Legal Translation and Cultural Transfer: A Framework

Transcription

1 19th European Symposium on Languages for Special Purposes "Languages for Special Purposes in a Multilingual, Transcultural World" 8-10 July 2013 Centre for Translation Studies, University of Vienna,Vienna, Austria Legal Translation and Cultural Transfer: A Framework Ling WANG, PhD Lecturer Department of Translation The Chinese University of Hong Kong

2 Translating the Common Law into Chinese in Hong Kong-Historical Background Since 1842, English has been the language of the law in Hong Kong Campaign s in the late 60 s and early 70 s in the 20 th century, the Official Languages Ordinance was enacted in 1974 which providing that the English and Chinese languages are declared to be the official language of Hong Kong for the purposes of communication between Government or any public officer and members of the public.

3 Translating the Common Law into Chinese-Historical Background Sino-British Joint Declaration in 1984 Sect. 4 of the Official Language Ordinance (Cap.5) in 1987 provides that all ordinances shall be enacted and published in both official languages The translation work started in mid-1988 and was completed in May Current Ordinances and Subsidiary Legislations in both English and Chinese

4 Understanding the Nature and Problems of Legal Translation in Hong Kong The specific nature of legal translation lies in that most legal concepts are the product of a national legal system and legal culture, thus the same legal meaning is what the legal translator strives for Theoretical problems of legal translation Problems of translation arising from language Problems of translation arising from legal and cultural factors

5 Developing the Common Law Chinese in Hong Kong Objective and Principles The Chinese version should accurately express the spirits and concepts of the English source text The legal meaning of the Chinese version should remain the same with those of the English source text Presumption of same meaning in bilingual texts : Section 10B(2) of Cap. 1 presumes the provisions of a statute to have the same meaning in each authentic language text.

6 The Questions If translating a text/legal text is not merely translating its language but also translating the culture/legal culture which gives the text meaning, how? If translation is not merely a linguistic transcoding but a cultural transfer, what does cultural transfer mean in translation/legal translation theory and how it is effected?

7 The Turn of Translation Studies Translation theory: From interlingual translation to intercultural translation A thorough understanding of the concept of cultural transfer is vital to the proper understanding of: --the nature of translation and legal translation --related notions such as domestication, foreignization, legal culture, transfer of legal culture --the goal and strategy of legal translation

8 Clarifying the Notion of Cultural Transfer The proposition of cultural transfer vs. transcoding The criticism of Catford s linguistic theory of translation by Snell-Hornby: --Illusion of equivalence --Translation is not transcoding but a cross-cultural transfer

9 Clarifying the Notion of Cultural Transfer Snell-Hornby s view on cultural transfer -Understanding the ST and TT requires an understanding of its socio-cultural context -Translation is an act of communication oriented towards the function of the target text

10 Clarifying the Notion of Cultural Transfer Analysis of Snell-Hornby s view on cultural transfer -What gets tranferred in translation should be the socio-cultural meaning of words, not the surface-meaning of words -Translation as domestication: conforming to the linguistic and cultural norms of the target language

11 Clarifying the Notion of Cultural Transfer The dichotomy of cultural transfer Cultural transfer as foreignization Schliermacher (1813) Venuti (1992) Cultural transfer as domestication Snell-Hornby (1988,2006)

12 Clarifying the Notion of Cultural Transfer Foreignization -Involving both linguistic and conceptual adjustment of the target language Domestication -Requiring no, or little linguistic or conceptual adjustment of the target language

13 What Does Cultural Transfer Mean in Legal Translation? The goal of legal translation revisited sameness in legal meaning Domestication is not appropriate in legal translation since the kind of transfer translation effects in legal translation is linguistic and conceptual Conceptual changes take place at metalinguistic level

14 Transferring the Legal Culture of the Common Law into Chinese Conceptual thinking of the Common Law shared by its legal professionals: -legal concepts -legal principles

15 A Framework for Translating the Common Law into Chinese as Cultural Transfer We will show that transfer of a legal culture necessitates both conceptual and linguistic adjustment on the part of the receiving culture Two levels of transfer -Linguistic level -Conceptual (metalinguistic) level

16 Problems in Translating the Common Law into Chinese Problems arising from cultural differences between English and Chinese Problems arising due to the differences between the syntactic arrangements, word order and language systems generally of English and Chinese for brevity s sake linguistic problems.

17 Problems arising from cultural differences between English and Chinese The most daunting aspect of translating the common law into Chinese is the culture-specific quality of the source legal texts. eg. the residual principle

18 Problems arising due to the linguistic problems Voices are rather considered to have particular functions of their own than being used for variation in the legal text. lengthy and complicated sentences are frequently used, often involving nominalization, subordination and coordination, all of them surface features that help to make the common law seem so markedly complex.

19 Principles in Legislative Translation Sin (1989; 1993; 1996) proposed the following general principles in connection with the legislative translation in Hong Kong: -Fixing the semantic reference system; -Adjusting the target language; -Building metalinguistic devices to fill the conceptual gap.

20 Building Conceptual Mechanisms for Legislative Translation Constructing a metalinguistic mechanism by which the missing link (Sin, 1998, p. 195) could be reconnected: Write commentaries or articles explaining why and how the translation was done Translation of related legal works into Chinese. Compiling English-Chinese legal dictionaries

21 Legal Terminology: A system of Reference Each legal system has its own language (s) and its own system of reference The Common Law system has its own semantic referential system The search for terminological equivalents in legal translation

22 Degree of Equivalence Full equivalence (eg. ordinance) Partial equivalence (eg. negligence) Non-equivalence (eg. writ)

23 The Problems A term in the Common Law may not have the exact equivalent in Chinese A term in the Common Law may not have any equivalent in Chinese

24 Classification of Legal Vocabulary Technical terms: Terms of Arts Semi-technical terms Everyday vocabulary

25 Translating Legal Terminology Major techniques for translating technical and semi-technical terms (Nonequivalence and partial equivalence) -Neologism: creating a new term -Re-definition: assigning new meanings to existing terms -Paraphrase: explain the intended meaning of a term in neutral language

26 Translating Technical Terms Translation of legal terminology Terms used exclusively in the legal sphere with no application in ordinary language Examples: Chattels ( ) Chose in action ( )

27 Translating Semi-technical Terms They are common English terms which are also used in legal context and acquired a specific legal meaning Fixing the semantic referential scheme

28 Translating Semi-technical Terms Translation of semi-technical terms --Legal meaning of the term shares with its core meaning (eg. negligence) --Part of the legal meaning of the term overlaps with its core meaning (eg. malice ) --Legal meaning of the term totally deviates from its ordinary meaning (eg. abandonment, warranty )

29 Translating Semi-technical Terms Examples: --Negligence ( ) --Possession ( vs. / / / ) --Abandonment ( ; ) --warranty ( ; )

30 Building Conceptual Mechanisms for Legislative Translation The Bilingual Laws Information System (BLIS) ( The minutes of BLAC meetings Hong Kong Lawyer, the official journal of the Law Society of Hong Kong

31 Building Conceptual Mechanisms for Legislative Translation Reports of Chinese cases in the Hong Kong Law Reports and Digest and Hong Kong Cases; Important cases provided by the Judiciary and some law reports have been published in both English and Chinese versions; The Chinese translations of key legal phrases taken from judgments in Hong Kong Lawyers;

32 Building Conceptual Mechanisms for Legislative Translation Several law digests have been published including Chinese Digest of Hong Kong Contract Law(1995), Chinese Digest of the Criminal Law of Hong Kong (1996),Chinese Digest of the Criminal Procedure Law of Hong Kong (1996) and Chinese Digest of the Common Law of Hong Kong The Hong Kong English-Chinese Legal Dictionary (2005) published by Butterworth

33 Building Conceptual Mechanisms for Legislative Translation Translation of judgments as metalanguage -Translations of the term malice in the legislation and the case law -Transfer of the legal concepts and legal principles into Chinese

34 Concluding Remarks Two diametrically opposite senses of the concept of cultural transfer Cultural transfer in legal translation as a typical case of foreignization Metalinguistic mechanisms are required in order to effect successful cultural transfer in legislative translation

35 Thank You!