him.
Vagueness is, therefore, a ploy that speakers use when they fail to find the
words they need. For example, an elevator mechanic refers to the enclosed compartment of an elevator as the “cage”, while a layman might call it the “box”, which is a vague word in itself and open to various interpretations involving varying sizes and dimensions. This is because the layman’s intuitional cognition of the object “cage” precedes his lexical command of the word “cage”.
- Avoiding rigid descriptions
Another reason why vague language is used is that one sometimes lacks sufficient information or specific knowledge regarding the topic addressed. Take for
I example a recent report by AFP on the possibility of Australia getting ready to export uranium to China, in which the reporter writes:
Australia could start exporting uranium to China within months and expects to comer about a third of the market for Beijing’s giant nuclear power program…
—AFP Sept. 4th 2006
In this example, the reporter chooses the words italicized by the author of this thesis as there is no sufficient information based on which one can come up With specific and reliable statistics to describe this event. These vague words give readers a general idea of what is possibly going to happen without taking the risk of making any judgment or making any premature announcement.
- Serving self-protection
Vagueness may be used as a safeguard against being later proved to be wrong or just because a speaker does not want to be held accountable for any potential consequences arising from what he has to say. In other words, vague language serves to create an indirect, unspecific effect and makes one’s words less certain.
In the hit American TV series 24 Hours, there is this episode in Season One in which a young man having been ordered by a terrorist to kill a woman happens to find out that the victim has survived what he had thought to be a fatal car crash artificially plotted and, when confronted by the intimidating terrorist, stammers something like “I thought she was kind of dead”，to which the terrorist replied, “Either she is dead or she is not. There is nothing like kind ofdead”.
The young man, out of fear of being punished, gives an evasive utterance by modifying “dead” with “kind of\ lending it a quality of being less blunt, the vagueness of which, unfortunately, fails to save either his life or his souL
- Presenting power and politeness
In its application, vague language is also used in some cases to achieve the effects of power and politeness in making one5s demand or request without seeming too direct or impolite. For instance, after a good time together on a date, a man walks the lady home and may hear something like this at the gate: “Would you like to come in for a drink or something!” The words “or something”一leaving options up to the man-mitigate directness and sound polite. Following is another example:
In the run-up to the U.K. handing Hong Kong over back to the PRC, Hong Kong witnessed some different opinions and dissidence which might undermine the smooth transition of sovereignty. In view of this, the then paramount leader Deng Xiaoping of China made the following remark in a meeting with his British counterpart, the then British Prime Minister Margret Thatcher: “Should any unmanageable situation arise in Hong Kong, we would reconsider the deadline to , ； / reclaim Hong Kung.’，
The remark was powerful enough, but the expression ^reconsider the deadline^^ is vague enough to lessen the bluntness. Deng managed to influentially and effectively convey his idea and the information that no separatist activity was to be tolerated without giving an alternative timetable and dragging either negotiating party into an awkward dilemma. By the way, the phrase ^unmanageable situation” in the above example is also a vague one.
Another example is the frequently heard-of remark by the Chinese government that “the strongest opposition is taken” to some act deemed provocative, where definite outrage is displayed while a vague word “strong” in its superlative degree is conducive to saving the trouble of taking specific but imprudent actions.
- Respecting atmosphere-inherent informality
X^gueness, as observed by Joanna Channell (2000: 191), is associated more often with informal and casual atmospheres like those involving close friends, who, in other words, tend to use more vague language in these circumstances than on frozen or rigid occasions like delivering a speech in front of the whole class. Informal occasions usually calls for or allows a certain amount of vague language because, to serve the purpose of better socializing and communicating in an informal atmosphere, participants in a conversation are supposed to make enough contributions to make the dialogue proceed (Quantity) and ensure what he or she says conforms to certain implicit rules, such as never to arouse discomfort or inconvenience by being overly specific (Quality). To illustrate this point, please see the invented example below of a conversation taking place between two close friends:
- Tom, next time you go to China, buy something foxme, OK?
- SurekWhat do ye need?
- Um, something that has to do withthe Giant Panda. I was thinking giving Susan (his girlfriend) a souvenir like that. She is really into pandas.
- Vbu got it.
….(OnIbm’s returning from China)
- Hey, buddy, how is the trip?
- Pretty well.
In this example, the words “Um” and “ye” serve as clear signals of this conversation being an informal one. Here, speaker A does not make an effort to indicate exactly what it is that he desires, nor does speaker B attempt to describe in detail his trip on being asked about the trip. Speaker A just asks speaker B to get him ‘(something that has to do with the Giant Panda”，a vague concept that can indicate a wide range of objects, thus leaving speaker B the freedom of choice without causing too much unnecessary inconvenience. And a concise and polite reply “Pretty well. Thanks5* serves the purpose of being appropriately polite by answering a question asked without dragging the asker into potential inconvenience or discomfort from unnecessarily rambling about the trip. In other words, both speakers are conforming to the maxim of Quantity or Quality by being vague.
In contrast, on a formal occasion, more emphasis is placed on being specific and precise. That is why a head of state is not supposed to say “about fifty or sixty civilian casualties are caused in this military operation” at a press conference—a formal occasion.
- Forms of vagueness in legal contexts
Examples given below are mostly limited to and concentrated on the lexical level of vague language, which, however, does go embodied in a variety of forms other than the above one. Here are some forms of vagueness in legal language:
- Comparative degree and superlative degree
The use of comparative degree and superlative degree of adjectives and adverbs serves to make a described object vaguer, as firstly, most adjectives and adverbs except for a few connoting such absolute values as “dead” or “alive”，tend to be essentially vague in nature, thus naturally generating vagueness in their comparative or superlative form, and secondly, the comparative and superlative words of “more”，”less”, and “most” are vague concepts themselves, for there is no way of telling the exact extent to which an adjective or adverb goes in being thus modified. And as a result of the vague nature of comparative- and superlative-degree words, relevant messages conveyed inevitably sound and are vague. Examples pile up below to illustrate this point:
a） As a legal term, the word “contract” is defined as a formal agreement, usually in writing, between two or more parties.
Article 434: Whoever during wartime injures himself in order to evade his military obligation shall be sentenced to fixed-term imprisonment of not more than three years; if the circumstances are serious, he shall be sentenced to fixed-tertn imprisonment of not Jess than three years but not more than seven years.
…Criminal Law of the People’s Republic of China
Article 166: Purchasing commodities from the nit managed by his relatives or friends at a price obviously higher than the market price, or selling commodities to such unit at a price obviously lower than the market price;
- 一Criminal Law of the People 9s Republic of China
Besides, there are some adjectives and adverbs that are comparative or superlative or of comparative or superlative meaning in themselves, and these words also account for language vagueness, for example:
Organizations in the nature of criminal syndicate prescribed in the first paragraph of Article 294 of the Criminal Law shall, at the same time, possess the following characteristics:
（2） the criminal organization is relatively stable, with a relatively large number of members, definite organizers or leaders, and basically fixed backbone members;
^—Interpretation by the Standing Committee of the National People’s Congress Regarding the First Paragraph of Article 294 of the Criminal Law of the PRC
Article 67: Any criminal who voluntarily surrenders may be given a lighter or mitigated punishment. The ones whose crimes are relatively minor may be
exempted from punishment. China
■■一Criminal Law of the People’s Republic of China
6.2 Plural nouns
Being elusive in extensional meaning, plural nouns signal a number in excess of two, but it calls for time and energy to figure out exactly how many. In a legal context, however, the case is often that where vague language is used, it is due to the absence of a need to clearly state the exact number. Examples pile up to make the point:
a） Many aspiring to be elected as the party candidate employ top public relations and advertising men, who invent clever catch phrases and set about ^selling*5 their men.
一-A Course in Translation of Legal Documents
Article 40: At the time of divorce, debts incurred jointly by the husband and the wife during their married life shall be paid off jointly by them.
…Marriage Law of the People’s Republic of China
c）第一百▼十二条：当事人一方不履行合同义务或者履行合同义务不符合 约定的厂在履行义务或者采取补救措施后，对方还有其他损失的，应当 赔偿损失。
Article 112: Where either party fails to perform its obligations under the contract or does not perform its obligations as contracted, and losses are still caused t。the other party after the performance of obligations or the adoption
of remedial measures, the party in fault shall compensate for the losses.
一-Contract Law of the People’s Republic of China
6.3 Vagueness in expressions involving figures and quantities
At first thought, figures and quantities involving vagueness in legal context may seem unimaginable and far-fetched, as it is usually assumed that legal language may allow for flexibility-vagueness—in terms of words or syntax but definitely calls for clarity and precision in depiction involving numbers. The truth is, however, that vagueness is often resorted to and found common in legal contexts where numbers are used, as embodied in the form of “intervals”, the existence of which is described by Wang Zuofu （王作福，1996:59） as a “human need in the punishment for and recognition of a crime”. Please see the following examples:
a）第六十三条：隐匿、转移、变卖、损毁被产品质量监督部门或工商行 政管理部门查封、扣押的物品的，处被隐匿、转移、变卖、损毁物品 货值金额等值以上三倍以下的罚款；有违法所得的，并处没收违法所 得。
Article 63: Anyone who conceals, moves to other places, sells, or destroys goods sealed up or seized by governments for supervision over product quality or administrative departments for industry and commerce shall be fined no less than the amount of but not more than three times the value of the said goods; the illegal gains, if any, shall be confiscated. 一Law of the People’s Republic of China on Product Quality
b）第二十五条：不满十四周岁的人有违法行为的，不予行政处罚, 责令 监护人加以管教；已满十四周岁不满十八周岁的人有违法行为的，从 轻或者减轻行政处罚。
…《中华人民共和国行政处罚法》（2004: 9） ‘
Article 25: If a person under the age of 14 commits an illegal act, no administrative penalty shall be imposed on him, but his guardian shall be ordered to discipline and educate him; if a person who has reached the age of 14 but not the age of 18 commits an illegal act, a lighter or mitigated administrative penalty shall be imposed on him.
—Law of the People’s Republic of China on Administrative Penalty
c）第十六条：国务院证券监督管理机构或者国务院授权的部门应当自发 行申请文件之日起三个月内作出决定；不予核准或者审批的，应当作 出说明。
Article 16: The securities regulatory authority under the State Council or the department authorized by the State Council shall make a decision on application documents for the issuing of securities within three months from the date of acceptance of the same. If it refuses to verify the application documents or to grant approval to the same upon examination, it shall state the reasons*
—Securities Law of the People’s Republic of China
In the examples above, vagueness with/in amount of fines, ages, and deadline exists to be as exhaustive as possible and achieves maximum flexibility in legal practice.
6.4 Vagueness in conjunction
Generally speaking, the conjunctions of “and” and “or” reflect some logic relationship which, in legal contexts, can be particularly cfucial in their potentially decisive role in determining interpretation of a legal clause and consequently the result of a case. Typically, if two conditions mentioned in a context are connected by “and”, this signifies that they are to be applied cumulatively. Conversely, the use of the connector means that the stipulated conditions are to be applied alternatively.
The use of logical conjunctions like “and” and “or”，though, can be so beguiling that even LuShuxiang went out of his way to point out in 800 Words in
Modern Chinese （吕叔湘，1981: 248） that “and”, in some cases, can be used to present an alternative in replacement of “or”, as in “Wolves and/or bears are rarely seen in this part of the country”, which does not mean, however, that these two words can always be used interchangeably. For example, there is this difference between “No smoking or speaking loudly^^ and “No smoking and speaking loudly”，as the latter means uone is forbidden to do the two things at the same time”.
According to Wu Tieping （1999: 268）, vagueness with “and” and 6<or?, lies mainly in the fact that they can be used interchangeably, but as there is no continuum between them, their vagueness is not to be classified as vagueness with a spectrum, which characteristically exhibits continuum as a feature. In this sense, vagueness with “and” and “or” may fall on the side of being somewhat “ambiguous”，as Zhao Yuanren （赵元任，1976: 241） believes in. But as Wu Tieping, with whom the author of this thesis tends to agree herein, includes this phenomenon in his book Linguistic Vagueness （1999: 268） as an example of vague language.
Relevant examples in legal context are cited below concerning conjunction vagueness:
Article 82: An insurance company shall report any changes of its chaiiman and its general manager to the insurance supervision and control authority for examination of their qualifications for the positions. （Here the italicized “and” can be used interchangeably with “or”.）
Insurance La w of the People ys Republic of China
b）第二百一十条：当事人对证券监督管理机构或者国务院授权的部门处 罚决定不服的，可以依法申请复议，或者依法直接向人民法院提起诉 讼。
Article 210: If a person concerned is dissatisfied with a punishment decision of the securities regulatory authority or the department * authorized by the State Council, such person may apply for reconsideration by or directly institute legal proceedings in a People’s Court according to law. (Here the word “or” indicates an option, is exclusive, and cannot be replaced by “and” because if so, “and” means you may take the two actions simultaneously,)
■一Securities Law of the People ys Republic of Chin
Article 20: The settler shall have the right to check, transcribe or duplicate the trust accounts related to his trust property and other documents drawn up in the course of dealing with trust business. (Here the italicized “or” can be used interchangeably with “and”.)
—Trust Law of the People’s Republic of China
6.5 Vagueness in legal expression
Vague expressions often appear in legal texts as a way to include conditions or phenomena that stand a chance of arising but which it is impossible to exhaust in a natural language, thus affording more freedom in law enforcement, and effectively precluding the possibility that a criminal manages to get away with committing an offense simply because the specific act he has performed is not clearly listed by law as a crime.
Vague expressions are common in legal texts. See the following examples: a)第四十四条：委托拍卖合同应当载明以下事项：
Article 44: In a contract for authorization of auction, the following particulars shall be specified:
(1) name or title and address of the client and auctioneer;
(9) other matters as agreed upon between both parties.
—Auction Law of the People’s Republic of China
Article 13: The party giving out the contracts shall enjoy the following rights:
- other rights providedby laws and administrative rules and regulations.
—Law of the People’s Republic of China on Land Contract in Rural Areas
一《中华人民共和国公司法》(2004:43) ， :
Article 119: A joint venture limited company shall have a manager, who shall be engaged or dismissed by the board of directors. The manager shall be responsible to the board of directors and shall exercise the following functions and powers: * • •
(8) to exercise other functions and powers authorized by the articles of association of the company and by the board of directors.
■一Company Law of the People rs Republic of China
It is worth noting that in all the three examples above, the vague expressions unexceptionally contain the word “other”，which proves to be a frequently used and most effective choice in describing or defining those phenomena and conditions that cannot be listed one by one, but failure to include which may also result in loopholes for potential offenders to evade compliance.
6.6 Other exhaustion-mtended expressions
In addition to the forms of vagueness mentioned above, legal language also sees the presence of other vague words or expressions that serve the purpose of being exhaustive. These words or vague expressions are categorized herein separately as first: they share the same vague feature of being exhaustive, and second: it seems both unnecessary and somewhat unwieldy to list them under separate categories as a result of the first reason. One common case that falls into this category is the large number of prefixes and suffixes, which play a pivotal role in the development of English and make the English language more expressive while enlarging the English vocabulary. Prefixes and suffixes can be vague as some of them signify a vague extent, range, variance, or category. It is worth pointing out, however, that not all prefixes and suffixes are necessarily vague in meaning, as some affixations indicate a definite meaning or meaning, like “dis产in “disabuse” or “bi，in “bipolar”. Other cases besides the affixes involve nouns, adjectives, adverbs and verbs. Please see some examples:
-《中华人民共和国导弹和相关物项和技术出口管制条例》 http://cq.netsh.com/eden/bbs/751605/html/tree_7321074.html ， Article 11: Where the export of missile-related items and technologies is submitted to the State Council and the Central Military Commission for approval, the timing restriction set forth in Article 10 of these Regulations shall not be applied.
-Regulations of the People’s Republic of China on Export Control of Missiles and Missile-related Items and Technologies
Article 39: Upon discovering fuel gas cylinders that fail to meet requirements such as leaky or overweight cylinders, the selling enterprise shall make proper disposal and shall not put them in the cylinder storehouse.
—Regulations of Shanghai Municipality on the Administration of Fuel Gas
C）第九条：依照本法规定采取非和平方式及其他必要措施并组织实施 时，国家尽最大可能保护台湾平民和在台湾的外国人的生命财产安全 和其他正当权益，减少损失；同时，国家依法保护台湾同胞在中国其 他地区的权利和利益。
Article 9: In the event of employing and executing non-peaceful means and other necessary measures as provided for in this Lav^ the state shall exeri its utmost to protect the lives, property and other legitimate rights and interests of Taiwan civilians and foreign nationals in Taiwan, and to minimize losses. At the same time, the state shall protect the rights and interests of the Taiwan compatriots in other parts of China in accordance with law.
–Anti-Secession La w –
In the first example J-related“ is one commonly and frequently used to describe any possible phenomenon and cover all the possibilities, as in the invented examples ”national security-related5* and “discipline-related”. And “overweight” in example two, in which the prefix “over” determines in large measure the vague identity, saves the trouble and the impossible task of giving a definite weight. And in the last example, “minimize”, a verb that also contains the prefix “mini”，suffices to put across the good intention of ”reducing losses to the utmost extent”, the expression which, by the way, happens to be another translation and vague as well.
- Suggested approaches to translation involving vagueness in legal contexts
- Vagueness for vagueness
As vagueness is an intrinsic inherent characteristic found common across dififerent languages, it is possible in most cases for a translator to render an SL text containing vague expressions into a TL one with vague counterparts. In other words, vagueness is usually not an insurmountable obstacle for translation of any kind, including literal translation, which, according to Peter Newmark, is “the basic translation proceduren (2001:70) and “the first step in translation”(2001: 76). And “a good translator abandons a literal version only when it is plainly inexact or, in the case of a vocative or informative text, badly written” (2001:76). This remark clearly indicates that literal translation is a possible and in many cases desirable approach in handling SL vagueness,
As a translation strategy, literal translation clearly finds one of its fairly literal approaches in utranslating many of types of technical text” (Mark Schuttleworth, 2004: 96), of which the legal text can be herein considered a special variety. The subtle distinction between a legal text and the technical one in a strict sense can be traced to a criterion in defining technical translation by Peter Newmark as ”potentially (but far from actually) non-cultural, therefore 4universal5 ” (2001: 151), with legal texts subject to culture-specific influences or constraints, apparently. 、
Despite the favorable and positive attitude taken towards literal translation, it I ■V ，
does not mean or in any way imply that any effort shall be made to strive for word-for-word translation, which functions to ”transfer SL grammar and word ordet, as well as the primary meanings of all the SL words, into the translation, and is normally effective only for brief simple neutral sentences” (Newmark, 2001: 69), Literal translation——translating vague expressions into vague expressions——is a possible and effective approach in dealing with translation of SL vagueness, as seen in the following examples:
a)确因苕现祭殍所限，无法达到规定高度的，经所在地的区、县环境保 护部门审批同意，可以适当降低安装高度，但空调设备托架底端距室 外地面的最低高度不律小于L 9米。
If, due to objective circumstantial restrictions^ the requirement of 2.5 meters in height can by no means be met, the height of installation may be appropriately lowered with the examination and approval of the district/county environmental protection departments in the locality, but the minimum height from the ground outside to the bottom of the racks shall be no less than 1.9 meters. (This passage is partially adapted by the author of this thesis on the basis of the original translation, which goes like “In case of the real limitations given by the objective circumstances where the requirement of 2.5 meters in height can by no means be met, the height.. .n)
-一Provisions of Shanghai Municipality for the Administration of Installation and Use of Air-conditioning Equipment
The monetized resettlement money shall be used by the users of the house to be demolished for the specific purpose of purchasing any house within this Municipality which has been verified as unoccupied cominodity residential house or other commodity residential house. This money shall not be used for any other purposes.
-Procedures of Shanghai Municipality on Compensation and Resettlement for Demolition of Residential Houses on Land-Plots
Clustered With Shaky Sheds and Crude Shacks Designated to be Reconstructed (for Trial Implementation)
c)市评审委由若十名具有高级专业技术职称的人员在每次评选工作开 始前组成。其组成人选由市教育行政部门提名，报市人民政府批准。 -《上海市教学成果奖励办法》
The Municipal Prize-Jury consists of several persons with senior professional and technical titles before the start of each evaluation. The members of the Municipal Prize-Jury shall be nominated by the municipal educational administrative departments and approved by the Shanghai Municipal People’s Government.
—Procedures of Shanghai Municipality on Incentives for Teaching Achievements
In all the examples above, vague expressions like ”客观条件所限”，”适当”，“若 千名“are faithfully rendered into vague counterparts in the form of a phrasal noun “objective circumstantial restrictions”, an adverb “appropriately”, and an adjective “several”, accomplishing what is described as literal translation above. For example, in both Chinese and English,”客观条件所限”and “objective circumstantial restrictions“ afford readers the leeway in matching them with a certain number of situations without taking the trouble of attempting to enumerate the obvious myriad of “客观条件These two counterparts in both the SL and the TL texts are referring to the same phenomena that are likewise vagUe, where literal translation is realized.
- Precision for vagueness
In addition to resorting to literal translation by rendering vague expressions into vagUe ones, cases abound where a translator transfers vagueness in the SL into precise expressions in the TL either because there is lack of counterparts in the TL or out of a desire to avoid producing translationese and to make the translation idiomatic. In other words, the translator is resorting to the approach of free translation, or sense-fbr-sense translation as in contrast with word*for-word translation, which is defined as a translation “made on a level higher than is necessary to convey the content unchanged while observing TL norms” (Leonid Barkhudarov, 1969: 11) and considered to be umore TLpriented” by Mark Shuttleworth (2004: 63).
One excerpt is taken from a book translated by the author of this thesis. The original text describes some brave firefighters rushing to rescue within the World Trade Center moments before the Tower collapsed above their heads as “sweating like pigs”. If translated as “似猪一般出汗”in an apparently faithful way, the translation would not only be fuddling, but also be derogatory and even insulting as a result of the uncomfortable connotations the word “pig” conjures up in Chinese, which is clearly not intended in the SL. In consideration of all this, the phrase is translated into “满头大汗，活像刚从烤箱出来” (Richard Picciotto,祁 冰译,2004: 1).
In legal texts, free translation means interpretation. To illustrate this point, translations below serve as good examples:
Weihai City administrates three districts and three county-level cities.
b)在普通百姓的法制意识急欲变化前，这种意识经历了一个慈步提高的 过程a (invented example)
Revolutionary progresses have given way to evolutionary changes with regard to rule-of-law awareness among the grassroots population.
- c) “From a classification standpoint, they look a lot like bugs」Tolland explained, (‘Horseshoe crabs resemble giant trilobites. And the claws of a lobster resemble those of a large scorpion/5
Corky turned green. MOkay, Fve eaten my last lobster roll.,J -Deception Point (20Q1: 344)
听他这么说，科奇的脸色变了。“得了，我再也不吃龙虾卷 了 o ^(translated by the author of this thesis)
In the first example, if the italicized “市” is directly translated as “cities”, obvious ambiguity will arise since the latter “市”is in China’s political hierarchy a county-level one under the jurisdiction of a municipality-level one. Therefore the word “市”is vague in the SL, for which a bit of interpretation is necessary in translation to achieve precision. And in the second example, specific words like “evolutionary” and “revolutionary“ are produced as corresponding to “急居产 and “逐步提高”，achieving a rhymed effect while vividly laying in juxtaposition the two different states of change. It is worth noting that in the second example vague synonyms like “dramatic”, “signiEcant”, “progressive” and “gradual” are available candidates. The word “green” in example three conveys an implication of repulsion at hearing those disgusting remarks, but its counterpart in Chinese fails to arouse among Chinese readers a similar feeling. Consequently, it is hereby suggested by the author of this thesis to translate “turning green55 as “脸 色变了“ instead of “脸色变绿了 ” for the reason that a “green face5* does not conjure up among Chinese readers what it does among English ones, with a literal “green feces, in Chinese normally observed on a starved human.
7.3 Addition of vague language
Also, called “amplification” by Sun Wanbiao (孙万彪,2003: 87), addition used to be considered a taboo in legal translation apparently because of the assumed solemnity and formality of legal language. However, with the development in translation ptactice, addition, along with deletion to be addressed later in this thesis, has evolved to become a common approach to translation for the threefold purpose of firstly, adding messages connoted but not denoted in the SL text, secondly, helping to make the meaning more specific, and last but not least, adding expressions whose counterparts are omitted, are considered unnecessary, or do not exist in the SL text, but which constitute components of a sentence in the TL or the absence of which in the TL may result in incongruity, ambiguity or confusion. To illustrate the point, examples are cited below:
- None of the parties shall be entitled to make or permit or authorize the making of any press release or other public statement or disclosure concerning this Agreement or any of the transactions contemplated in it, without the prior written consent of the other Parties, save as required by law or other competent authority.
一”A Course in Translation of Legal Documents
未经其他各方事先书面同意，任何一方均无权就有关本协议或本协议 预期的任何交易举行新闻发布会、发表公开声明或进行披露，亦无权 允许或授权欣乂进行此等发布或披露，法律或其他主管部门要求的除 夕卜。
In this example, the meaning of “他人”is connoted but not denoted in the original text, which is added in the translation after the counterparts to “permit” and “authorize“ to make the meaning complete.
- Specifically, and without limiting the generality of the foregoing, Party A shall bear all responsibility for any losses or damages suffered by party B as a result of any mistakes, errors, or omissions caused by Party A in connection with the processing and packing of the Products.
一A Course in Translation of Legal Documents
The Word “generality“ in the original text being an abstract noun, it is the translator’s task to render it into a specific counterpart, thus producing the above translation.
Article 421: Where the third party fails to fulfill the contracted obligations and causes thus losses .to the truster, the broker shall be liable therefore, unless the broker and the truster stipulate otherwise.
…Contract Law of the People’s Republic of China
Here the words “thus” and “therefore“ are added in the translation in honor of the English’s innate inclination to state a logical relationship, which is more often implied but not stated in Chinese, as in the original text in the example above.
7.4 Deletion of vague language
Eerie as it may seem at first sight, this very approach serves as a common translation tactic9 with one important reason being the vast discrepancy between English and Chinese which causes the extreme scarcity of fully equivalent expressions and a world of difference in their respective usages. Faithfully transferring all the structures, expressions, or words into the TL is as clumsy as it is evidently impossible, for it will probably be to no avail and end up producing a gtitty translation. Deletion helps reduce some irrelevant, trivial or redundant information, makes the translation appear smooth, and therefore improves readability.
a）乙方也充分了解到，深圳科技开发公司是中国国内从事高科技研究和 开发的产业经济实体，在计算机信息处理然纺也早已有发展的计 划……
—《法律文本与法律翻译》（2006: 31） :
Party B also understands that Shenzhen Science arid Technology Development Company is an economic entity engaged in the research and development of high technology in China, and that the Company has plans to develop the computer information processing…
-Legal Texts and Legal Translation
- b) The disproportionate industrial investment and irrational structure of the energy industry are to blame for the imbalance of fastconsumption and slow
Article 102: Whoever commits the crime prescribed in the preceding paragraph in collusion with any organ, organization or individual outside the territory of China shall be punished according to the foregoing.
—Criminal Law of the People’s Republic of China
In Chinese there is this abundance of what Sun Wanbiao labels as “auxiliary words5, (2004:92), which have already lost concrete meanings and usually appear along with other words to indicate a category. Vague words like “问题”局面”, “形势”，”情况”,and “领域”in example A, to name only a few, all belong to this classification and do not need to be translated into English, which is in possession of a huge stock of abstract nouns that already contain the meaning of a corresponding vague category word.
The italicized vague words of “fast” and “slow” in example B are deleted from the translation with the semantic loss compensated for by “高于”，freeing I
readers from a difficult and even impossible task of struggling to define the degree of “fastness” and “slowness”. This example integrates free translation and deletion.
In the last example, “的规定” in the SL text finds no separate equivalent of its dwn because the word “foregoing” rises to the occasion to convey enough information without dragging the TL into a clumsy and redundant state, the skill of which is observed frequently in legislative drafting and legal writing.
For all the advantages of deletion as a feasible approach mentioned above, it still calls for exceptional caution in applying this very tactic, which Peter Newmark refers to as a “rather imprecise translation procedure“ that a translator practices “intuitively in some cases, ad hoc in others” (2001:90). Efforts should be made to avoid casually practicing this tactic and consequently finishing up omitting what is of equal importance to both the TL and the SL.
- Substituting four-character Chinese phrases for vague ideas or vice versa
Almost all translation practices involve to some extent fbreignization and domestication and a typical translator usually avails himself of both approaches either intentionally or unintentionally. As one distinctive feature of the Chinese language, four-character Chinese phrases have played a pivotal role in the development of Chinese and act, along with couplets among others, as perfect epitomes of Chinese philosophy being embodied through antithesis. In practice, substituting four-character Chinese phrases for vague ideas in the SL and vice versa proves to be a useful tactic subject in large measure to the principle of domestication in that it refines and smoothes the translation. For illustration, see examples cited below:
- Some wallow in feastingand hedonism and lead debauched lives; some take and give money and even trade in official posts.
—China Daily, Sep. 26th, 2006
一些人花天酒地,耽于享乐，过着荒淫放港的生活；还有一些人行贿 受城，甚至买官卖官。 .
一《中国日报》 ； .
- 一定要言行一致，理论与实践密切结合，反对华标实和任何短套， 少说空话，多做工作，扎扎实实，埋头苦干。(invented example) Deeds and words must match and theory and practice must be closely integrated. Flashiness without substanceand any sort of boasting must be rejected. There must be less empty talk and more hard work. And we must be steadfast and dedicated.
c)我们将不遨余力地阻止任何旨在破坏日中关系的企图。并且我们坐定 不移地相信，通过两国人民的共同努力，新世纪里两国的关系会迎来 一个更加美好的未来。
No efforts will be spared to deter any intention to undermine the relationship between Japan and China and it is our firm and unwavering belief that joint efforts by the peoples of our two countries will pave the road for a brighter future in the new millennium.
It is worth noting that this very tactic is most appropriate and effective in contexts other than translation of precisely and formally worded texts like laws, regulations, and contractual articles, to name only few, as four-character Chinese phrases hint to some degree at literariness, informality and casualness and may seem out of place in such contexts as an official communique or a verdict. This certainly does not mean four-character Chinese phrases fail to befit formal occasions, as can be demonstrated in examples above, with example C being an excerpt from an official speech delivered at a press conference, a very formal occasion.
- Converting vague phrases into sentences
Sometimes Vague phrases can be rendered into sentences out of a concern for stylistic smoothness and readability. In other words, a literal translation where expressions are directly presented as counterparts to vague ones in the SL may impress the listeners or readers as clumsy or unnatural. For example:
- There is a universal sentiment among the grassroots population that the current judicial system is beleaguered with low efficiency, a sizable backlog of cases to hearyunfair judgment, lack of transparency in law enforcement^ and a staff redundancy, (invented example)
- A democratic society enjoying a . transparent legal environment, uncorrupted governance, effective check-and-balance, widespread welfare coverage and a strong sense of security among the peoplecan be defined as a sound one. (invented example)
一个健全的民主社会的标准应该是：享有透明的法律环境,廉洁的政 府,具备有效的制衡机制,人民普遍享有福利保障并且具有很高的安 全感。
Clearly from the first example it can be told that should the translation go like “低效的效率、大量的积案、不公的判决、缺乏透明度的执法过程和冗余的 人事“，it would impress the readers or listeners as dreadfully clumsy as several expressions of the same structure are juxtaposed, resulting in a lack of variety. In example B, if the translator should place all the italicized expressions before the word “社会”as pre-modifiers, producing a translation that might go like ”享有 透明法律环境，廉洁的政府，具备有效的制衡机制，人民普遍享有福利保障 并且具有很高的安全感的社会”,such a translation undoubtedly contravenes or disregards the principle or criterion of avoiding multiple pre-modifiers in front of a word and trying to disperse them into separate sentences instead.
- Using neutral terms
Thanks to the drastic differences between legal systems in China and other countries, a large number of vague terms in British or American laws fail to find equivalents in the Chinese language in terms of concepts and theories, resulting in a void of counterparts and creating obstacles in finding ready terms in Chiriese by the ttanslator. For example, there is this concept of “诽谤” in Chinese laws while English has “libel” and “slander”, which, although normally translated as “诽谤” alike, really signifies “书面t非谤”and “口头t非谤”，meaning respectively the performance of such an act in writing or orally. And usually it is the case that in a legal context a word tends to adopt a meaning completely different from what it means in daily usage.
The disparity in legal terminologies and the fact that special meanings can be instilled into apparently common vague words in a legal context justify a translator enjoying the freedom to render special terms in the SL into neutral terms—terms whose usage is not limited to a certain field like the law—in the TL, under the precondition that the original text or speech is correctly understood, of course. Examples cited below serve to illustrate the point:
- The vendor shall procure that the purchaser acquires good titleto the shares free from all charge, liens, encumbrances, equities, and claims whatsoever.
-一English to Chinese Translation on the Language of the Law
- It is hard to imagine that such a big-name multinational corporation would compel its employees to sign a yellow-dog contract,(invented example) 想不到这么一家知名的跨国公司竟然会强迫其员工签署不寿物人Z 会的协议。
- d) Within seven working days of receiving the application for bankruptcy protection, an administorwill be dispatched to the applicant company for transitory management, (invented example)
在收到破产保护申请的七个工作日之内，法庭指定的破产公司管理人 将被.派往申请公司负责临时管理。 ：
It can be seen from the first example that a common word “good” comes to possess a different meaning once in a legal context. In example two, one can realize there is no counterpart for the term “yellow-dog contract” in the TL, whoBc absence makes the translator resort to the using of a neutral term-instead of literally translating the term as “黄狗合同”，which sounds absurd and makes no sense to the TL speakers. And in example C, the concept’of ctadministor,) used in this sense finds its origin in the U.K. back in the 1980s but is yet to be fully introduced into the legal system in China, which explains the absence of a ready term as equivalence and justifies the approach of supplying some neutral words to interpret this special term.
The year 1997 saw China reclaim sovereignty over Hong Kong and officially ushered in an era when legal papers of the Special Administrative Region of Hong Kong shall appear in both English and Chinese, and versions in both languages shall be deemed as being on equal footing in a court of law. Legal translators, among other legal professionals, begin to assume an increasingly critical role in Hong Kong’s society and legal translation is attached cumulative importance to, making demand for the training of more qualified legal translators and study into the field of legal translation.
In 1999, the phrase “rule of law” was, for the first time in China’s history, officially written into the Constitution of the PRC, signaling a tendency or inclination to rule the country according to law and indicating a desire or resolve to put an end to the already-proved-unproductive practice of rule of man. It is an acknowledged fact that a nation is to be governed according to law to be a sound society. Without doubt, the law has started to and will play an ever more important part in modem China, paving the way for the schooling and training of more legal professionals, including legal translators.
The year 2001 witnessed China’s entry into the largest non-political organization in the world-the WTO-and marked a watershed when China’s trade with other WTO member countries was supposed to start following WTO rules. From that year on, China’s exchange and communication with the outside world have intensified in an unprecedented way, which calls for the preparation of more bilihgual experts in relevant fields, of which legal translation is one of the most crucial.
The three examples above, among others, are cases in point to prove the significance and magnitude of legal translation in terms of both theory and ptactice, and it is against a background as such that the author ventures to delve into legal translation and combines it with vague language study, which is drawing increasing attention of linguists at home and abroad, of whom Wu Tieping has been a prominent contributor to this discipline of study and is considered a guru, whose work-Vague Language Studies-has been of great help in the author’s rudimentary understanding of and research into this field.
With that in mind, the author sets out to introduce the significance of legal translation and vague language study before defining some key concepts perceived as relevant both to this very thesis and to concerned studies, including translation, legal Language, vague Language, ambiguity and polysemy.
After defining a few key concepts, the author proceeds to develop a significant part of this thesis, making efforts to identify the reasons why vagueness exists and is inherent in human languages. Two reasons, subjective and objective, are provided herein in a tentative way.
Explaining the reasons for vagueness in languages paves the way for describing roles played by vagueness in human languages. While the previous chapter, namely, vagueness inherent in legal language, makes an attempt at identifying the macro reasons, this chapter aims at pinpointing specific factors or motives contributing to the use of vague language, i.e” roles played by vague language, giving as classifications by enumerating giving the right amount of information, deliberately withholding information, using language convincingly, lexical gaps, jacking specific information, self-protection, power and politeness, as well as informality and atmosphere.
Being intimately relevant to the concerned studies, the sixth and seventh chapters form the backbone of this thesis. In chapter six, efforts are made to identify five types of vague language, including comparative degree and superlative degree, plural nouns, vagueness in expressions involving figures and quantities, vagueness in conjunction, vagueness in legal expression, as well as other exhaustion-intended words. What merits special attention 诏 that the very five forms of vagueness listed fall short of being exhaustive, but are inclusive instead, as plural nouns are separately listed while some individual nouns in their single form can also be vague by nature.
Chapter seven keeps track of combing legal translation and vague language, proceeding to suggest a number of approaches to translation of vagueness in a legal context. A total of seven approaches are offered herein as deemed by the author to be relevant to and effective in legal translation. They are literal translation, free translation, addition of vague language, deletion of vague language, substituting four-character Chinese phrases for vague ideas or vice versa, converting vague phrases into sentences, and using neutral terms. It is worth pointing out that since skills of or approaches to translation have already been offered or suggested in batches, some of the approaches listed here may overlap those previously proposed but are none the less recommended herein as pertinent to translation of vague language in a legal context in an effective but not exclusive manner.