Cultural Transfer in Legal Translation: A Case Study of

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CITY UNIVERSITY OF HONG KONG 香港城市大學

Cultural Transfer in Legal Translation A Case Study of the Translation of the

Common Law into Chinese in Hong Kong

法律翻譯中的文化轉移香港普通法中譯個案研究

Submitted to Department of Chinese Translation and Linguistics

中文翻譯及語言學系 in Partial Fulfillment of the Requirements

for the Degree of Doctor of Philosophy 哲學博士學位

by

Wang Ling 王淩

April 2008 二零零八年四月

ii

Cultural Transfer in Legal Translation

A Case Study of the Translation of the Common Law into Chinese in Hong Kong


Abstract

The term ldquocultural transferrdquo has featured prominently in contemporary

translation theory Yet perplexing as it may seem the term can and has in fact been

used to refer to two diametrically opposite concepts of translation On the one hand

ldquotranslation as cultural transferrdquo can be understood as ldquotranslation as an act of

cross-cultural communication effected by matching the cultural rather than the

linguistic elements of the two languages involvedrdquo On the other hand ldquotranslation as

cultural transferrdquo can also be understood as ldquotranslation as a process of importing or

even transplanting the culture of the source language into the culture of the target

languagerdquo Understood in the former sense translation is essentially an act of

domestication requiring no or little linguistic or conceptual adjustment of the target

language whereas understood in the latter sense translation involves both linguistic

and conceptual adjustment to accommodate the imported culture thus always

resulting in the foreignization of the target language

This study examines these two senses of cultural transfer in the context of law

translation Using the translation of the common law into Chinese in Hong Kong as a

case study it investigates which of the two senses is relevant to law translation which

aspect or aspects of the culture of the common law has or have been transferred how

such transfer has been effected and what form it has taken Through a critical analysis

iii

of the problems involved in the translating process in question it is hoped that this

study will shed some light on the question of cultural transfer and more importantly

on the nature of legal translation

This thesis is divided into two major parts Part I consists of four chapters that

provide the theoretical framework and historical background for the study Chapter 1

sets out the scope and methodology of this study by way of a brief critical account of

studies in translation theory and legal translation Chapter 2 traces the evolution of the

concept of cultural transfer in translation theory clarifies the opposed senses in which

is understood by exploring the dichotomy of domestication and foreignization and

argues why legal translation in the context of Hong Kong cannot be a case of

domestication Chapter 3 investigates the various senses of legal culture and

highlights the essential features of the legal culture of the common law Chapter 4

gives a brief historical account of the importation of foreign laws into China since the

Late Qing period (晚清) as a typical case of transfer of legal cultures examining what

such transfer involved in the process Part II is the case study of the translation of the

common law into Chinese in Hong Kong Chapter 5 examines the translatability of

the common law and analyzes the specific features of the common law language from

the aspects of its terminology legislation and case law Chapter 6 begins with a

critical analysis the problems relating to law translation in general and translating the

common law into Chinese in particular It then sets out the theoretical framework for

effecting cultural transfer It examines in detail the nature of cultural transfer in law

translation with special reference to the translation of common law terminology

Chapter 7 summarizes the study and makes some concluding remarks on its

significance for translation studies as well as its potential for future research

iv

Acknowledgments

Research is a journey of exploration Writing this dissertation has been a

challenging intellectual journey accompanied by moments of frustration

disorientation and even self-doubt One person my supervisor Dr Sin King-kui has

guided me through the twists and turns of this journey But for his patience mentoring

and encouragement I could not have completed this dissertation nor could I have

appreciated both the rigours and the joys of true scholarship He has my deepest

gratitude

I must also thank Dr Zhu Chun-shen and Dr Cheng Po-suen of my Qualifying

Panel for their valuable comments on the draft of the dissertation as well as their

unfailing support throughout my candidacy I should like too to thank the friendly

staff of the General Office of the Department who have given me enormous clerical

support in the course of my research

My thanks also go to my colleagues in the Department of Translation The

Chinese University of Hong Kong for their kind concern during the progress of my

research and their warm words of encouragement

I would like to extend a special note of thanks to my teachers in the Department

of Foreign Languages and Literature Fudan University for introducing me to the

beauties and intricacies of translation In particular I would like to thank Prof Huang

Yong-min Prof Lu Gu-sun Prof Xiong Xue-liang and Prof He Gang-qiang for

helping and encouraging me in my pursuit of further translation studies

v

I am also grateful to my fellow students and dear friends Kiki Baby Ace Sarah

Samantha Joyce Beatrice Xiao Hu Zhang Wan-min Wu Qing Shen Yuan Jiang

Qin Wen Stella Edison April Wu Xiao Sting and Lois for sharing the pains and

joys of my study

Finally I owe more than I can say to my husband Alex my sister Ciecely and

other family members for their love and unfailing support I thank my parents from

the bottom of my heart for their faith in me and for the love and support that enabled

me to embark on an academic career It is to them both that I dedicate this humble

piece of work

vi

TABLE OF CONTENTS

Title Page i

Abstract ii

Acknowledgments iv

PART I

Theoretical Framework and Historical Background

Chapter 1 Introduction 1

11 Translation Theory From Interlingual Translation to Intercultural

Translation 1

12 The Emergence of Cultural Transfer in Translation Theory 4

13 Legal Translation Theory In Search of Goal and Strategy 8

14 Rationale for the Study 12

Chapter 2 Translation as Cultural Transfer 14

21 Clarification of the Notion of Cultural Transfer 14

211 Cultural Transfer vs Transcoding 14

212 Vermeerrsquos View of Translation as Cross-cultural Transfer 24

213 Snell-Hornbyrsquos View of Translation as Cultural Transfer 28

214 Domestication vs Foreignization 35

vii

22 Legal Translation as Cultural Transfer 40

221 Legal Transplant and Legal Translation 40

222Translating the Common Law into Chinese as Cultural Transfer 46

223 Metalinguistic Devices and Cultural Transfer in Legal Translation 51

Chapter 3 The Concept of Legal Culture in Legal Translation 57

31 Previous Studies of Legal Culture 57

311 Law and Culture 57

312 Legal Culture as Conceptions of Law 62

313 Legal Culture as Both Conceptions and Practices of Law 66

32 Clarification of the Concept of Legal Culture 69

33 The Legal Culture of the Common Law 73

34 The Legal Culture of Traditional and Modern Chinese Law 77

Chapter 4 The Transfer of Legal Culture 89

41 Legal Transplant and Transfer of Legal Culture 89

411 Introduction 89

412 Legal Transplant Legal Imposition and Legal Translation 92

42 Transfer of the Legal Culture of Foreign Laws in China 98

421 Transplant of Foreign Laws since Late Qing Dynasty in China 98


viii

PART II

Case Study of the Translation of the Common Law

into Chinese in Hong Kong

Chapter 5 The Language of the Common Law 106

51 The Translatability of the Common Law 106

52 Legal Terminology and Legal Concepts 112

53 The Language of the Legislative Texts and Bilingual Legislation 120

54 Case Law Languagemdashthe Language of Judges 133

Chapter 6 Cultural Transfer in Translating the Common Law into Chinese

61 Transfer of the Legal Culture of the Common Law 142

611 Problems in Translating the Common Law into Chinese 142

612 Legal Translation as Cultural TransfermdashTwo Levels of Transfer 152

62 Cultural Transfer in Translating the Common Law into Chinese

-- Analysis of Selected Translations 159

Chapter 7 Concluding Remarks 189

Bibliography 194

Chapter 1

Introduction


Translation

Traditionally regarded as a sub-field of linguistics translation was for a long

time treated as an important means of interlingual communication As Jakobson (1959)

put it ldquotranslation properrdquo was the transposition of a text from one language to

another ldquointerlingual translationrdquo as he called it ldquoinvolves two equivalent messages

in two different codesrdquo However he conceded that there was no full equivalence

between code units (1959 p 233) Jakobsonrsquos view was shared by theorists like

Catford and Nida who emphasized transference of meaning across languages and the

resultant linguistic equivalence Fidelity to the original text was considered the most

important principle governing translation and the search for best equivalence became

its primary goal Translation studies in this period stressed the textual elements

Catford for instance emphasized the correspondence of lexicon and grammar (1965)

Nida and Taber classified ldquoformal correspondencerdquo and ldquodynamic equivalence as two

major types of equivalence ldquoFormal correspondencerdquo is concerned with the message

itself and ldquodynamic equivalencerdquo with the effect (1964 1982) They acknowledged

that there were not always formal equivalents between language pairs Focusing on

the language function and relating linguistic features to the context of both the source

and target text House (1977) set out his notions of semantic equivalence and

pragmatic equivalence and proposed that the function of a text be determined by the

situational elements of the source text A more elaborate discussion of the notion of

INTRODUCTION 2

equivalence can be found in Baker (1992) who examined the notion of equivalence at

four different levels in relation to the translation process ie the word level the

grammatical level the textual level and the pragmatic level Taken together these

levels encompass all aspects of translation process

While characterizing translation as an interlingual rather than a socio-cultural

activity scholars such as Catford and Nida did not lose sight of the role that cultural

elements play in the process of translating Catford drew a distinction between

ldquocultural untranslatabilityrdquo and ldquolinguistic untranslatabilityrdquo (1964 pp101-03) Nida

examined cultural problems in translating (1981) Newmark (1988) in particular

examined untranslatable culturally specific items and put them into different

categories (p 95) However he rejected the ldquoprinciple of equivalencerdquo underlying

Nidarsquos theory of dynamic equivalence and suggested two approaches to translation

namely communicative translation which aims to produce on the target reader effects

similar to those on the source reader and semantic translation which aims to render

ldquoas closely as possible the semantic and syntactic structures of the second languagerdquo

(1988 pp 39-41) The former gives priority to the response of the target language

reader while the latter foregrounds the meaning of the original The appropriateness of

these two methods depends on the text-type and the purpose of the translation

The cultural dimension is central to both the polysystem theory of Zohar (1990)

and Touryrsquos (1980) descriptive approach The polysystem theory treats any semiotic

(poly)system (such as language or literature) as a component of a larger (poly)system

or culture Translated literature is therefore a system operating as a part of larger

social cultural and historical systems of the target culture The correlations between

literature and other cultural systems for instance language society or ideology could

INTRODUCTION 3

be seen as a functional relationship within a cultural whole By employing the notion

of norm in his treatment of translation criticism Toury (1980) pointed us in a new

direction for translation studies As he sees it translation criticism consists in the

study of metatexts produced in a given receiving culture under certain discernible

socio-cultural constraints Translation criticism therefore performs the task of

reconstructing such constraints as are operative in a particular translation It sets out to

identify constraints of translation behaviour describe the decision-making process the

translator has gone through and formulate hypotheses capable of being tested by

further studies Touryrsquos idea can be said to have inspired the ldquocultural turnrdquo in

translation studies in the 1990s

It was around this time too that translation theory began to undergo a rather

radical transformation Translation was increasingly seen as involving a conscious act

of manipulation that moved the author toward the reader and made texts as palatable

in the target language and culture as they were in the source language and culture The

ideals of equivalence and faithfulness were now being seriously questioned The

cultural turn in translation studies shifted away from purely linguistic analysis

redefining translation as intercultural communication and focusing on the

socio-cultural and ideological dimensions of translating For Lefevere (1992)

translation was essentially rewriting and manipulation He remarked

On every level of the translation process it can be shown that if linguistic considerations enter

into conflict with considerations of an ideological and or poetological nature the latter tend to

win out (p 9)

INTRODUCTION 4

Another cultural theorist Venuti (1995) who drew a distinction between

domestication and foreignization also insisted that translation must take into account

the value-driven nature of the socio-cultural framework within which it is carried out

Culture and cultural elements are no longer seen as impediments to successful

linguistic transfer Rather culture is an encompassing framework within which

effective translation operates The cultural turn widens the scope of translation by

revealing that the translator not only works with the language pair in question ie the

source text and the target text but also with the two cultures ie the source culture

and the target culture Translation is now considered a purposive activity The

outcome or product of translation is understood in a wider context and the factors

affecting the translatorrsquos decision making process are given special emphasis

12 The Emergence of Cultural Transfer in Translation Theory

The characterization of translation as cultural transfer is an outcome of the trend

mentioned in section 11 According to Vermeerrsquos (1996) skopos theory translation is

a cross-cultural transfer a form of human interaction determined by its purpose or

ldquoskoposrdquo Following Vermeer Snell-Hornby (1988) denounced linguistic transfer as

inadequate contending that translation should instead be seen as a cross-cultural event

Translation as cultural transfer has become a dominant view resulting from the

ldquocultural turnrdquo in translation theory and a ldquoshift of emphasisrdquo from ldquoformalist phaserdquo

to ldquobroader issues of context history and conventionrdquo (Bassnett 1998 p 123)1

1 Back in 1990 Bassnett and Venuti observed that major changes in translation studies had taken place

They remarked

INTRODUCTION 5

Hatim (2001) also labelled this ldquoinfluential trend in recent translation studiesrdquo as ldquothe

cultural modelrdquo an approach contrary to the linguistic model which dominated early

translation studies in the last century (p 44) Snell-Hornby (2006) described the

ldquocultural turn of the1980srdquo as the trend driven by the theoretical impetus from various

sources such as descriptive translation studies skopos theory and deconstructionism

(p 47)2

Snell-Hornby (1988) first employed the term ldquocross-cultural transferrdquo in

subscribing to Vermeerrsquos view that translation was not the trans-coding of words or

sentences between languages but a ldquocross-cultural transferrdquo (p 46) She argued that

in traditional linguistic oriented theory ldquothe text was then seen as a linear sequence of

units and translation was merely a trans-coding process involving the substitution of a

sequence of equivalent unitsrdquo and that the equivalence-centred studies carried out by

Jacobson Nida and Catford were crippled by the very concept of equivalence (pp

16-19) She contended that the pursuit of equivalence was an incurable illusion based

on the false presumption of absolute symmetry between languages and was thus a

distortion of the fundamental problems in translation Her denunciation of equivalence

was best represented by the following remarks

The object of study has been redefined what is studied is the text embedded in its network of

both source and target cultural signs and in the way Translation Studies has been able to utilize

the linguistic approach and to move out beyond it (p 12) 2 Toury (2007) noted the influence of cultural studies in translation He remarked

The last decade has been marked by the foregrounding of cultural concerns in all the sciences of

man including the ones interested in language and language behavior This development has

already brought along substantial changes in the way phenomena lsquoin the world of our

experiencersquo are approached which students of translation were among the first to applaud - and

adopt There were even colleagues who nicknamed the 1980s the era of rsquocultural turnrsquo in

Translation Studies (eg Bassnett and Venuti 1990) even though it is not always all that clear

what this term was meant to cover (p 1)

INTRODUCTION 6

In this study the view is also taken that equivalence is unsuitable as a basic concept in translation

theory the term equivalence (the authorrsquos italics) apart from being imprecise and ill-defined

(even after a heated debate of over twenty years) presents an illusion of symmetry between

languages which hardly exists beyond the level of vague approximations and which distorts the

basic problems of translation (1988 p 22)

In explaining the nature of translation she noted that ldquolanguage is not seen as an

isolated phenomenon suspended in a vacuum but as an integral part of culturerdquo (p

39)3 Apart from the definition given by Goodenough and Gohring Snell-Hornby

also subscribed to Vermeerrsquos concept of culture in translation She remarked

This new definition correlates with the concept of culture now prevalent in translation theory

particularly in the writings of Vermeer hellip and is the one adopted in this study hellip the concept of

culture as a totality of knowledge proficiency and perception is fundamental in our approach to

translation If language is an integral part of culture the translator needs not only proficiency in

two languages he must also be at home in two cultures In other words he must be bilingual and

bicultural (cf Vermeer 1986) (1988 pp 40 42)

According to Snell-Hornby Vermeer was among the first to argue that the linguistic

approach was far from adequate for understanding the nature of translation and that

3 Commenting on the definition provided by American ethnologist Ward H Goodenough and German

scholar Heinz Gohring Snell-Hornby(1988) remarked

There are three important points common to both definitions quoted above but which are

especially prominent in Gohringrsquos German adaptation firstly the concept of culture as a totality

of knowledge proficiency and perception secondly its immediate connection with behaviours

(or action) and events and thirdly its dependence on norms whether those social behaviours or

those accepted in language usage (p 40)

INTRODUCTION 7

translation was first and foremost a cross-cultural transfer In this regard Vermeer

remarked

Translation is not the trans-coding of words or sentences from one language to another but a

complex form of action whereby someone provides information on a text (source language

material) in a new situation and under changed functional cultural and linguistic conditions

preserving formal aspects as closely as possible (Snell-Hornby 1990 p 82)

Rather than giving emphasis to the equivalence of linguistic units such as words

or sentences Vermeer began to view translation as a complicated action in a broader

socio-cultural context In his skopos theory translation is a form of human interaction

determined by its ldquoskoposrdquo or purpose Following in the footsteps of Vermeer

Snell-Hornby took a cultural approach abandoning linguistic equivalence as the goal

of translation She held that the translatorrsquos cultural knowledge proficiency and

perception underpinned not only his ability to ldquoproduce the target text but also his

understanding of the source textrdquo (p 42) In other words understanding of the cultural

elements of both the SL and TL was a pre-requisite in translation However she did

not explain how translation could take place between cultures without taking

linguistic equivalence into consideration

The notion of cultural transfer has been given different and even conflicting

interpretations in the literature and the range of empirical facts judged to be relevant

to the study of cultural transfer varies from theory to theory In addition any study of

translation must deal with the language pair in question and translation is always a

verbal representation of the source text In the next chapter we will scrutinize the

notion of cultural transfer and examine the questions at issue

INTRODUCTION 8

13 Legal Translation Theory In Search of Goal and Strategy

In traditional translation theory legal texts were regarded as a species of LSP

text and their translation was accordingly treated as a kind of technical translation In

recent translation theory a change in perspective has occurred along with the

emergence of approaches centered on cultural and communicative factors described in

section 11 The translation of legal texts has increasingly been regarded as a

communicative act no longer a mere operation on the technical linguistic elements to

achieve verbal and grammatical parallelism as well as equivalence in legal meaning

Moreover the translator is no longer considered a passive mediator but rather an

intercultural operator whose choices are increasingly recipient-oriented and based not

only on strictly linguistic criteria but also on extra-linguistic considerationsmdashfirst and

foremost the function of the translated text in the target culture In this section we

will look at studies in legal translation with respect to its goal and strategy

Wilss (1982) observed that at the outset of translation studies it was generally

agreed that the goal of all translation was to achieve equivalence by producing the

closest possible equivalent text In normal practice the legal translator was expected

to produce a strictly literal translation to retain the elements of the original texts The

basic unit of translation was still the word Basic changes in syntax were permitted so

as to respect the grammatical rules of the target language

Approaching legal translation from the perspective of communication Sager

(1997) held that recent translation theory had taken into consideration cultural

differences between the source and target languages as well as the purpose of the

translated text He also noted that the concept of equivalence had been modified to

INTRODUCTION 9

text-type equivalence as opposed to textual equivalence Rejecting the static view of

linguistic equivalence and characterizing translation ldquoas one possible step in a

communication process between two culturesrdquo Sager proposed an approach to

translation based on communication theory with a view to ldquoredefining the relationship

between source and target textrdquo (pp 26 27) The translator was considered as an

information mediator who needed to identify the writerrsquos intention the readerrsquos

expectation the text-type in question and possible ways to reconstruct them In

relation to translation strategy he also pointed out that the traditional concept of

translation which aimed to preserve both content and intention applied only in the

case of translation of a letter or a technical instruction from one language to another

Sagerrsquos communicative approach represents a shift of focus from source text to target

text and frees the legal translator from the rigid grip of linguistic equivalence

However Sager did not explain how the legal translator could reconcile the writerrsquos

intention with the readerrsquos expectations and in what ways the goals of translation of

legal language as a special text-type differed from goals in translating other text-types

Functionalists who focus their attention on the concepts of skopos and

target-orientedness no longer take the source text as the only standard for assessing a

translation Instead translation is now assessed on the basis of its adequacy for the

communicative purpose within the target culture (Vermeer 1984 Nord 1991 1997)

As for the applicability of this approach to legal translation functionalists have

claimed that their theory is comprehensive and applicable to all text-types in all

situations (Vermeer 1982 p 99) But doubts have been raised as to whether the

functional approach could be validly applied to LSP texts and in particular to legal

texts (Trosborg 1997) The main objections are centred on the typical

recipient-orientedness of the functional approach which seems inappropriate for legal

INTRODUCTION 10

language which is governed by rigorous rules of interpretation In response to such

objections Šarčević (1997) argued that legal translation should no longer be regarded

as a process of linguistic trans-coding but an act of communication in the mechanism

of law (p 55) She criticized scholars who focus their attention primarily on language

and the linguistic elements of the text for ignoring the fact that legal translation was

also receiver-oriented and that legal communication could be effective only if

interaction was achieved between text producers and receivers (pp 55-56) She thus

redefined the goal of legal translation as the production of a text with the same

meaning and effect as the original text with special emphasis on effect The translator

should also preserve the unity of a single instrument by striving to produce a text that

would be interpreted and applied by the courts in the same manner as the other

parallel texts of that instrument particularly the original (p 72) In order to achieve

this goal a thorough understanding of the legal cultures in which the translation

ultimately functions is a must as translation problems emerge as a result of different

legal histories and cultures Legal translators could only overcome the problems posed

by different legal cultures with a clear knowledge of the fundamental differences

between legal systems For Šarčević understanding the legal cultures of ST and TT is

vital for legal translation Like functionalists she attaches a great deal of importance

to the communicative function of legal translation However she does not explain

how the legal translator could simultaneously achieve the same meaning and the same

effect as the source text

Taking the view that legal texts form a specific genre with their own unique

linguistic framework and generic knowledge text typology as recently developed has

positive implications for the goal and theoretical methodologies of legal translation

Trosborg (1997) held that distinguishing between political texts legal texts and other

INTRODUCTION 11

text-types was of great significance as they required different translation approaches

Defining genre analysis as ldquothe study of situated linguistic behavior in

institutionalized academic or professional settingsrdquo Bhatia (1997) adopted a

genre-based approach to translation He noted two crucial characteristics of genre

analysis One is that genre analysis is not ldquoan extension of linguistic formalismrdquo in the

sense that it examines the use of language to achieve the communicative purpose

rather than linguistic equivalence The second is that genre theory explores ldquoall

aspects of socio-cognitive knowledge situated in disciplinary cultures in order to

analyze construction interpretation and use of linguistic communication to achieve

non-linguistic goalsrdquo (p 205) Therefore the genre-based approach to legal translation

is by nature a pragmatic study of the use and effect of language within a particular

legal culture For Bhatia the goal of legal translation must include the ldquoaccessibility

of the target text for a specific audiencerdquo and he therefore advocated the method of

easification ldquoa process of making a text-genre more accessible to an intended

readership without sacrificing its generic integrityrdquo (p 209) He held that this

genre-based approach to the teaching and learning of translation had the advantage of

encouraging the learner He remarked

hellip this awareness of participation in the ownership of the genres of legal culture is what Swales

(1990) calls raising rhetorical consciousness in the learner (or translator) (p 212)

Accordingly cultural awareness is a pre-requisite for the legal translator While

Bhatiarsquos approach to legal translation is genre-based his emphasis on legal culture is

similar to Šarčevićrsquos view He also held that the goals of legal translation should

include the readability of the target text

INTRODUCTION 12

We can see from the discussion above that legal translation has been

approached from three different perspectives There has been a shift from producing

the closest possible equivalent text to producing a text with the same meaning and

effect as the other parallel text(s) a shift of focus in translation theory from fidelity to

the source text to the readability of the target text and a shift from the merits of

interlingual equivalence to the demands of cross-cultural communication Awareness

of the differences between the cultures of different legal systems is of paramount

importance in legal translation In the next chapter we will re-examine the goal of

legal translation and show in the light of a clarified notion of cultural transfer that

cultural transfer as domestication is not appropriate for the kind of legal translation

which aims to produce an authentic version of the law

14 Rationale for the Study

The rationale for the present study is twofold Firstly cultural transfer is

arguably the most discussed but least understood concept in recent translation

theory In the absence of a clear notion of what this concept means it is difficult to

arrive at a judicious understanding of the nature of translation Secondly legal

translation in particular legislative translation as carried out in Hong Kong can serve

as an exemplary case study for understanding the multi-faceted problems relating to

the concept of cultural transfer As will be shown cultural transfer in Snell-Hornbyrsquos

sense ie domestication at the cultural level is totally inappropriate for legal

translation The question we have to address is what does ldquocultural transferrdquo mean in

legal translation and how is it effected

INTRODUCTION 13

The translation of the English legislation enacted before 1987 into Chinese in

Hong Kong was clearly a mammoth legal project4 While this was completed before

the handover of the sovereignty of Hong Kong to the Peoplersquos Republic of China on 1

July 1997 a good part of the common law including case law has yet to be translated

or represented in one form or another in Chinese It is hoped that the theoretical

inquiry into cultural transfer in legal translation undertaken by the present thesis can

provide some insights into the future development of bilingual legislation in Hong

Kong

4 English had been the language of the law since Hong Kong became a British colony in 1842 and

remained so until Section 4 of the Official Language Ordinance as amended in 1987 stipulated that

ldquo[a]ll Ordinances shall be enacted and published in both official languagesrdquo The Interpretation and

General Clauses Ordinance as amended in 1987 defined ldquoofficial languagerdquo as ldquothe English language

and the Chinese languagerdquo

Chapter 2

Translation as Cultural Transfer

21 Clarification of the Notion of Cultural Transfer

211 Cultural Transfer vs Transcoding

Despite years of debate translation scholars are still wrestling over whether a

translation should be literal or free In traditional theory literal translation has been

characterized as a word-for-word transmission of a text from one language into

another The adequacy of translation has traditionally been judged on the basis of the

degree of lexical and grammatical correspondence between the source and target

languages Such correspondence is often defined in terms of equivalence Thus

fidelity to the original text is considered the most important principle of translation

and the main task of the translator is to find the best equivalence On the other hand

free translation has been characterized as a sense-for-sense transmission not

constrained by the lexicon or grammar thus giving the translator absolute freedom as

to how to render the source text in the target language Challenging the rigid

dichotomy of word and sense Snell-Hornby (1988) contended that it was rooted in

the ldquoillusion of equivalencerdquo (p 13) and as we have already noted advocated the

notion of cultural transfer as a complete break with the traditional theory She pointed

out that this new orientation had in fact already been put forward by several German

scholars in the 1980s She said

TRANSLATION AS CULTURAL TRANSFER

15

What is dominant in the three new basic approaches recently presented in Germany hellip is the

orientation towards cultural rather than linguistic transfer secondly they view translation not as

a process of transcoding but as an act of communication thirdly they are all oriented towards

the function of the target text (prospective translation) rather than prescriptions of the source text

(retrospective translation) fourthly they view the text as an integral part of the world and not as

an isolated specimen of language These basic similarities are so striking that it is not exaggerated

to talk of a new orientation in translation theory (pp 43-44)

Adopting Vermeerrsquos view that translation is a ldquocross-cultural eventrdquo

Snell-Hornby argued that translation was not simply as ldquoa matter of languagerdquo but a

ldquocross-cultural transferrdquo (p 46) As has been noted in section 11 Vermeer (1996) in

his endeavour to establish skopos theory held that translation was not the

trans-coding of words or sentences from one language to another but a complex form

of action Skopos theory is basically a functional theory and ldquoits concern is the

potential functionality of a target-text (translationtranslatum) under target-culture

(lsquorecipientsrsquo) conditionsrdquo (1996 p 31) Vermeer emphasized that the target culture

constrained the choices available to the translator urging her to pay special heed to

the convention of the target culture and the expectations of the target reader which in

turn pre-determine the function of the translation In refuting the concept of

equivalence he contended

It is not the source-text equivalence (or more loosely correspondence) requirement which

guides the translation procedure but the skopos eg to show target-text recipients how a

source-text iswas structuredrdquo (1996 p 51)


16

One of the main factors in the skopos of a communicative activity is ldquothe (intended)

receiver or addressee with their specific communicative needsrdquo (1996 p 46) He

claimed that skopos theory applied to all translations and the function of the

translation in the target text could differ from that of the source text The same text

could therefore be translated in different ways depending on its function and the

translatorrsquos main task was to produce a new text that satisfies the cultural expectations

of target receivers

As Vermeerrsquos and Snell-Hornbyrsquos proposed new orientation was intended as a

revolt against the prevailing linguistic approach we now need to look back at the

major tenets of this earlier turn

Catford is generally acknowledged to be the founder of the linguistic school in

translation theory In defining translation as ldquothe replacement of textual material in

one language (SL) by equivalent textual material in another language (TL)rdquo (1965 p

20) Catford presupposed the existence of linguistic equivalence between SL and TL

For him textual material was not ldquothe entirety of a SL textrdquo but mainly the ldquogrammar

and lexisrdquo (p 20) He further made a linguistic break-down of SL and TL into what he

called ldquoextentrdquo ldquolevelsrdquo and ldquoranksrdquo employing equivalence as a key concept

throughout (p 21) He said

The central problem of translation practice is that of finding TL translation equivalents A

central task of translation theory is that of defining the nature and conditions of translation

equivalence (p 21)


17

Thus in Catfordrsquos view the central problem and task of translation centre around the

concept of equivalence He further distinguished between ldquotextual equivalencersquordquo and

ldquoformal correspondencerdquo two basic translation equivalences in his theory (p 27)5

Equivalent units in the TL vary in size from the entire text to any portion of the text

having a wider scope than formal correspondence In his view textual equivalence is

represented by the occurrence of a TL textual equivalent for a specific SL item

allowing equivalence-probabilities to be established between the two (p 30)

Thus for Catford establishing equivalence-probabilities is an ideal goal of

translation as these allow translation to be carried out in a manner similar to

mathematics

On the other hand formal correspondence as Catford pointed out is best

exemplified by translation between two languages both of which operate with

ldquogrammatical units at (all) five ranksrdquo (for example English and French)6 While

formal correspondence is harder to achieve as it requires the nearest match between

TL and SL grammatical categories and can only be fulfilled through textual

equivalence Catford maintained that the former is still ldquoan essential basis for the

discussion of problems which are important to translation theory and necessary for its

applicationrdquo in translation practice (pp 32-33) Observing that there are always ldquosome

departures from the formal correspondencerdquo what he called ldquoshiftsrdquo he conceded that

5 The definitions of textual equivalence and formal correspondence are given as follows

A textual equivalence is any TL text or portion of text which is observed on a particular occasion

by methods described below to be the equivalent of a given SL text or portion of text A formal

correspondence on the other hand is any TL category (unit class structure element of structure

etc) which can be said to occupy as nearly as possible the lsquosamersquo place in the lsquoeconomyrsquo of the

TL as the given SL category occupies in the SL (Catford 1965 p27) 6 The five ranks are sentence clause group word morpheme (Catford 1964 p32)


18

formal correspondence can only be approximate in nature He further distinguished

between two major types of ldquoshiftsrdquo level shifts and category shifts In general terms

they are linguistic units in SL which have TL equivalents belonging to a different

linguistic level or category (1965 p 73) Thus Catford was well aware that

ldquotranslation equivalence does not entirely match formal correspondencerdquo That is why

he resorted to textual equivalence (p 82) He was also aware that even textual

equivalence is not always achievable because of two kinds of un-translatability

linguistic and cultural Linguistic un-translatability occurs when there is no lexical or

syntactical substitute in the TL for an SL item whereas cultural un-translatability is

due to the absence in the TL culture of a relevant situational feature for the SL text

We are now in a better position to assess Snell-Hornbyrsquos critique of Catfordrsquos

linguistic theory of translation Her main criticism7 centres around the foundation of

his linguistic approach which seems to her shaky

Catford bases his approach on isolated and even absurdly simplistic sentences of the type

propagated in theory of transformational grammar as well as on isolated words from such

examples he drives ldquotranslation rulesrdquo which fall far short of the complex problems presented by

real-life translation (1988 p 20)

Anyone who has read Catford carefully can see that this criticism is totally

unfounded According to Catford translation textual equivalents are discovered by

two methods namely by consulting the linguistic intuition of competent bilingual

7 Snell-Hornby also dismissed Catfordrsquos definition of textual equivalent as circular (1988 p20) She

is correct on this point as Catford did use the term ldquoequivalentrdquo to define ldquotextual equivalentrdquo (see

footnote 5 above)


19

informants or translators or through a formal procedure of commutation and

observation of concomitant variation the latter being ldquothe ultimate testrdquo (1965 pp

27-28) But Snell-Hornby completely and conveniently ignores the second method

directing her attack solely on the first

Anyone with experience in translation knows all too well the opinions of the most competent

translators can diverge considerably and the hellip [first method] ismdashfor a rigorously scientific

disciplinemdashhopelessly inadequate (1988 p20)

This criticism fails to do justice to Catford He made it very clear that consulting

the linguistic intuition of competent bilingual informants or translators works only for

simple cases but that for complicated cases the formal procedure may be used (p 28)

To illustrate this point let us adapt Catfordrsquos examples Suppose we have the

following sentence pair

1a 我的兒子六歲

1b My son is six

If we change ldquo兒子rdquo of 1a to ldquo女兒rdquo to obtain

1c My daughter is six

then the changed portion of 1b namely ldquodaughterrdquo can be taken to be the equivalent

of the changed portion of 1a namely ldquo女兒rdquo ie ldquodaughterrdquo = ldquo女兒rdquo The method

applies not only to lexical words but also to structural words Consider the following

sentence pair

2a 地上有黃金

2b There is gold on the ground


20

If we change ldquo上rdquo in 2a to ldquo下rdquo to obtain

2c There is gold under the ground

likewise the changed portion of 2b namely ldquounderrdquo can be taken as the equivalent of

the changed portion of 2a namely ldquo下rdquo ie ldquounderrdquo = ldquo下rdquo

Of course the procedure is not always so straightforward Finding a translation

equivalent may involve the very complicated procedure of comparing a great number

of sentence pairs However complicated it can nonetheless be carried out rigorously

and each of its finding subjected to very strict tests

What is most noteworthy about Catfordrsquos second method is that it is an empirical

and probabilistic one Translation equivalence is ldquoan empirical phenomenon

discovered by comparing SL and TL textsrdquo (p 27) Well aware of the fact that

equivalence between an SL item and a TL item is not always a one-to-one

correspondence Catford assigned a probability value to each equivalent pair ranging

from 0 (zero equivalent) to 1 (one-to-one) The following is Catfordrsquos own example

[I]n a French short story of about 12000 words the preposition dans occurs 134 times The

textual equivalent of this in an English translation is in in 98 occurrences into in 26 from in 2

and about and inside in one occurrence each there are six occurrences of dans where the

equivalent is either nil or not an English preposition hellip In terms of probabilities we can state the

translation equivalences as follows dans = in 73 dans = into 19 dans = from 015 dans =

aboutinside 0075 This means that if you select any occurrence of dans at random in this text

the probability that its translation equivalent on that occasion is in is 73 the probability that it is

into is 19 etc (1965 p 30)


21

Catford further distinguished between two types of probability value namely

unconditioned probabilities and conditioned probabilities the latter being values

affected by contextual and co-textual factors (pp 31-32) He went on to make the

following remark

Provided the sample is big enough translation-equivalence-probabilities may be generalized to

form lsquotranslation rulesrsquo applicable to other texts and perhaps to the lsquolanguage as a wholersquomdashor

more strictly to all texts within the same variety of the language (p 31)

Thus nothing is further from the truth than accusing Catford of deriving

translation rules from ldquoabsurdly simplistic sentencesrdquo as alleged by Snell-Hornby

Quite on the contrary for Catford they are derived from a big enough samplemdash a big

enough corpus in contemporary linguistic terminology More crucially his approach

is in all important respects the same as the corpus-based approach in translation

studies today which aims to extract translation rules from a huge parallel corpus of

translated texts Catford can thus properly be said to be the pioneer of the

corpus-based approach in translation studies

Three further points must be made about Catfordrsquos linguistic approach

particularly since it has been so unfairly and widely criticized even to the extent of

making it something of a dead horse in translation studies today

First Catfordrsquos linguistic approach is by no means built on the ldquoillusion of

equivalencerdquo For he expressly states that ldquothe SL and TL items rarely have lsquothe same

meaningrsquo in the linguistic senserdquo (p 49) ldquosince every language is formally sui generis

and formal correspondence is at best a rough approximationrdquo (p 36) Translation


22

equivalence is therefore not based on sameness in meaning but on functional

interchangeability in the same context (p 49) Put briefly a TL sentence T is a

translation equivalent of an SL sentence S if T and S have overlapping meanings

relevant to the context in question (pp 37-39) such that T ldquocan function in the same

situationrdquo as S (p 49)8 Accordingly the aim of translation is Catford argued to

select TL equivalents ldquonot with the same meaning as the SL items but with the

greatest possible overlap of situational rangerdquo (p 49) Catfordrsquos ldquotranslation

equivalentrdquo looks very much the same as Nidarsquos ldquoclosest natural equivalentrdquo but it

differs from the latter in one crucial aspect in that it is invariably context-dependent

whereas the latter can be context-free

Another equally important point about Catfordrsquos linguistic approach can best

been seen from the following passages

hellip[A] manifestation of the lsquosame meaningrsquo or lsquomeaning-transferencersquo fallacy is seen in the view

that translation is a lsquotranscodingrsquo process a well-known example being Weaverrsquos remark

lsquoWhen I look at an article in Russian I say ldquoThis is really written in English but it has been

coded in some strange symbols I will now proceed to decoderdquo

This implies either that there is a one-to-one relationship between English and Russian

grammaticallexical items and their contextual meanings or that there is some pre-existent

lsquomessagersquo with an independent meaning of its own which can be presented or expounded now in

one lsquocodersquo (Russian) now in another lsquocodersquo (English) But this is to ignore the fact that each

8 While Catford explained this point in great detail in Chapter 5 Meaning and Total Translation we

cannot elaborate on it here


23

lsquocodersquo (ie each language carries with it its own particular meaning since meaning hellip is lsquoa

property of languagersquohellip

hellip

Our objection to lsquotranscodingrsquo or lsquotransference of meaningrsquo is not a mere terminological quibble

There are two reasons why translation theory cannot operate with the lsquotransference of meaningrsquo

idea In the first place it is a misrepresentation of the process and consequently renders the

discussion of the conditions of translation equivalence difficult in the second place it conceals

the fact that a useful distinction can be made between translation and another process which we

call transference In transference hellip there is indeed transference of meaning but this is not

translation in the usual sense (pp 41-42)

Meaning does not get transferred in translation and translation is not a process of

transcoding This comes out loud and clear in Catford Translation for him is not a

process of code-switching according to rigid mechanical rules based on one-to-one

formal correspondence between SL and TL items as Nord has alleged (1997 p 7)

nor is it a process of transcoding of pre-existent naked meaning So the Catford that

Snell-Hornby and many others have attacked turns out to be not merely a straw man

but ironically also a comrade in arms

A third important point to note about Catfordrsquos linguistic approach is that it is by

no means incompatible with the so-called cultural approach As has been shown

Catfordrsquos approach is an empirical and probabilistic one Its aim is twofold first to

find TL equivalents (in his sense) by way of comparing actual samples of SL and TL

texts with the resultant TL equivalents serving as translation rules and second to set

out the conditions for justifying TL equivalence Unlike Snell-Hornby and many other

theorists Catford never told us how to translate So in this sense his linguistic


24

approach can be said to be theory-free He only told us how to find translation

equivalents which is exactly what corpus linguists do nowadays A corpus might

contain TL texts produced in the light of different or even conflicting theories but

Catfordrsquos approach would still be applicable Accordingly the cultural approach

advocated by Snell-Hornby and others of a similar persuasion is not really a rival

approach and hence there is not much sense in talking about an emancipation from

the linguistic theory of translation that Catford represents

212 Vermeerrsquos View of Translation as Cross-cultural Transfer

The tenets of the cultural school as represented by Vermeer and Snell-Hornby

can be reduced to three statements

1 Translation is not simply a matter of language and it does not take place

merely between languages

2 Language is an integral part of culture and hence translation from one

language to another is a cross-cultural transfer and

3 The source text in itself does not dictate how it is to be translated what

dictates the translation is the specific purpose in question

This counters the lay view of translation described well enough by Snell-Hornby

as follows

hellip translation is simply a matter of words or individual linguistic signs which are replaced by

equivalent words signs or units in the target language The translator so it is assumed therefore


25

needs either simply a good command of the vocabulary in both languages involved or a good

dictionary (1992 p 2)

Such a naive static and mechanical view is as Snell-Hornby endeavoured to show

rooted in the false belief in the existence of equivalence between languages ie a

one-to-one correspondence between SL and TL items Yet her critique of such a

notion was directed not so much against lay people as against Catford and other

descriptivists such as Toury and Koller But it is really hard to see how such a view

of translation could be attributed to Catford who expressly dismissed it as fallacious

We do not want to labour this point but let us just say this Vermeer and

Snell-Hornbyrsquos vehement opposition to the linguistic approach is totally misguided

In place of the false dichotomy of word vs sense they have ushered in the false

dichotomy of transcoding vs cultural transfer As has already been shown by Catford

there is no such a thing as transcoding What then is cultural transfer

Vermeer answered the question with a metaphor

What does it mean to translate hellip Suppose you take a tree from a tropical climate to a temperate

zone Will it not need special care Will it not be considered something out of the ordinary by

whoever sees it It will never be the same as before neither in growth or in the eyes of its

observers hellip With a translation it is not much different One will have to decide before

translating whether it is to be ldquoadaptedrdquo (to a certain extent) ie ldquoassimilatedrdquo to target culture

conditions or whether it is meant to display and perhaps even stress its ldquoforeignrdquo aspect One

will have to make a choice In both cases the text will be ldquodifferentrdquo from what it was in its

ldquonormalrdquo source-culture conditions and its ldquoeffectrdquo will be different Assimilation does not

necessarily mean making a text look like an ordinary target-culture text(eme) ie making it look


26

ldquoas though it were not translationrdquo Assimilation need not take place on the ldquosurfacerdquo level

alone paradoxically enough assimilation on other levels can lead to an ldquoalienationrdquo

(Verfremdung) on the surface level (1995 p 39)

Translation is likened to the transplant of a tree onto foreign soil for a specific

purpose The translated text (the transplanted tree) has been adapted or assimilated to

a culture (foreign soil) different from the original (home soil) One important point to

note here is assimilation can take place on different levels the target text is not

necessarily a completely domesticated textmdashit may indeed turn out to be alien to the

target culture This is a point which has been overlooked or suppressed by Vermeerrsquos

followers who have identified Vermeerrsquos functional approach with domestication

Since the notion of skopos is an all-embracing one it is in principle able to

accommodate all kinds of approach to translation

hellip skopos theory hellip allows for transferring (or demands the transfer of) as many features of the

source-text surface-structure as possible into target culture surface-structure features in such a

way that target-culture addressees can appreciate the literariness of the translation in a way

comparablesimilarcorresponding to source-culture addressees who are able to appreciate their

source-text (1995 p 50)

[Note in the original The term ldquotransferrdquo is not strictly applicable Nothing is physically

transferred]

The passage is worth noting in two important respects The original footnote clearly

shows that Vermeer was not comfortable with the word ldquotransferrdquo It would be

interesting to see what word he would or could have used in its place ldquoTranscodingrdquo

would have definitely been ruled out as by it he meant translation which takes place


27

merely between languages guided by the principle of equivalence This is not a trivial

observation For ldquotranslation as cultural transferrdquo was used by him to mark a new

orientation in translation studies So it is legitimate to press the question of what he

meant by ldquocultural transferrdquo The tree transplanting metaphor cited above suggests

that in translation a text is transferred from one culture to another with the two

cultures in question remaining unchanged This is in line with the definition Vermeer

gave in his seminal paper entitled ldquoTranslation as a cultural transferrdquo (1986) However

the passage just cited implies that transcoding in the sense that purely linguistic

features of the source text are ldquocarried over tordquo9 or reproduced in the target text can

be one possible purpose of translation This seems to defeat the whole purpose of

skopos theory which asserts that ldquotranslation is not the transcoding of words or

sentences from one language to anotherrdquo (1986 p 33) A closer look at his remarks

on the ldquoequivalence postulaterdquo of Touryrsquos theory will reveal something even more

devastating for skopos theory however

hellip there is a methodological difference between Touryrsquos approach and that of skopos theory

According to the latter a lsquotransferrsquo (by any strategy) of a great number of source-text phenomena

to a target-text still depends on the skopos (purpose) of translating It is not the source-text

equivalence (or more loosely correspondence) requirement which guides the translation

procedure but the skopos eg to show target-text recipients how a source-text iswas structured

(or for some other purpose hellip) The skopos is hierarchically higher than the equivalence postulate

Such a procedure is then not retrospective (as is the case when taking the source-text structure as

the highest element in the hierarchy) but prospective in the sense that the skopos demands a full

consideration of source-text structures for a given purpose In such a case the difference between

9 ldquoCarry overrdquo was also used by Vermeer as a synonym of ldquotransferrdquo (1990 p 50)


28

Touryrsquos approach and that of skopos theory is one of focus in practice the result may look much

the same (Ibid p 51 Italics mine)

The passage clearly shows that Vermeer was in fact not really against the equivalence

postulate or transcoding as he expressly stated that the difference between Touryrsquos

approach and his is ldquoone of focusrdquo ie Touryrsquos focus is on the source-text

(retrospective) whereas his is on the target-text (prospective) and that both

approaches may lead to much the same target text We can thus see that the kind of

transcoding he deplored was in the final analysis transcoding without a purpose

whereas he saw transcoding with a purpose as both possible and legitimate His

opposition to the linguistic approach turns out to have been overstated

The fundamental principle of skopos theory according to Vermeer is that it

ldquostrictly regards translating from the point of view of a text functioning in a

target-culture for target-culture addressesrdquo (1990 p 50) Translation as cultural

transfer is therefore translating a text from one culture to another according to a

specific function What is transferred (understood in a figurative sense) is the text not

the culture of the text But here Vermeer simply failed to see there are situations

where ldquocultural transferrdquo means ldquothe transfer of one culture to anotherrdquo and

legislative translation is a typical case of cultural transfer in this sense

213 Snell-Hornbyrsquos View of Translation as Cultural Transfer

In line with the central arguments of the new theoretical orientation which I

have just discussed Snell-Hornby held that translation was a cultural transfer rather


29

than a linguistic transfer and that translation as a cultural transfer was oriented

towards the function of the target culture and also facilitated cross-cultural

communication To illustrate this point Snell-Hornby (1998 pp 94-5) cited her own

experience in India When walking along the streets of Southern India about twenty

years earlier she was repeatedly approached by local people who asked her a question

in their native language which literally means ldquoWhere are you goingrdquo in English She

was obviously puzzled by this strange question Later she found out that it was a local

form of greeting when people met in the street A mere transcoding would yield

ldquoWhere are you goingrdquo which in her view was problematic because it was likely to

cause a communication break-down She pointed out how this showed the limitations

of mere transcoding by neglecting the twin facts that language was dependent on

cultural and social norms and that translation was essentially a cross-cultural event

Instead an appropriate translation would be ldquoHow are yourdquo as it complied with the

conventions of greeting in English and thus effected a cultural transfer

The starting point of Snell-Hornbys framework is reasonable in the sense that

the pursuit of absolute equivalence or symmetry between languages is futile and it is

doubtless the case that cultural elements must been taken into account when doing

translation If her thoughts on the incident lead her merely to the above conclusion

her argument about the cultural account in translation would be sound However in

analyzing the appropriate translation for the Indian way of greeting she distinguished

two translation methods one is the mere transcoding and the other is what she called

ldquocultural transferrdquo In her view linguistic transcoding and cultural transfer are

apparently two distinct methods of translation Linguistic transcoding is reduced to

linguistic transference without any cultural account By contrast cultural transfer

indicates the rendering of source text smoothly and idiomatically such that the English


30

speaking reader would perceive the translation as conventional and familiar Thus the

important units of translation are seen as products of culture that emerges from their

distinctive social settings instead of strings of words or sentences or even whole texts

According to Snell-Hornby translation should be oriented towards the function of the

target text rather than submit to the prescription of the source text She remarked

The text cannot be considered as a static specimen of language (an idea still dominant in

practical translation classes) but essentially as the verbalized expression of an authorrsquos intention

as understood by the translator as reader who then recreates this whole for another readership in

another culture This dynamic process explains why hellip the perfect translation does not exist

(1988 pp 1-2)

We shall see from the above that in proposing the translator ldquorecreates this whole

for another readership in another culturerdquo Snell-Hornby holds that translation as

ldquocultural transferrdquo should conform to the cultural norms of the target language and

familiarize the source culture to the extent that target readers could identify it with

their own culture As has been shown the term ldquocultural transferrdquo is used by

Snell-Hornby as the antithesis to ldquolinguistic transcodingrdquo It is clear what she means

by ldquolinguistic transcodingrdquo a naiumlve simplistic static and mechanical manner of

translation which consists in matching SL and TL words solely by relying on a

bilingual dictionary a view of translation rooted in the false belief in the existence of

equivalence (a one-to-one correspondence) between languages However it is by no

means so clear what she means by ldquocultural transferrdquo particularly what she means by

ldquotransferrdquo ie what gets transferred in translation


31

She regularly stresses two points in her work First language is an integral part

of culture and also of the world Understanding a text requires an understanding of its

socio-cultural context and this applies to both the source text and the target text

Second translation is an act of communication oriented towards the function of the

target text not a mere linguistic operation prescribed by the source text These two

points seem clear enough but again what gets transferred in translation is not at all

clear

Her discussion of the translation approach of Hans G Houmlnig and Paul Kussmaul

(in Snell-Hornby 1988 pp 45-46 1990 pp 83-84) which she endorsed gives us

some idea of what she means

Houmlnig and Kussmaulrsquos starting point is the conception of the text as what they call lsquothe

verbalized part of a socio-culture (1982 58) the text is imbedded in a given situation which is

itself conditioned by its sociocultural background The translation is then dependent on its

function as a text lsquoimplantedrsquo in the target culture The basic criterion for assessing the quality of

a translation is called the lsquonecessary grade of differentiationrsquo which represents lsquothe point of

intersection between target text function and socio-cultural determinantsrsquo (1982 53)

To illustrate this they quote two sentences each naming a famous British public

school

In Parliament he fought for equality but he sent his son to Winchester

When his father died his mother couldnrsquot afford to send him to Eton any more

They then quote two extreme types of German translation


32

hellipseinen eigenen Sohn schickte er auf die Schule in Winchester

hellipkonnte es sich seine Mutter nicht mehr leisten ihn nach Eton zu schicken jene teure englische

Privatschule aus deren Absolventen auch heute noch ein Grossteil des politischen und

wirtschaftlichen Fuhrungsnachwuchses hervotgecht10

The first translation is under-differentiated the mere name ldquoWinchesterrdquo does not

carry the same meaning for a German reader as for an English one The second is

over-differentiated however correct the information on British public schools may be

it is superfluous to the text concerned In the first of the two sentences it is the

double-faced hypocrisy of the father (hence the exclusive elitist character of public

schools) that is stressed while the second focuses on an impoverished widowed

mother (and the expensive school fees) As the necessary grade of differentiation for

the texts in question the authors therefore suggest

Im Parlament kampfte er fur die Chancengleichheit aber seinen eigenen Sohn schickte er auf

eine der englischen Elisteschulten [elite schools]

Als sein Vater starb konnte seine Mutter es sich nicht mehr leisten ihn auf eine der teuren

Privatschulen [private schools] zu schicken (1990 pp 83-84)

Here Snell-Hornby agrees with Houmlnig and Kussmaulrsquos approach which rejects

the orthodox demand to preserve as much of the original as possible so as to achieve

equivalence in translation Preserving ldquoWinchesterrdquo in the German translation is an

under-translation because for German readers the name ldquoWinchesterrdquo would just be

10 Snell-Hornbyrsquos translation ldquohellipthat expensive English public school which even today produces

many of the future leaders in politics and managementrdquo


33

the name of a city perhaps even unable to call up the notion of there being a school

there let alone Winchester College the oldest public school in England On the other

hand filling in too much background information is an over-translation distracting

readers from the impoverished condition of the widowed mother The suggested

translations in which ldquoWinchesterrdquo is translated as ldquoone of the elite schools and

ldquoEtonrdquo as ldquoone of the expensive private schoolsrdquo give as much information as

necessary for the functions of the two English sentences to allow German readers to

understand the socio-cultural meaning of ldquoWinchesterrdquo and ldquoEtonrdquo So we are not

translating ldquowordsrdquo but ldquowords-in-textrdquo (1988 p 45) What gets transferred in

translation should be the socio-cultural meaning of words not their surface meaning

of words

In a paper entitled ldquoTranslation as a Cultural Shock Diagnosis and Therapyrdquo

(1992) Snell-Hornby describes how erroneous mechanical matching of equivalents

in translation can give rise to interlingual miscommunication and cultural shock An

amusing example reads

Nice German business man 36 wants to become a black woman Every letter will be answered

(p 2)

The shock obviously unintended is due to matching the German ldquobekommenrdquo (=

getfind) to the English ldquobecomerdquo Examples like this abound11

11 The English translation of a sign in China reads ldquoCarefully fall into the riverrdquo The Chinese

original reads ldquo小心堕河rdquo


34

On the syntactic level following the conventions of the source text would give

rise to stiltedness in the target text Very often equivalent syntactic forms are not

acceptable in the target language (1990 pp 6-7) The following are English

translations of a hotel advertisement in German The one on the left is the original

translation which stays close to German syntax and the one on the right is a rewriting

according to English advertising conventions

To enjoy Viennarsquos unique atmosphere Come and enjoy the unique

atmosphere

In one of the cityrsquos guesthouses of Viennamdashand stay in one of

the cityrsquos finest Pensionen

University City hall Parliament A few minutesrsquo walk from the

University

Burgtheatre and Vortivkirche City Hall Burgtheatre and

Vortivkirche

In the immediate vicinity

hellip hellip

The upshot of her discussion is this ldquoTranslation is not a merely a matter of

language but primarily one of knowledge of which language forms only a partrdquo (p

7) And translation should free itself from the inexorable grip of words and avoid

inflicting cultural shocks by conforming to the linguistic and cultural norms of the

target language Let us return for a moment to the questions arising from the two

approaches to translating the Indian greeting examined by Snell-Hornby namely

linguistic transcoding and cultural transfer For her the way to effect cultural transfer

is to match the original Indian greetings to an idiomatic expression in English In this


35

way the translation actually functions the same way as the original does but may fail

to preserve the original patterns and to reflect the real meaning expressed in the

original text In other words the cultural transfer that Snell-Hornby advocates

involves conformity with the conventions of the target culture In addition

Snell-Hornby only recognizes the importance of the source culture in the

understanding of source text Instead she places great emphasis on the target culture

since she holds that the translator should be oriented towards the target culture

producing translation that is representative of the culture of target language instead of

the culture of the source language Evidently translation as cultural transfer in this

sense involves inadequate transference of the source culture Cultural transfer is in the

final analysis ldquocommunication across culturesrdquo (p 7) very similar to what Newmark

called ldquocommunicative translationrdquo

214 Domestication vs Foreignization

In maintaining translation as cultural transfer Snell-Hornby is in fact adopting a

target-culture-oriented position For her the source culture is important only for

understanding the source text but the target culture in fact plays a far more vital role

since it shapes the target text which is what actually facilitates cross-cultural

communication Thus viewed translation as cultural transfer is in effect

cross-linguistic communication at the cultural level a mapping of the source culture

onto the target culture in other words a functional assimilation of the source culture

into the target culture


36

As is well known such an approach is contrary to the one advocated by

Schleiermacher For him there are only two options for the ldquotruerdquo translator Either to

move the reader towards the writer or to move the author towards the writer

(Robinson 1997 p229) He opted for the first remarking

To achieve this the translator must adopt an lsquoalienatingrsquo (as opposed to lsquonaturalizingrsquo) method

of translation orienting himself or herself by the language and content of the ST He or she must

valorize the foreign and transfer that into the TL (quoted in Munday 2001 p 28)

Adopting Schliermacherrsquos categorization of these two translation strategies

namely ldquoalienatingrdquo and ldquonaturalizingrdquo Venuti (1992) argues that the former strategy

could exert a positive influence on the target culture while the latter might inhibit

innovation on the part of the target language and culture Having examined past

examples of the decisive role of domestication in forming certain foreign cultural

identities in the target culture he had come to realize that translators had tended to

achieve the goal of communication by naturalizing foreign texts in order to conform

to domestic conventions However the domestication of a foreign culture could result

in misrepresentations of that culture Worse still it could paralyze the ability and

willingness of the target reader to accepting new elements from a foreign culture

Venuti came to the conclusion that although translation is bound to be domestication

to some degree foreignization ldquopromises a greater openness to cultural differencesrdquo

(p 23) Like Schliermacher he subscribed to foreignization which he believed was

the proper way to effect the transfer of the source culture as it allowed the target

language to be influenced and amplified by the source language and open the way to

novelty and innovation in the target language Thus translation as ldquocultural transferrdquo

leaves a choice open to each individual translator Either she chooses foreignization


37

preserving the alien elements in the target text or she chooses domestication ironing

these out to make the target text readily comprehensible to the reader The choice in

practice depends on the particular skopos that the translator intends

It is crucially important to understand the opposed notions of ldquodomesticationrdquo

and ldquoforeignizationrdquo very clearly if we wish to understand precisely what is involved

in effecting cultural transfer Whether a translation exhibits domestication or

foreignization can only be determined where the context reveals cultural asymmetry

and is examined as such12 In other words it is only when directly confronted with the

problem of translating a culture-specific item that the translator has to make a choice

between the two strategies A common misunderstanding is that the translator is

always engaged in make such a choice even when translating items that are not

culture-specific Consider the translation of the two English terms ldquoInternetrdquo and

ldquoSarsrdquo into Chinese For each term we can have at least two translations yinte wang

(英特網) and hulian wang (互聯網) for ldquoInternetrdquo shashi (沙士) and fei dianxing

xing feiyan (非典型肺炎) for ldquoSarsrdquo It is interesting to note that the linguistic

formation of the translated terms yinte wang (英特網) and shashi (沙士) may seem

ldquoforeignrdquo to the Chinese reader and hence are considered as ldquoforeignizedrdquo terms

However both ldquoInternetrdquo and ldquoSarsrdquo are terms which represent non-culture-specific

concepts ldquoyinte wang (英特網) and shashi (沙士) differ from hulian wang (互聯網)

and fei dianxing xing feiyan (非典型肺炎) only in that they are transliterations rather

12 In an attempt to define translation strategy Kwiecinski (2001) provided a rather comprehensive

definitionldquohellip translation strategy hellip may be definedhellipas a textually manifest norm-governed

intersubjectively verifiable global choice of the degree in which to subscribe to source-culture or

target-culture concepts norms and conventionrdquo (p 120) Despite the complicated modification of the

word ldquochoicerdquo one thing we could see clearly is that translation strategy always involves a choice in

relation to culture-specific elements


38

than semantic translations a difference solely in translation technique The question

of whether this is foreignization simply does not arise here Likewise hulian wang

(互聯網) and fei dianxing xing feiyan (非典型肺炎) though readily comprehensible

in their linguistic form are not cases of domestication because no foreign culture is

involved here Put differently whether a translation is a case of domestication or

foreignization cannot be determined by the naturalness or foreignness of its linguistic

form alone

So what do we actually do as translators when we come across culture-specific

items If we choose to domesticate we just need to find an item in the target language

as a linguistic substitute leaving the target language as it is For example translating

the English idiom ldquothere is no smoke without firerdquo into wufeng buqi lang (無風不起

浪) (no waves without wind) actually replaces the English idiom with a similar one in

Chinese both mean that there must be a reason for the result No linguistic and

conceptual adjustment on the part of the target language is required Any peculiarity

in this way of expressing causality in English is no longer discernible in the

translation ie the cultural meaning of the source language has been domesticated or

naturalized

In contrast to foreignize means to import the source culture into the target

culture This can be achieved in two ways One is to foreignize at both the linguistic

and conceptual levels ie calling on the target language to make both linguistic and

conceptual adjustments Take the example of the English translation of the Chinese

term li (禮) one of the key concepts in Confucianism When it is translated as li (禮)

using the technique of transliteration (direct borrowing) it evidently introduces to the

target reader a new linguistic form Adjustment also needs to be made on the


39

conceptual level so that the English reader can understand the cultural meaning of the

coined English term li in the light of Confucianism The other way is to foreignize

only at the conceptual level ie without involving any linguistic adjustment In the

same example when li (禮) is translated as ldquomoralityrdquo ldquoproprietyrdquo or ldquoritualrdquo the

translator uses an existing English word as its equivalent However when the

translator makes it clear to the English reader that ldquomoralityrdquo ldquoproprietyrdquo or ldquoritualrdquo

should not be understood in their usual senses in English but should be re-defined and

understood with reference to Confucianism an intention to foreignize is revealed We

can see that in either case conceptual adjustment is a must while linguistic adjustment

is not really essential However there are as will be shown cases when where a

particular linguistic structure in the source text may embody the culture of the source

language In such cases the translator has to preserve the linguistic features of the

source text and linguistic and conceptual adjustments of the target language are

required In a nutshell cultural transfer as foreignization requires the translator to

import the culture-specific elements into the target culture regardless of whether the

foreignness is reflected in the linguistic form of their translations The discussion

above only serves as a simplified model for discussing the theoretical framework of

effecting cultural transfer we will introduce It will be elaborated further in the next

section

It is now clear that ldquocultural transferrdquo when employed to characterize translation

as a socio-cultural activity rather than a mere act of linguistic recoding has in fact

been understood in two diametrically opposite senses On the one hand it has been

taken to mean the mapping of the cultural elements of the source text onto their

functional equivalents in the culture of the target text an approach which aims to

facilitate cross-cultural communication without making any linguistic or conceptual


40

adjustment on the part of the target text by way of domestication On the other hand

the term ldquocultural transferrdquo has also been taken to mean the importation of the source

culture into the target culture an approach which requires linguistic and conceptual

adjustments on the part of the target language

22 Legal Translation as Cultural Transfer

221 Legal Transplant and Legal Translation

The tree transplanting metaphor that Vermeer uses to illuminate translation

studies has a close counterpart in studies of comparative law namely legal transplant

which according to Alan Watson (1974 p 21) is ldquothe moving of a rule or a system

of law from one country to another or from one people to anotherrdquo And interestingly

enough just as there is a perennial debate in translation studies over the translatability

of law there is one in comparative law over the transplantability or transferability of

law

Legrand a strong opponent of the whole idea of legal transplant contends that

the word ldquotransplantrdquo itself already implies its impossibility

To ldquotransplantrdquo according to the Oxford English Dictionary is ldquoto remove and repositionrdquo ldquoto

convey or remove elsewhererdquo ldquoto transport to another country or place of residencerdquo

ldquoTransplantrdquo then implies displacement For the lawyerrsquos purposes the transfer is one that

occurs across jurisdictions there is something in a given jurisdiction that is not native to it and

that has been brought there from elsewhere What then is being displaced (1997 p 111)


41

For Legrand law is not simply ldquobare propositional statementsrdquo which can travel

across jurisdictions and can be understood without regard to ldquohistorical factors and

habits of thoughtsrdquo (Ibid p 113) Instead propositional statements work together with

their invested meaning to jointly constitute ldquorulesrdquo (Ibid pp 116-17) But because a

legal rule is culture-specific it is bound to be understood differently when integrated

into another legal system (Ibid p 117) Thus ldquoas the understanding of a rule changes

the meaning of the rule changes And as the meaning of the rule changes the rule

itself changesrdquo (Ibid p 117) Legrand remarks

In the words of Eva Hoffman lsquo[i]n order to transport a single word without distortion one would

have to transport the entire language around itrsquo13 Indeed lsquo[i]n order to translate a language or

a text without changing its meaning one would have to transport its audience as wellrsquo14 hellip

So the transplant does not in effect happen a key feature of the rulemdashits meaningmdashstays

behind so that the rule that was lsquotherersquo in effect is not itself displaced over lsquoherersquo hellip Meaning

simply does not lend itself to transplantation There always remains an irreducible element of

autochthony constraining the epistemological receptivity to the incorporation of a rule from

another jurisdiction15 therefore limiting the possibility of effective legal transplantation itself

The borrowed form of words thus rapidly finds itself indigenized on account of the host culturersquos

inherent integrative capacity (Ibid p 118)

hellip

[So] [a]t best what can be displaced from one jurisdiction to another is literally a meaningless

form of words To claim more is to claim too much In any meaning-ful sense of the term lsquolegal

transplantrsquo therefore cannot happen No rule in the borrowing jurisdiction can have any 13 Original note 16 Eva Hoffman Lost in Translation (Minerva 1991) at 175 14 Original note 17 Ibid at 272 15 Original note23 Eg FSC Northrop lsquoThe Comparative Philosophy of Lawrsquo 45 Cornell Law Quarterly (1960) 617 at 657 lsquoin introducing foreign legal and political norms into any society those norms will become effective and take root only if they incorporate also a part at least of the norms and philosophy of the native societyrsquo


42

significance as regards the rule in the jurisdiction from which it is borrowed This is because as it

crosses boundaries the original rule necessarily undergoes a change that affects it qua rule The

disjunction between the bare propositional statement and its meaning thus prevents the

displacement of the rule itself (Ibid p 120)

Legrandrsquos argument is simply this Anything culture-specific cannot be transplanted

from one culture to another without change Law as underpinned by its rules is

culture-specific Therefore law cannot be transplanted from culture jurisdiction to

another without change The impossibility of legal transplant also entails the

untranslatability of law A text of law when translated from one culture jurisdiction

to another will no longer preserve the meaning of the original text ie it is not the

text of the same law just as in Vermeerrsquos botanical metaphor the text was not be the

same as before16

In response to Legrandrsquos criticism Watson (2006) makes two points which are

relevant to the present study and worth discussing at some length First taken to the

extreme no word means exactly the same even for people who speak the same

language in the same country ldquoBreadrdquo for a poor village housewife does not have the

same meaning as for the wealthy Parisian businessmen (p 2) The same is true for law

within the same country Watson gives the following example

16 In an attempt to avoid the difficulties inherent in the transplant metaphor Langer (2004 pp 32-35)

used translation as a metaphor to explain the circulation of legal ideas rules practice and institutions

First it retains the comparative dimension as it distinguishes between the source text and the target text

of the law Secondly it can explain the loss of meaning Thirdly it can explain the transformation

which the source legal system undergoes as a result of its exchange with the target legal system

Finally it can explain ldquothe transformation which the linguistic and social practices of the target legal

system undergo under the influence of the translated text While these are valid points they cannot

resolve the transplantability problem because the translatability of law is the question at issue here


43

The possession of cocaine is hellip illegal That means one thing to the petty dealer who sees it as

his sole hope of escaping from his ghetto quite another to the recreational user quite another to

non criminals who live in the same street as the gangs quite another to law enforcement officers

It is banal to notice that the same legal rule operates differently in two countries it operates to

different effect even within one (p 2)

The point he makes here is a valid one Since we cannot say that a legal rule always

remains the ldquosamerdquo within a single jurisdiction we are even less entitled to speak of

its remaining the it is ldquosamerdquo transplanted from one jurisdiction to another

Secondly legal transplant does not preclude different interpretations of the

transplanted law Watson remarks

hellip where a written statutory law is the same within two countries its judicial interpretation may

well differ because of tradition and ways of legal thinking hellip But it is no rare thing for

academics to notice and pass on to practitioners the nature of these differences The very fact

that the statutory rule is the same may well cause legal thinking on it in different countries to

converge

I think I have no need to stress that I have long held that a transplanted rule is not the same

thing as it was in its previous home17 Nor need I stress my long-held view that it is rulesmdashnot

just statutory rulesmdashinstitutions legal concepts and structures that are borrowed not the lsquospiritrsquo

of a legal system Rules institutions concepts and structures might almost be termed tangibles

can easily be reduced to writing and are accessible (pp 2-3)

17Original note 4 See most recently Alan Watson La Out of Context Athens GA 2000 p 1


44

Watson then goes on to cite from legal history examples of legal transplants on a

grand scale (pp 4-8) which we need not consider for our present purpose The point

that needs stressing is that even though the transplanted law is likely to be given a

different interpretation recognition of the difference may still lead to convergence

Law is of course culture-specific Yet a good part of it is embodied in language It is

through translation that the law of a country is made accessible to other cultures And

as history has shown translation has been a major channel of cultural transfer

However there are many who while conceding that the aspects of law

mentioned by Watson are transplantable through translation the cultural significance

of law is not For instance Hiller contended

During the colonial period language from a British statute was imported into many of its

colonies18 whereby it was a crime for any person ldquobeing armed and having his face

blackened hellip (to) appear in any forest hellip or in any high roadrdquo under a wide variety of stated

circumstances The offence was ostensibly designed to deal with poachers and similar

wrongdoers Arming andor blackening onersquos face was enough to constitute a capital crime in

Britain19 The obvious cultural significance would have been lost in translation The language

would have been rather absurd in an African or Asian setting (1978 pp 157-58)

18 Original note 16 For example the Nigerian Criminal Code Cap 43 sec 417 (e) makes it a felony

for a person to have ldquohis face blackened with intent to commit a felonyrdquo Similarly see Kenya

Penal Code Cap 63 Sec 308 (3) (a) and Uganda Penal Code Cap 106 Sec 285 (1) (e) 19 Original note 17 George I c 22 (emphasis added) The statute enacted in 1713 became known as

ldquoThe Waltham Black Actrdquo simply as ldquoThe Black Actrdquo For a fascinating discussion of the Act see E

P Thompson Whigs and Hunters The Origin of the Black Act New York Pantheon Books 1975)

The Act is reproduced in full in Appendix I of the book


45

But what Hiller failed to see here is it is not the language that is absurd it is the

law (the ldquoBlack Actrdquo as it is called) When translated into an African or Asian

language the legal meaning of that law is not lostmdashthe person who understands its

translated version knows exactly what it prohibits but finds it absurd as he lives in a

country where hunting is a main source of food Indeed he does not understand why

there is such a law in his country If he is educated enough he may find out the reason

from a book on the history of English law Yet he may still not understand why such a

law is imposed on his people There may be a whole lot of whyrsquos he asks But one

thing he understands is If he does not want to get into trouble with the law he must

not blacken his face and appear in a forest or on a highway with a weapon If the

translation makes him understand that it has done what it is supposed to do

The Black Act was of course culture-specific enacted to address a particular

problem in England But this historical fact does not in any way render it

untranslatable into an African or Asian language Suppose its Chinese translation

reads ldquo任何人不得塗黑臉孔攜帶武器出現在樹林中或公路上rdquo The translation

says what the Act says The ldquocultural significancerdquo which Hiller did not see in the

translationmdashlost in the translationmdashis not part of what the Act says This is a point

Hiller seems to concede But he goes on to say

hellip [T]ranslationmdashno matter how accuratemdashis not an adequate solution to the problem of

transferability of law The reason lies in the facts that both law and languages are carriers of

culture and that each culture has its own integrity and internal consistency20 These are the

20 Original note 20 ldquoWe may figure the task of the judge if we please the task of a translator the

reading of signs and symbols given from without None the less we will not set men to such a task

unless they have absorbed the spirit and have filled themselves with a love of the language they must


46

reasons not only why an imported law or institution will not work in the importing country the

way it did in the exporting country21 but more importantly why the importation of foreign

elements into a culture will lsquoskewrsquo the receiving culture in profound ways hellip (pp 158-59)

The successful transplant of a foreign law is of course not solely dependent on an

accurate translation Whether a foreign law can work in the importing culture or not is

a socio-cultural problem not a translation problem Translation can only do what it

can do It can only render a foreign law comprehensible to people of the importing

culture So we can well agree with Hiller that translation ldquois not an adequate solution

to the problem of transferability of lawrdquo Here ldquotransferabilityrdquo means ldquosuccessful

transplantrdquo not ldquosuccessful communicationrdquo While successful transplant requires

successful communication as a pre-condition translation alone cannot transfer the

socio-cultural conditions of a foreign law to the importing culture and makes it work

there The kind of transfer translation effects is linguistic and conceptual not

substantive

222 Translating the Common Law into Chinese as Cultural Transfer

When Hong Kong became a British colony in 1842 the British brought along a

whole lot of ldquoculture-specificrdquo things tangible and intangible of which the common readrdquo B N Cardoro The Notes of the Judicial Process (New Haven Yale University Press 1923) p

174 21 Bob Seldman stresses for example why we cannot assume that every properly socialized person will

know the law if that law is a product of a foreign system On ignorantia juris generally see R B

Seldman supra note 4 at 689 He says by way of illustration ldquoHowever well the system for the

promulgation of laws may work in England it may not and does not work adequately in Africardquo Id at

697


47

law was one Surprisingly enough it did not seem to occur to Legrand or Watson that

legal transplant as in the case of Hong Kong could pre-empt many of the questions

that triggered their long debate First the transplant was not from one jurisdiction to

anothermdashit was carried out within the same common law jurisdiction as Hong Kong

became a common law jurisdiction the moment the British flag was hoisted (or legally

even earlier) Second for nearly a century and a half the law was in the same

language as its home state namely English Third the law was administered and

practised by professionals from its home state or from other common law

jurisdictions or from the local community who spoke and were trained in the same

language of the law In a word except for some adaptations in areas such as marriage

and succession the common law was transplanted to Hong Kong en bloc Thus the

legal culture however estranged it was from the majority of citizens who were

Chinese-speaking was unmistakably a common law culture

The translation of the common law into Chinese was therefore by no means

carried out in an alien culture from the outset Rather it was carried out in the

transplanted culture of the common law There was no sharp distinction between

source and target cultures in the first place

Under the bilingual legislation system of Hong Kong the English text and its

Chinese counterpart must fulfill two conditions First they must have equal legal

status Second they must convey the same legal meaning The first condition must be

and was in fact met by legislative measures22 However how the second condition

can be met is still not clear to many translation scholars and practising law translators

22 The Interpretation and General Clauses Ordinance (Cap 1) was amended in 1987 to accord both

language texts of the law equal legal status


48

Some like Snell-Hornby have contended that equivalence in meaning is a chimera

an illusion or an unattainable goal Thinking along the line of Vermeerrsquos skopos

theory we have a definitive purpose here whatever we do and however we do it the

Chinese text must convey the same legal meaning as the English text in other words

the two texts must be equivalent in legal meaning If equivalence were indeed an

illusion then no multilingual legal system would be viable

Let us now re-examine the goal of legal translation now that we have a clearer

notion of cultural transfer in mind Legal translation is certainly among the varieties

of translations where the translator is subject to stringent semantic constraints at all

levels due to the peculiar features of the language of English law on the one hand and

the culturally mediated nature of legal discourse on the other To maintain the

authenticity of the law the cultural concepts which are specific to the original legal

system could not be replaced by functionally equivalent concepts of the Chinese

language Thus cultural transfer by way of domestication is not appropriate in legal

translation The authoritative status of legislation dictates that the goal of legislative

translation is to reproduce a legal text in the target language which conveys the same

legal meaning as the source text It requires the legal translator to adjust the target

language in such a way that the legal meaning of the source text could be expressed

by the target language Cultural transfer as foreignization is best exemplified in the

translation of a particular legal system from one language to another in the present

case the translation of the common law into Chinese

While Hong Kong ceased to be a British colony on July 1 1997 it has been

allowed to retain English law under Chinarsquos policy of ldquoOne Country Two Systemsrdquo

The laws previously in force namely the common law rules of equity ordinances


49

subordinate legislation and customary law together with the use of English as an

official language have been preserved under the Basic Law of the Hong Kong

Administrative Region

As has been noted the authoritative status of legal texts requires that the goal of

legal translation is to reproduce a legal text in the target language which has the same

legal meaning as the source text Regarding this Roebuck and Sin (1993) defined the

goal of translating the common law into Chinese 23

In attempting to create in Chinese an authentic version of a Common Law rule or principle it

is essential that the Chinese express exactly the same message as the original rule in English

insofar as its meaning is prescriptive (p 193)

23 Sin (1992) set out some basic conditions for the semantic equivalence in translating the Common

Law into Chinese in terms of bilingual legislation

All discussion about semantic equivalence will become futile if we do not focus on the aspect or

aspects of meaning relevant to a particular purpose So we can now define semantic equivalence

between two legal sentences in the following way

(1) Semantic equivalence = sameness in meaning with reference to the relevant

aspect(s)

(2) A sentence S in Language L is = S and Srsquo have the same meaning with reference to the

semantically equivalent to a relevant aspect(s) and S and Srsquo have the same

sentence Srsquo in Language L reference scheme

(3) The legal meaning of a sentence S = The prescriptive value of S

(4) A sentence C of the Chinese version = C and E have the same prescriptive value ie they

of the Common Law has the same prescribe the same behavior under the same

legal meaning as a sentence E of the behavior under the same circumstances and

English version of the Common Law conditions

(5) A sentence C in the Chinese version of the law is semantically equivalent to a sentence E in

the English version if and only if whatever interpretation given to E by the court is given to C (pp

96-99)


50

Sin (1998) pointedly voices the dilemma that the legal translator faced in seeking to

achieve such a goal

The tension between the translatorrsquos paramount duty to represent the law with

uncompromising accuracy on the one hand and the strong desire of the public to have the law

communicated to them in clear language on the other was deeply felt hellip It is a perennial

tension between the polarity of the two extreme approaches to translation characterized by

Schleiermacher (181342) ldquoeither the translator leaves the writer alone as much as possible

and moves the reader toward the writer or he leaves the reader alone as much as possible and

moves the writer toward the readerrdquo (p203)

Thus the inherent difficulties of the translation of the common law into Chinese

present a highly relevant case for our discussion of cultural transfer as foreignization

As a matter of fact cultural transfer as foreignization is not a novel idea in the

history of translation in China The translation of Buddhist scriptures is a much cited

paradigm of foreignization Although Buddhism became a popular religion in China

it originated in India and was unknown to the Chinese before the middle of first

century The translation of Buddhist scriptures into Chinese began in the Han dynasty

Many Buddhist concepts were new to the Chinese and there were no Chinese terms

expressing Buddhist concepts Xuan Zhuang (玄奘) the most influential figure in the

translation of Buddhist scriptures developed important translation techniques like

amplification omission borrowing and transliteration all effective methods to

introduce Buddhist foreign concepts into Chinese 24 Linguistic adjustments for 24 Xuanzhuangrsquos theory of the Five Untranslatables (五種不翻) or five instances where one should

transliterate (1) Secrets tuoluoni 陀羅尼 a Sanskrit curse (2) Polysemy baojia 薄伽 for a Sanskrit

word that has 6 meanings comfortable flourishing dignity name lucky esteemed (3) None in China


51

conceptual assimilation were made and with the gradual integration of the translated

texts into the Chinese language Buddhist concepts have now become an inseparable

part of Chinese culture This would not have happened if the domestication approach

had been adopted for the obvious reason that domestication would have turned

foreign Buddhist concepts into indigenous Chinese ones leaving Chinese culture

intact without incorporating Buddhism Examples of foreignization abound in the

history of translation not only in China but also in other parts of the world Whenever

a culture is transferred from one language to another there is always a need for

conceptual adjustment which invariably results in the foreignization of the importing

language The translation of the common law into Chinese is simply one such case

223 Metalinguistic Devices and Cultural Transfer in Legal Translation

As has been noted the primary aim of legal translation in the context of bilingual

and multilingual legislation is to prepare different language versions of one and the

same law This means that they must convey the same legal meaning Thus semantic

equivalence is presupposed by all bilingual and multilingual legislation systems

The term ldquoequivalencerdquo has been used in the literature to define successful

translation or to describe the ideal result of translation 25 and the concept of

yanfu tree 閻浮樹 a kind of tree that does not grow in China (4) Deference to the past Anouputi (阿

耨菩提) for a special kind of knowledge This transliteration is an established usage (5) To inspire

respect and righteousness banruo 般若 (Prajna) instead of ldquowisdomrdquo ( 智慧 )

(httpenwikipediaorgwikiChinese_Translation_Theory accessed on May 5th 2007)

25 Various definitions of translation given by translation theorists based on the notion of

ldquoequivalencerdquo are as below


52

equivalence has been variously defined in terms of functional equivalence conceptual

equivalence semantic equivalence formal equivalence dynamic equivalence lexical

equivalence syntactic equivalence textual equivalence and pragmatic equivalence

Since legal translation is primarily concerned with the translation of legal concepts it

is ldquoconceptual equivalencerdquo or ldquosemantic equivalencerdquo (sameness in legal meaning)

that we have to achieve Conceptual equivalence requires that different language

versions of the law must convey the same legal concept(s) in question Doubts have

been raised as to whether conceptual or semantic equivalence can be achieved If it

could be shown that semantic equivalence cannot be achieved then all bilingual and

multilingual legislation systems would be groundless Thus it is of paramount

importance in legal translation that semantic equivalence can be shown to be possible

Language can be viewed as a system of symbols codes or signs As is well

known Saussurersquos dualism of the signifier (sound image or the word) and the

signified (concept) was developed by Peirce by way of a triadic relationship of the

sign and subsequently by Ogden and Richards by way of the semantic triangle26

According to the semantic triangle words are the means of representing concepts in a

Translation may be defined as follows the replacement of textual material in one language (SL)

by equivalent material in another language (TL) (Catford 1965 p20)

Translating consists in reproducing in the receptor language the closest natural equivalent of the

source-language message (Nida and Taber 1969 p12)

[Translation] leads from a source-language text to a target-language text which is as close an

equivalent as possible and presupposes an understanding of the content and style of the original

(Wilss 1982 p62) 26 The Semantic Triangle is a model showing the relationship between the words the concepts and the

referents that words represent The semantic triangle by adding ldquoreferentrdquo to Saussurersquos dualism of

word and concept contains three elements (a) symbol (signifier)mdashword being perceived (b) reference

(signified)mdashthe concept of what being perceived (c) referent (object)mdashthought or thing being

perceived


53

language no matter whether such a concept is directly coupled with a referent in

reality or not In other words any word has a referent in reality however indirectly

and all concepts can be described by their manifestations in reality If a word refers to

a certain object directly perceivable in reality then we have a typical case of the

semantic triangle of word concept and referent If a word denotes an abstract concept

which has no direct referent in the physical world the referent in the semantic triangle

may not be directly perceivable in reality but still can be explained by means of

observable objects

Similarly the referents of legal concepts can be directly or indirectly described

by their manifestations in reality This is especially true due to the nature of the law

as Sin (1992) points out

Law is a set of rules which prescribe and regulate human behaviour Legal systems differ only

in the content but not in the nature of such rules hellip One important property of human behavior

is that it is publicly observable Accordingly all legal systems can be understood in the light

of human behavior observable in identifiable circumstances and conditions hellip Human

behaviour as well as the circumstances and conditions in which it is observed can be

described with sufficient precision in any language (p 95)

In legal translation the translated version should prescribe the same behaviour as

does the original version ldquonot only by virtue of its legal authority but also by virtue of

its legal meaningrdquo (Sin 1992 p 95) The translated version can acquire the same

legal meaning as the original version only when the legal meaning of the translated

version is construed in the light of the semantic reference scheme of the original


54

version Sin (1992) goes on to analyze the goal of legal translation in terms of

semantic equivalence

although no two texts in different languages are identical in all aspects of meaning semantic

equivalence hellip can still exist between them if they are compared with reference to the same

aspect of meaning hellip (and) should be defined in terms of sameness in legal meaning which is

evidently the most relevant aspect of meaning they should have in common (p 96)

One may still ask In what way can semantic equivalence be achieved in

translation when the languages in question do not contain concepts that are exactly the

same or when the meanings or concepts of the source language which we generally

refer to as cultural concepts are different from or even absent in the target language

The answer to this question can be found in Feyerabendrsquos (1987) insightful

observation on Evans-Pritchardrsquos translation of the Azande language When

translating the Azande word ldquombismordquo the translator decided to translate it as ldquosoulrdquo

in English but this is not the end of it The translator added that ldquosoulrdquo in English

implies life and consciousness while ldquombismordquo in Azande covers a collection of

public or ldquoobjectiverdquo events The significance of the translatorrsquos note is fourfold First

it draws attention to the fact that the use of the word ldquosoulrdquo in itself constitutes a

problem Second it makes the word ldquosoulrdquo more suitable for expressing what Azande

people have in mind Third it redefines an English notion to accommodate elements of

a new concept Fourth it effects conceptual change ie cultural transfer at the

metalinguistic level (pp 267-68) Feyerabend sums up all these points in a well

formulated general principle of translation ldquoSuccessful translations always change the

medium in which they occurrdquo (p 266) The importance of this principle can never be

overstated for it shows that any successful transfer of culture must change the


55

importing language and that such transfers must be effected at the metalinguistic

level

The concept of metalanguage is not new in translation studies 27 Before

Feyerabend Roman Jakobson had pointed out that the metalinguistic function was

one of the major functions of language He noted

A faculty of speaking a given language implies a faculty of talking about this language Such a

lsquometa-linguisticrsquo operation permits revision and redefinition of the vocabulary used cognitive

experience and its classification is conveyable in any existing language Whenever there is

deficiency terminology may be qualified and amplified by loanwords or loan-translations

neologisms or semantic shifts and finally by circumlocutions (Quoted in Chesterman 1989 p

56)

As can be seen even if the concept a certain word designates exists in one

language but not in another the referent (direct or indirect) the word and concept

stand for can always be replaced by a word in another language by way of linguistic

adjustment28 in the form of a loan word a descriptive phrase or a newly coined word

In the case of translation the various metalinguistic devices adopted by the translator

27 Gombert (1992 p 1) discussed the definition of the term metalanguage

In a more general sense the word metalanguage is used to refer to the language where natural or

formalized (as in logic) which is itself used to speak of a language More precisely as

Benveniste (1974) emphasizes this word refers to a language whose sole function is to describe

a language 28 In this study we use the concept of ldquoformrdquo only in the sense of ldquolinguistic formrdquo that is as the form

of a language sign in opposition to its meaning As meaning is the property of a language which is

manifested through language and embodied in language For any existing language sign there are two

sides of it the form and the meaning of it


56

are often explicitly stated in hisher explanatory notes And it is at the metalinguistic

level that conceptual semantic equivalence is achieved A word in the target

language is defined as the equivalent for its counterpart in the source language29 That

is to say two different signs are made to denote one and the same concept

Thus understood foreignization is simply a metalinguistic operation whereby

cultural transfer is effected In this study conceptual semantic equivalence is not

understood as the one-to-one correspondence between languages which is absent as

languages stand but as a semantic relationship at the metalinguistic level Put simply

conceptual semantic equivalence is not found but created It results from a most

common-or-garden metalinguistic operationmdashmaking two things stand for one and

the same concept It should now be clear how different language texts produced by

translation can convey the same legal meaningmdashthey are simply made to do so

29 In trying to solve the problem of translation equivalence Neubert postulates that from the point of

view of a theory of texts translation equivalence must be considered a semiotic category comprising a

semantic syntactic and pragmatic component following Pierces categories These components are

arranged in a hierarchical relationship where semantic equivalence takes priority over syntactic

equivalence and pragmatic equivalence conditioning and modifying both the other elements

Chapter 3

The Concept of Legal Culture in Legal Translation

31 Previous Studies of Legal Culture

311 Law and Culture

Since cultural transfer as foreignization is best exemplified in legal translation it

will be helpful here to explore the concept of legal culture with practical reference to

the translation of the common law into Chinese The study is not confined to the

complete comprehension of a legal discourse which contains unstated legal

conventions (cultures) embedded deep in the linguistic form It concerns itself more

with how unstated legal elements can be transferred in legal translation If legal

culture is taken to mean culture in relation to law then gaining insight into the

concept of legal culture will enable us to understand the relation between culture and

law

The concept of culture is plagued with definitional problems A number of

anthropologists have offered useful accounts of the concept of culture Raymond

Williams Culture and Society (1961) is often credited with helping to instigate what

is now known as cultural studies In an attempt to identify the concepts and

definitions of culture the eminent anthropologists Alfred Kroeber and Clyde

Kluckhohn (1963) approached culture as a traditional crystallization with traditional

values at the centre of the culture Next translation theorist Peter Newmark (1988)

gave a rather comprehensive definition of culture ldquoas the way of life and its

THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 58

manifestations that are peculiar to a community that uses a particular language as its

means of expressionrdquo (p 94)30 Legal scholar D J Black (1976) defined culture as

ldquothe symbolic aspect of social life including expressions of what is true good and

beautifulrdquo (p 61) It encompassed such things as ldquoideas about the nature of realityrdquo

ldquoconception of what ought to bersquo and ldquoaesthetic life of all sortsrdquo (p 61) For Black

culture included all kinds of ideas concepts and beliefs as manifested in language

behaviour and lifestyle A more recent definition from Bates and Plog (1990) states

that culture is ldquothe system of shared beliefs values customs behaviours and artifacts

that the members of society use to cope with their world and with one another and

that are transmitted from generation to generation through learningrdquo (p 7)

Law is just one part of culture that actively contributes in the composition of

social relations Sarat and Kearns (1999) pointed out that ldquowith the growing attention

to legal consciousness and legal ideology in socio-legal studies legal scholars have

come regularly to attend to the cultural lives of law and the ways law lives in the

domains of culturerdquo (p 5) Black (1976) defined law as ldquogovernmental social

controlrdquo Social control was in turn defined as ldquoresponse to deviant behaviourrdquo of

every kind including ldquolaw etiquette custom ethics bureaucracy and the treatment of

mental illnessrdquo (p 9) The concept of law occupies a central place in Blackrsquos theory

In his view the grown tree of cultural tradition imposes core legal meanings that can

be traced down to historical roots Conventionally the study of law with relation to

culture is the study of a complex whole which includes knowledge belief art morals

30 Newmark further classified culture into five categories Ecological culture such as plants animals

winds landscape etc material culture such as food clothes transport etc social culture such as work

and leisure culture of organizations customs activities procedures concepts and culture of gestures

and habits (p 83)


legal custom and any other capabilities and habits acquired by man as a member of

society

Previous studies of legal culture have thus exhibited multiple perspectives and

approaches Research interests in legal culture arise mainly from inter-disciplinary

studies especially comparative law and social science although the range of subjects

judged relevant to the concept of legal culture varies from study to study Because

sociologists comparativists and other theorists have very different ideas about what

constitutes ldquolegal culturerdquo many different views and practices are subsumed under the

same concept It is a concept that is frequently employed as a convenient cover term

for a large number of phenomena the general status of law in a society specific

structures of law opinions with regard to law by the general public or legal

professionals particular practices or behaviours of legal institutions or legal

professionals Legal culture has often been analyzed in its relation to particular

countries and legal systems There is an extensive literature on the legal culture of

specific countries In addition there are numerous works (especially works by

scholars of comparative law) discussing and analyzing the distinctive characteristics

and cultures of the two main legal systems the civil law and the common law31 The

concept of legal culture seems to be an all encompassing referential and explanatory

instrument for all relevant theoretical studies As is the case with the concept of

culture a common understanding of legal culture seems impossible to achieve In

31 Scholars of comparative law may be in a better position to analyze different legal cultures between

civil law and the common law if they acknowledge the fundamental and profound distinctions between

these two major legal traditions There is an inclination to treat them as homogenized in spite of the

fact that they operate in different jurisdictions The characteristics of the common law and civil law

have often been discussed with special reference to the development of legal tradition again a process

of crystallization


addition it is hard to engage in any analysis without asking ldquolegal culture in what

sense of the term or in relation to what kind of research subjectrdquo Therefore instead

of falling into the trap of defining legal culture as some kind of unitary force we

intend to describe and analyze the substantive contents that constitute the culture of

law with regard to legal translation studies We will begin with a review of how the

concept of legal culture has been conceived in previous studies

Since the notion of culture is hard to define due to its multifarious interpretations

in the literature there is no standard definition of culture However many scholars

accept the postulates provided by Bates and Plog (1990) as a working version Culture

is thus defined here sociologically as the typical ways of living built up by a people

including the beliefs and attitudes which support them Culture under such a

treatment finds its expression on two levels (1) shared beliefs and values conceived

by particular members of society and (2) the customary behaviours they practice

Studies relating to legal culture cover many aspects and it is not necessary for our

present purpose to give a comprehensive account of all those extended explorations

Rather we need is to isolate the variables that legal culture can refer to and then to

identify among these variables which sense of legal culture legal translation has to

deal with Some of the major variables for this concept of legal culture are

- Shared attitudes values and opinions (Friedman 1975 p 76)

- Legal ideology (Cotterell 1997 p 22)

- Shared norms and modes of thinking (Ginsburg 2003 p 1337 )


- Legal studies legal education and legal theory addressing legal conceptions

policies and reasoning and education (Atias 1986 pp 1118-9 )

- Legal reasoning that cultivated a series of principles of the case law (Atiyah

(1987 p 323)

- Legal principles best represent the spirit of rule of law (Kuan 1997 pp

187-205)

- Attitudes and beliefs lie in legal tradition (Pound1937 Merryman 1985)

- ldquoLaw in bookrdquo ldquolaw in actionrdquo ldquoelite legal consciousnessrdquo and ldquolegal

behavioursrdquo (Blankenburg amp Bruinsma 1994 pp 39 42)

- ldquoMentalitiesrdquo ldquomode of thinkingrdquo ldquothe method of reasoningrdquo and ldquolegal

trainingrdquo (Curran 1998 p 70)

As this list suggests the concept of legal culture in general discussions refers to

such varied elements that the variables mentioned need to be categorized if they are to

assist our further analysis Just as with culture in the broad sense the concepts of legal

culture discussed by scholars can be categorized in two ways Legal culture may refer

to peoplersquos conceptions of law alone or to both peoplersquos conceptions and their specific

practices of law32

32 To select a term that could best cover the numerous parameters in relation to the totality of peoplersquos

thought referred to in extensive studies by scholars from different disciplines we considered of


312 Legal Culture as Conceptions of Law

Viewing legal culture as conceptions widely held by people within a society

country or legal system theorists tend to concentrate on the thought-related

expression of legal culture In an attempt to bring out the idea that particular legal

systems operating in a social context have cultural and ideological presuppositions

and implications Friedman (1977) distinguished between ldquointernal legal culturerdquo and

ldquolay legal culturerdquo after giving his general definition of legal culture ie ldquoattitudes

values and opinions held in society with regard to law the legal system and its

various partsrdquo He observed that such ldquoattitudes values and opinionsrdquo could be

divided into two sets that of the ldquogeneral publicrdquo and ldquothat of lawyers judges and

other professionalsrdquo (p 76) For Friedman (1997) the concept of legal culture was a

useful way to categorize a range of phenomena in the field of law (p 33) This

position was first criticized by Cotterrell (1997) who held that it is impossible to

develop a concept of legal culture with sufficient analytical precision and that the

concept works more as an ideal than as a set of variables He basically rejected the

concept of legal culture as a way of identifying the exact relationship existing among

social phenomena such as characteristic institutions and patterns of thought and belief adopting the term ldquoideologyrdquo as proposed by Cotterrell (1997 pp 21-22) However the term

ldquoideologyrdquo has been notoriously tainted with political implications and is therefore misleading We thus

finally decided to use the more neutral and general term ldquoconceptionrdquo which serves our purpose of

generalizing the many variables pertaining to totality of thought (as distinct from totality of practice or

behaviour) that legal culture can refer to The definitions of ldquoconceptionrdquo in the OED online dictionary

are as follows (a) The action or faculty of conceiving in the mind or of forming an idea or notion of

anything apprehension imagination (b) The forming of a concept or general notion the faculty of

forming such pl Thoughts meditations courses of thought (c) That which is conceived in the mind

an idea notion (d) An opinion notion view (e) Something originated in the mind a design plan an

original idea (as of a work of art etc) a mental product of the inventive faculty (OED Online

Dictionary httpdictionaryoedcom accessed on August 2007)


He viewed the concept of legal culture as merely a convenient concept to ldquorefer

provisionally to a general environment of social practices traditions understandings

and values in which law existsrdquo (pp 21-22) Cotterrell thus preferred to use a more

specific notionmdashlegal ideology For him this represented legal doctrines ldquobeliefs

attitudes and valuesrdquo that ldquocan be translated into regulatory practicesrdquo (p 22)

Friedman (1997) contended that while vague and difficult to define there are many

fundamental concepts like ldquostructurerdquo or ldquosystemrdquo which constitute the building

blocks of social science (p 33) The concept of legal culture which he regarded as

falling into this class is useful for categorizing a range of phenomena in the field of

law (p 33) In reaction to Cotterellrsquos proposal to substitute the notion of legal culture

for that of legal ideology Friedman observed that legal ideology fell into his

classification of internal legal culture an aspect of culture that finds particular

resonance with scholars and legal professionals many of them have attached great

importance to ldquolegal ideologyrdquo especially legal doctrines (p 38) Friedman then

pushed the centre of his study of legal culture to what he called ldquolayrdquo legal culture (p

39)

Following Friedmanrsquos dichotomy between external and internal legal culture

Ginsburg (2003) noted that legal culture as characterized by legal scholars could be

defined in two ways On the one hand legal culture could be viewed in terms of its

intimate association and active interaction with a social and national culture

(Friedmanrsquos external legal culture) On the other hand legal culture could be regarded

as the internal legal culture featuring the ldquoshared normsrdquo and mode of thinking of

legal professionals that resulted from their common training (p 1337) Farrar and

Dugdale (1990 p 246) preferred to confine the concept of legal culture to internal

legal culture since they shared Watsonrsquos view that ldquolaw is more an expression of the


culture of the lawmaking elite rather than that of society at large and that the variety

of interests and attitudes possessed by such elites may thwart attempts to generalizerdquo

Although Friedmanrsquos dichotomy of legal culture makes it easier to further explore the

nature of legal culture it is undeniable that an essential substance of any legal system

is the culture of the legal professionals

Atias (1986) observed from the perspective of American law that legal culture

had been a well received and commonly used term among American legal researchers

The notion of American legal culture itself however still lacked conceptual precision

and deserved ldquobetter treatmentrdquo In view of this he proposed that ldquothe notion of

traditional scholarly orderrdquo as a springboard for the study of the notion of American

legal culture (p 1122) Atias believed that legal culture was based on the rich history

of legal studies and legal education while legal studies encompassed various legal

theory addressing legal conceptions policies and reasoning and education (pp

1118-9) Cultural consistency and enrichment came from the progressive

sedimentation of continuous efforts jointly made by the legal profession especially

lawyers jurists and judges to uphold those legal principles that finally ldquosurvive the

most conclusive criticisms and preserve their appealrdquo (p 1134) Atias concluded that

ldquothe study of the legal culture is thus the study of its progressive and never finished

formationrdquo (p 1135) In similar vein Atiyah (1987) held that the legal culture of the

common law included legal reasoning that cultivated a series of principles of the case

law and consequently ldquoEnglish statute has traditionally been drafted in such detail that

it can be said to be a catalogue of rulesrdquo (p 323) As we shall see both legal theory

and legal reasoning are definitely a reflection of views and beliefs about law thus

putting law in a cultural context


In Mineshimarsquos (2002) view the notion of the rule of law was the foundation of

any given legal system or legal culture This notion was determined by the traditions

and attitudes such as the views on the role and functions of the state the law and the

legal system In other words legal culture consisted of the traditional attitudes

towards the role and functions of the state the law and the legal systems (p 74) Kuan

(1997) also considered the idea of rule of law as an integral part of legal culture She

held that the legal culture of the common law lay in the concept of the rule of law

which found its expression in various legal principles (pp 187-205) For her the

seven most important common law principles embodied in the concept of rule of law

were ldquono law no crime equality before law law binds the ruler judicial

independence inborn rights obligations over rights and presumption of innocencerdquo

(p 195)33

If legal culture is regarded as peoplersquos conceptions of law it is appropriate to

probe its historical roots and philosophical foundation to search out how and where

legal tradition comes into play thus affirming that legal tradition is the basis of legal

culture Pound (1939) highlighted the concept of legal tradition when comparing the

characteristics of the common law and civil law For him the legal culture of the

common law contained those distinct traits derived from its legal tradition Another

33 Kuan also incorporated Betty Tsursquos argument that ldquothe concept of the rule of law is represented by

three items nullum crimen sine lege exercise of arbitrary power by the police and equal opportunity

before the courtsrdquo (p 190) Kuan gave a more detailed description of the rule of law ldquothe rule of law

is deconstructed into four theoretical aspects legal freedom legal equality rights-based autonomy of

law and due process Legal freedom meaning freedom from arbitrary government is defined by the

principle of lsquono law no crimersquo Legal equality consists of two principles the general principle of

lsquoequality before lawrsquo and the specific principle of lsquolaw binds the rulerrsquo The complex aspect of legal

autonomy is expressed by three principles lsquojudicial independencersquo lsquoinborn rightsrsquo and lsquoobligations

over rightsrsquo The last aspect of due process is defined in terms of the principle of lsquopresumption of

innocencersquo (pp 202-03)


American comparativist Merryman (1985) gave legal tradition a more detailed

description ldquoa legal tradition (as opposed to a system) is a set of deeply rooted

historically conditioned attitudes about the nature of law about the role of law in the

society and the policy about the proper organization of the operation of a legal system

and about the way law is or should be made applied and studied perfected and

taughtrdquo (p 2) For Merryman the shared cultural traits of different legal systems have

their origin in legal tradition in other words legal tradition is what endows them with

those shared cultural traits In this sense legal culture comes from legal tradition

However many have contended that the difference between legal tradition and

legal culture is merely one of emphasis Legal tradition signifies a historical

perspective while legal culture refers more to the anthropological ethnic or

socio-political perspective of law As we shall see legal culture is regarded as

peoplersquos conception of law either in its contemporary manifestation or in its historical

growth ie legal tradition The term ldquolegal culturerdquo is concerned more with

theoretical or ideological opinions than with actual behaviours or practices

313 Legal Culture as Both Conceptions and Practices of Law

For other scholars legal culture not only refers to what is conceived in peoplersquos

mind but also to their behaviours and practices with respect to law In a comparative

research on differences between the common law and civil law Curran (1998)

acknowledged that there were fundamental differences between the common law and

civil law with respect to ldquomentalitiesrdquo ldquomode of thinkingrdquo ldquothe method of reasoningrdquo

and ldquolegal trainingrdquo that can be considered as composing elements of legal culture (p


70) Curran then analyzed the ldquoattributesrdquo that were ldquocharacteristic of common-lawrdquo

legal culture ldquobut uncharacteristic of civil-lawrdquo legal culture by observing that the

common law was ldquoa law defined in terms of past judicial decisionsrdquo and evolved with

the legal rules from ldquoprior judicial decisionsrdquo while the civil law attached more

importance to codification (pp 71-75) Curran also noted that ldquothe prominence of the

proceduralrdquo was another distinct feature in common law legal culture (p 81) Most

importantly common law legal professionals had been habitually skilful in ldquoreasoning

by analogyrdquo and produced ldquoan accumulated body of arguably similar and dissimilar

prior casesrdquo and ldquoconsequently statutory norms are lain on a Procrustean bed of

precedents even when they have never yet been subject to adjudication in the relevant

jurisdictionrdquo (p 83) Curran then concluded that ldquothe significance of the common law

thus resides in the case law even where the common-law court is applying a statute

and even where the statute is newrdquo (p 83)

Blankenburg devoted many years and much literature to the study of legal

culture Blankenburg amp Verwoerd (1988) observed that there were two conceptions of

legal culture One conception treated law as a system consisting of rules and

principles The other viewed legal culture not only as the above rules and principles

but also as the institutional practices attitudes and behaviour of legal actors (p 10)

Blankenbrug amp Bruinsma (1994) reinforced the above view in another study of Dutch

legal culture They identified Dutch legal culture at four levels (1) ldquolaw in booksrdquo (2)

ldquolaw in actionrdquo (3) legal behaviours such as litigation preferences and (4) ldquoelite legal

consciousnessrdquo (pp 13-14)34 In another comparative work Blankenburg (1998)

34 In giving a detailed description of ldquolaw in booksrdquo Blankenburg (1998) held that it ldquocomprises the

body of substantive as well as procedural law that is considered legally valid helliprdquo As for the concrete

substances of ldquolaw in actionrdquo Blankenburg (1998 p 13) claimed that it ldquois channeled by the


investigated the patterns of legal culture by comparing the legal institutions with those

of Germany He argued that legal culture was ldquocharacterized by indicators of

institutions as well as behaviourrdquo (p39) Acknowledging that the conception of legal

culture was a comprehensive one he extended Friedmanrsquos ldquooperational definitionsrdquo of

legal culture ie attitudes values and beliefs to ldquointerrelationship of various levelsrdquo

that were more suitable for comparative and descriptive studies (p 40) These levels

are (1) ldquopatterns of legal behaviourrdquo such as litigation behaviour (2) ldquopatterns of

legal consciousnessrdquo (3) patterns of institutional behaviour such as ldquothe legal training

the composition of the legal profession the organization of courts and the

infrastructure of access to themrdquo (p 41) Blankenburg held that patterns of legal

culture (the above three levels) could serve as indicators when comparing legal

cultures We can see that the above researchers are not satisfied with limiting the

concept of legal culture merely to conceptions of law held by people Moreover they

employ the concept of legal culture to refer to a wide range of phenomena such as

litigation preferences in a society the practice of legal training and education and

shared behavioural patterns among legal professionals For our present purpose we

will consider legal culture less as a universal value system that directs peoplersquos

actions and more as a variety of conceptual instruments for classifying attributes of

peoplersquos conceptions and practices We will additionally focus more on those aspects

of legal culture which have a direct bearing on our inquiry into legal translation

institutional infrastructure of the legal system Two important elements of this infrastructure are the

judicial court system and the legal profession In their shadow para-judicial institutions may be

substitutes for the formal court system and the legal profession helliprdquo (p 13)


32 Clarification of the Concept of Legal Culture

Concerning the actual relevance of legal culture to legal translation we would

like to note the following First despite the denunciation of translation as linguistic

transcoding in arguments for a culturally oriented approach against a linguistically

oriented approach in general translation theory (Snell-Hornby 1990 pp 79-85)

translation remains by nature an act of linguistic transcoding and the proposition of

translation as cultural transfer actually represents one pole of the interpretation of

cultural transfer in translation ie cultural transfer as domestication Secondly

cultural transfer as foreignization is best exemplified in legal translation since the goal

of legal translation is to reproduce a legal text in the target language which has the

same meaning as the source text while also transferring the legal culture of the source

text into the target language text The legal translator is bound to achieve semantic

equivalence in cultural transfer foreignization Thus concepts like linguistic

transcoding cultural transfer semantic equivalence and legal culture deserve serious

treatment as these notions with their interpretations determine how we think about

legal translation and also shape the specific theoretical framework we construct in the

special context of translating the common law into Chinese We earlier clarified the

concepts of linguistic transcoding cultural transfer and semantic equivalence and we

have just investigated the concept of legal culture and its various interpretations in the

previous section As we do not wish to generalize and make broad statements of legal

culture that might crumble under logical analysis we must now clarify the concept of

legal culture insofar as it relates intimately to legal translation

Let us first consider the process of legal translation illustrated by the following

diagram


(1) SL (Language of Source Legal Text) TL (Language of Target Legal text)

Legal culture

embedded in

source text

Transference of

the legal culture

Linguistic transcoding

Which

sense of legal

culture could

find

representation

in the source

legal text

-Legal ideology

-Legal studies legal education

and legal theory

-Shared attitudes values and

beliefs

-Shared norms and modes of

thinking

Variations of

the concept of

legal culture

in literature

Which

sense of legal

culture could

find

representation

in the target

legal text

ST

(Source

Text)

TT

(Target

Text)

Language of

the source

legal text

Language of

the equivalent

legal Text

(2) Assumed SC (Culture of the Source Text) SC (Culture of the Source Text)

Figure 32 Process of Legal Translation


The first plane depicts the process of linguistic transcoding where the legal translator

represents the source legal text with the equivalent legal text in the target language In

other words the two end products of legal texts should convey the same legal

meaning The second plane depicts the process of transferring the legal culture We

note that during the translation process what should be maintained intact is the

source legal culture This point is emphasized as it echoes with our previous

observation that cultural transfer as foreignization is the transfer of the source culture

into the target language instead of naturalizing the source culture with the

overwhelming conventions of the target culture Obviously enough what could be

transferred are the variables that have the most direct and intimate bearing on the

language of the source legal text since the process of foreignization is inseparably

bound up with the process of achieving conceptual semantic equivalence Resuming

our task of finding the legal culture embedded in source text we also ask in figure 32

which sense of legal culture could find representation in the legal text We recall that

the concept of legal culture as examined in the previous section is employed to refer

to a variety of objects that can be grouped into two major categories legal culture as

peoplersquos conceptions of law or as both conceptions and practices In legal translation

the legal translator is faced with the substantive legal textsmdashlaws in their written

form

Take the example of tort law in Hong Kong Although Hong Kongrsquos tort law has

its origin in English tort law some of the legal practices of judges and lawyers may

vary from other common law jurisdictions Legal professionals in Hong Kong may

share the same knowledge and belief in the law of tort ie ldquotort in booksrdquo but what is


the status of ldquotort in actionrdquo35 It is interesting to note that for example courts in

Hong Kong are reluctant to use actuarial evidence in the calculation of damages in the

tort litigation In consequence lawyers are also cautious on whether to provide

actuarial evidence in the court Such practice and behaviour by legal professionals

with regard to tort litigation in Blankenburgrsquos (1994 pp 13-4 amp 1998 pp 39-41)

view was also evidence of the legal culture However it is impossible for the legal

translator to deal with legal culture in that sense as the final encounter of the legal

translator is the legal textmdashthe source language that legal culture is embedded in

Lloyd (1964) thought that the great achievement of the human language especially

the language of law lay in its capacity to create ldquogeneral concepts which provide the

essential tools of human reflectionrdquo (p 285) In explaining the conceptual thinking in

the common law Lloyd remarked

For instance if we take the rules of the criminal law relating to such matters as murder and theft

it is quite true that these are in themselves legal concepts which only have meaning in the

context of legal rules which go to form a legal system We can only understand what is meant by

murder by acquainting ourselves with the legal constituents of this offence and how these

operate in the legal system hellip The law hellip needs to conceptualize these and other related ideas

much more precisely before it can operate a system of criminal law in a rational and systematic

way (pp 289-90)

As Farrar and Dugdale (1990 p 246) put it ldquolaw is more an expression of the

culture of the lawmaking elite rather than that of society at largerdquo the conceptual

35 Here we borrow Blankenburgrsquos idea We use the expression ldquotort in booksrdquo to refer to the body of

substantive and procedural tort law In similar vein we use the expression ldquotort in actionrdquo to

characterize the legal practice and behaviour of the judicial court system and the legal profession


thinking is that of legal professionals rather than that of the general public In

translating the law in books therefore the legal translator should have an adequate

knowledge of the conceptual thinking of legal professionals and transfer this into the

target language Similarly legal culture as viewed in this study refers to the

conceptual thinking about the law shared by legal professionals To sum up briefly

the above schematic framework of exemplification has the merit of simplicity but is

merely the skeleton on which we must build This endeavour may lead to conceptual

refinements and help to narrow down the concept of legal culture to fit our analysis of

legal translation We proceed in the next section to pin down the substantive contents

of legal culture with which the legal translator must cope in translating the common

law into Chinese

33 The Legal Culture of the Common Law

Identification of the concept of legal culture as the conceptual thinking shared by

legal professionals leads us in the present study to a further question what precisely

are these legal conceptions shared by the legal professionals as far as the common law

is concerned Since the culture of the common law as it stands is representative of its

legal tradition we need to look first at the development of the culture of the common

law from a historical perspective ie the common law tradition before we can begin

to analyze its substantive construction36

36 Theorists of comparative law are inclined to use the common law tradition vs civil tradition to

compare between the worldrsquos two major legal systems Comparative studies of the common law and

civil law tend to generalize about the characteristic differences between the two legal systems as if their

traditional features were crystallized even if they do acknowledge that some constructs are peculiar to a

single jurisdiction


The common law is the system of law that prevails in England and in countries

colonized by England The very name is derived from the medieval theory that the

law administered by the kings courts represented the common custom of the realm

The distinctive feature of the common law is that it represents the law of the courts as

expressed in judicial decisions The grounds for deciding cases are found in

precedents provided by past decisions as contrasted to the civil law system which is

based on statutes and prescribed texts It emphasizes the centrality of the judge in the

gradual development of law and the idea that law is found in the distillation and

continual restatement of legal doctrine through the decision of the courts The

common law consists of the rules and other doctrine developed gradually by the

judges of the English royal courts as the foundation of their decisions and added to

over time by judges of those various jurisdictions recognizing the authority of this

accumulating doctrine This concept is embodied in the doctrine of stare decisis

(ldquostanding by decisionsrdquo) that emphasizes the importance of legal precedents

established in previously settled cases The establishment of the common law gives

rise to leading concepts like ldquopersonsrdquo ldquorights and dutiesrdquo and ldquoownership property

and possessionrdquo (Lloyd 1964 pp 300-25) The common laws unity has been

attributed to the fact that law is grounded in and logically derived from a handful of

general principles and that whole subject areas such as contract or tort are

distinguished by common principles or elements that fix the boundaries of each

subject area

The common law tradition shapes the construct of the common law serving as its

philosophical and practical foundation Since the present study focuses on the


conceptual expression of legal culture in general we will concentrate on the

conceptual features of the common law rather than its practical features37

Let us first consider the translation of one fragment of the legislation of Hong

Kong found under the heading Apportionment of liability in case of contributory

negligence

Where any person suffers damage as the result partly of his own fault and partly of the fault of

any other person or persons a claim in respect of that damage shall not be defeated by reason of

the fault of the person suffering the damage but the damages recoverable in respect thereof

shall be reduced to such extent as the court thinks just and equitable having regard to the

claimants share in the responsibility for the damage (Amended LN 337 of 1989) (Cap 23

Sect 21)

The Chinese translation is as follows

條文標題有共分疏忽時法律責任的分攤

如任何人受到損害部分原因是該人本人的過失而部分原因是他人的過失則就該損害

提出的申索不得因受損害者有過失而敗訴但就該申索可追討的損害賠償則必須減少

而減少的程度是法院在顧及申索人對損害應分擔的責任後認為是公正與公平的款額

In the light of figure 32 the legal texts are two linguistic products directly linked

by semantic equivalence Let us explain the thinking process behind such end

37 By practical features we mean the characteristic behaviour and practice of legal professionals and

legal institutions such as how the legal training or education is performed how law is applied by

judges and lawyers etc


products When faced with the English legal text the legal translator seeks to extract

its meaning Clearly she needs to delve into the culture of the common law in order to

understand all the shades of meaning of the English legal text and produce a Chinese

legal text with the same meaning Here arises the real problem what exactly are those

cultural factors of the Common Law that she needs to pin down To understand the

whole world of culture behind every term we need to do legal research trying as

Vandevelde (1996) nicely put it to think like a lawyer We need to know the

subjective classifications the law addresses in the above example we must

understand that the ordinance belongs to an important branch of common lawmdashtort

law We then need to master the conceptual development of the specified law The

common law concept of tort is best defined as a civil wrong which the victim seeks

remedy for in the form of some kind of damages Examples of a tort would be assault

battery false imprisonment and negligence

Let us turn back to the substantive content of the ordinance mentioned above

The ordinance deals with one defence of negligence contributory negligence In

common law the principle of contributory negligence takes into account the relative

degrees of fault between the plaintiff and defendant and attempts to adjust award of

damages accordingly In the light of our categorization of the concept of legal culture

the above discussed legal concepts and legal principles embedded in the ordinance

reflect the shared beliefs of the legal professionals in the common law and fall under

the category of peoplersquos conceptions of law

The common law then is built on a series of traditionally well-formed legal

concepts which belong to different conceptual classifications such as tort equity

contract etc if legal tradition is regarded as the deeply rooted historically formed


attitudes towards law38 Practically legal principles in each subject of the law have

been developed into concrete and coherent constructions that make up the common

law we see before us today Therefore the common law is an accumulation of

deep-rooted historically moulded conceptual thinking shared by legal professionals

and reflected in two aspects legal concepts and legal principles Together these make

up the substance of the common lawrsquos legal culture

34 The Legal Culture of Traditional and Modern Chinese Law

As noted in section 222 the act of translating the common law into Chinese was

at the same time creating a variety of the Chinese language namely common law

Chinese as Chinese had not developed as a language to express the common law

before its translation Historically the development of Chinese legal language

represents the evolution of Chinarsquos legal culture Thus an investigation of the legal

culture of traditional and modern Chinese law serves two purposes First it will show

how the legal culture of traditional and modern Chinese law differs from that of the

38 Curran (2001 p59) also noticed this fundamental nature of the common law but instead of

conceptual ldquoclassificationrdquo she referred to conceptual ldquocategorizationrdquo Curran observed

hellip categorization is the process that underlies and determines differences in cultural contexts

Cultures differ from each other on the basis of the underlying categories in which members of

that culture place the empirically observed data categories whose own construction brings

certain observed data into sharp delineation hellip Thus cultural contexts result from sub-structural

patterns of classification in each culture hellip in contradiction to the Common Law system of

monetary remedies as the norm (normal remedies for breach of contract) and specific

performance the exception The Common Lawrsquos stark delineation between tort and contract law

is alien to the civil law with the concept of lsquofaultrsquo indispensable to civil law contract analysis

while unfamiliar in the Common Law contract analysisrdquo (pp 59 82)


common law Second it will show how Chinese has become an appropriate language

for expressing the common law through the evolution of Chinarsquos legal culture

Traditional Chinese law refers to the law operating in China up to 1911 when the

last imperial dynasty the Qing Dynasty fell Given its long history of feudal

monarchical and imperial regimes China can on this score be regarded as a stagnant

society Despite the stagnation of Chinarsquos political institutions traditional Chinese

law had undergone continuous development with a legal tradition distinct from the

two major legal traditions in the West ie the common law and the civil law The law

operating in different dynasties has its own peculiar features It is generally agreed

that the earliest authentic document on law in China is the Kanggao in Shangshu (尚

書康誥) in the Zhou Dynasty (c 1045-256 BC) Jiang (2003) held that the main idea

in Kanggao was the advancement of virtue (德) and the exercise of discretion in

punishment (明德慎罰) (p 1) However legalism (法家) prevailed and became the

central governing idea of the Qin Dynasty (221-206 BC) In this context Fa (法)

means law or principle which represents the political philosophy that upholds the rule

of law39 The Tang Code (618-906) in the Tang Dynasty was considered one of the

most important codes in Chinese history40 The central philosophy of law in the Tang

39 The main thoughts of legalism included the following the code must be clearly written and made

public all people under the ruler were equal before the law laws should reward those who obey them

and punish accordingly those who dare to break them (Jiang 2003 pp 15-31) Chen (1999) also noted

that

The bamboo strips found in 1975 contain strikingly sophisticated law and institutions from the

Qing Dynasty (221-206 BC) these legal arrangements perhaps represent the most advanced stage

of legal development of the time in the worldrdquo (p 6)

40 Johnson (1979) rightly pointed out the significance of the Tang Code in the history of traditional

Chinese law

Though based on earlier sources Trsquoang legislation has been more important historically than that

of any other dynasty hellip The great criminal code entitled The Trsquoang Code (Gu Tang Lu shu yi 故


Code was summarized as the advancement of li (一本于禮 ) (Jiang 2003

pp123-34)41 Chrsquou (1961) provided a definition of li

The li which may be defined as the rules of behaviour varying in accordance with onersquos status

defined in the various forms of social relationships were formulated by the Confucianists for this

purpose They are the means by which differences in status and role are maintained (pp 230-31)

Therefore a person in a different title and position was required to follow different li

Johnson (1979) also noted that li was the guiding principle for different classes

especially favoured ones (p 11) The Tang Code was considered the earliest model of

criminal law in China and had a strong influence on the development of criminal law

in other East Asian countries42 Johnson (1979) pointed out

hellip the Trsquoang dynasty is the earliest time from which we can obtain an accurate picture of the

range of Chinese criminal law during the imperial period and the structure of ideas that underlay

its provisions (p 8)

Thus the Tang Code had a far-reaching influence on the traditional Chinese law since

ldquoafter the fall of the Trsquoang dynasty the Code continued to dominate Chinese criminal

legislation until the end of the imperial periodrdquo (p 13)

唐律疏議 hereafter referred to as Code) hellip Though only the Code has survived in entirety we

know from historical sources as well as from still extant fragments that there was a large body of

written law in effect during the Trsquoang period There were four main divisions the Code (lu 律)

the Statutes (ling 令) the Regulations (ge 格) and the Ordinances (shi 式) (p5) 41 The term li (禮) is usually translated as rite ceremonies or propriety It is also translated as morality

(Johnson 1979 p 11) 42 Meijer (1976) noted some of the features of the Tang Code

The legal provisions were models and analogical application was allowed hellip The law itself also

often gave rules that a certain act should be similarly punished as an offence defined under a

different heading (p 4)


The Daqing Luumlli(大清律例) compiled in the Qing Dynasty was considered as a

rather comprehensive criminal code 43 Meijer (1976) compared the criminal

provisions in the Tang and Qing Codes to show the development of criminal law in

traditional Chinese law Meijer noted

The provisions were of a simple character categorical classification did not occur as the

evaluation of each act depended on the circumstances So there were not simply provisions for

intentional or unintentional homicide but special articles for parricide ldquoplannedrdquo homicide

homicide in a game by mistake ldquowithout authorityrdquo of more persons of one family of a senior

of the family and vice versa of the slave by the master and vv of an official in an affray by

means of poison or misused drug in hunting etc In the Ta-Chrsquoing Hui-tien the Collected

Institutes of the Chrsquoing dynasty they are classified as the six (ways of) homicide Liu-sha viz

homicide planned intentional in an affray by mistake by negligence and without authority (p

4)

We can see that in the course of the development of traditional Chinese law the focus

is largely on the penal systems and that the sovereignrsquos power to make laws is closely

intertwined with punishments

Since we are not intending to conduct a fully comprehensive analysis of the

development of traditional Chinese law our emphasis will be on the characterization 43 Meijer (1976) introduced the provisions contained in the Qing Code

The Code was divided into seven chapters viz the General Provisions (Ming Li) or Rules about

Names Definitions or Denominators of Offences containing rules about the punishments the ten

ldquoabominationsrdquo privileged classes offences by officials special classes of offenders

impardonable offences increase and reduction of punishment voluntary surrender to justice

indemnification joint offences contradictory provisions in the code desertion of soldiers

terminology The other six chapters contained the rules for the specific offences helliprdquo (pp 4-5)


of the legal culture of traditional Chinese law As noted in section 31 theorists

treated legal culture either as peoplersquos conceptions of law or the combination of

peoplersquos conceptions and practices of law As defined in section 32 legal culture in

this study refers to the conceptual thinking shared by legal professionals Since it is

generally agreed that traditional Chinese law was built on traditional Chinese

philosophy the thoughts shared by traditional Chinese philosophers were embodied in

traditional Chinese codes inherited from one dynasty to another with constant

supplement and revision by each subsequent dynasty Therefore the legal culture of

traditional Chinese law refers to the conceptual thinking of traditional Chinese

philosophers which found an embodiment in the law Let us look at the typical

features of the conceptual thinking embodied in traditional Chinese law and compare

them with the legal culture of the Common Law

It is generally agreed that Confucianism is one of the most important philosophies

manifested in the underlying traditional Chinese law Chrsquou (1961) remarked

The main characteristics of traditional Chinese law are to be found the concept of family and in

the system of classes Since these concepts are basic to Confucian ideology and to Chinese society

they are also basic to Chinese law as well (p9)

Though Confucianism provided the fundamental substance of traditional Chinese law

it was by no means the only philosophy influencing the development of traditional

Chinese law44 Chen (1999) noted

44 Chen (1999) pointed out

hellipthere is always a danger of over-generalization and over-simplification when dealing with a

tradition and a civilization spanning several thousand years In the case of China the traditional


Traditional Chinese conceptions of law have been largely influenced by writings of traditional

schools of philosophy Of these three have had a particular influence namely Ru Jia

(Confucianism) Fa Jia (Legalism) and Yin-Yang Jia with Confucianism being the dominant

force since the Han Dynasty (206 BC) (p 7)

As traditional Chinese law developed it came to incorporate two controversial

philosophies ie Confucianism and Legalism Chen (1999) observed that the central

view of Confucianism was ldquothe educational function of morality (li) in governing a

staterdquo (p7)45 Thus people were distinguished according to their status this should be

clearly defined so that people of different status could carry out their roles properly

and conform to approved patterns of behaviour Johnson (1969) held that the thought

of li promoted by Confucianism had at least three major impacts on the conceptual

thinking of traditional Chinese law First in traditional Chinese law ldquoa hierarchical

structure of superior-subordinate relationship is treated as natural and indispensable to

regulate human relationshipsrdquo Secondly it helped the sovereign ldquodevelop a legal

concept of rulership which is dovetailed with the concept of virtuous leadersrdquo Thirdly

ldquolaw is treated as rules of propriety rather than a device to protect individual rightsrdquo

(pp16-17)

society and legal culture are often described as lsquoConfucianrsquo However Confucian teachings as

reflected in the Confucian Classics have been the subject of endless interpretation and

reinterpretation by both philosophers and the ruling elites in China Views on and attitudes

towards the governance of society and law within one school of thought are often as diverse as

those between different schools of philosophy In this sense the term lsquoConfucianismrsquo is perhaps

quite misleading (p 4) 45 Liji (Code of Rites 禮記) (Western Zhou Dynasty c 900-771 BC) became the basis for

Confucianism


Chrsquou (1961) also noted that although legalists ldquodid not deny the reality of social

differentiation they made no attempt to distinguish people in different social statusrdquo

(p 242) Instead they advocated ldquoa uniform law a uniform reward and punishmentrdquo

(Ibid) In analyzing the criminal law of Qinluuml (秦律) which best reflected the thought

of legalism Liu (1998) remarked

[In] hellip analysis of the criminal law of Qin this is of great significance since it was upon this basis

that the Qin Lu divided crimes into two basic categories namely gong shi gao (official

denunciation) and fei gong shi gao (unofficial denunciation)(p 226)46

It is interesting to note that such a division of crimes was made on the basis of

the individual family at that time the basic unit of society Liu explained that ldquowhere

anyone who intentionally infringed upon the rights of person and property of people

who were not members of his own household it would be treated as a case of official

denunciationrdquo and vice versa (p 226) Different punishments were meted out

according to the above two kinds of offences In this regard Confucianists strongly

objected to the emphasis on severe punishment for maintaining social order

Confucianists instead promoted Shangang (三綱) and Wulun (五倫) which can be

translated as ldquothree bondsrdquo and ldquofive human relationshipsrdquo (Chrsquou 1961 pp

236-37)47 In conclusion ldquothe dispute between Confucianism and Legalism was more

46 As a primary Legalist (Fa Jia) code the Qin Lu (Qin Code) framed by Shang Yang (c 300 BC)

institutes uniform rules for social behavior and attempts impartial rewards and punishment Harsh

punishments were based on lianzuo (linked seats) idea of punishing clan members friends and

associates in addition to the perpetrator 47 As for the three bonds and five human relationships Chrsquou (1961) explained

hellip the five human relationships are but concrete types of reciprocal relationships derived from

the more general categories of ldquonoble and humblerdquo ldquosuperior and inferiorrdquo ldquoelder and youngerrdquo

ldquonear and remoterdquohellipThe first three relationships have also been called Sang-Kang the ldquothree

bondsrdquo by Han scholars (pp 236-37)


than philosophical contention it was a political struggle for supremacy and

domination in state ideology and hence state politicsrdquo (Chen 1999 p 12)

We can see now that the substantive expression of the legal culture of traditional

Chinese law is the conceptual thinking of traditional Chinese philosophies manifested

in Confucianism and Legalism As a result the concepts of li (ldquomoralityrdquo represented

by Confucianism) and xing (ldquopunishmentrdquo represented by Legalism) were intertwined

in codified traditional Chinese laws Compared with the legal culture of the common

law the legal culture of traditional Chinese law exhibits three distinctive features

First there are no such common law concepts as ldquorightsrdquo and ldquorule of lawrdquo in

traditional Chinese law the legal concepts and principles of which are mainly

philosophical in nature In comparing traditional Chinese law with the English law

Gu (2006) pointed out

While the conceptual division of abstract and concrete law transformed English law from an

administrative into a ldquolegalrdquo practice the lack of an abstract concept of rights and the transmutable

boundaries of original legal meanings determined the administrative features of Islamic and

Chinese law (p 4)

Secondly traditional Chinese law did not develop a system of precedents such as are

found in the common law Alford (1995) gives an explanation for this

Contrary to what one might initially expect the imperial Chinese legal system did not adhere to a

formal system of binding precedent although in fact magistrates and other officials involved with

the law did draw on compilations of prior cases as they reached and sought to justify their

decisions But on reflection the absence of binding precedent may actually have connoted an even


greater embracing of the pastmdashas the Confucian morality and wisdom of the ages that officials

were assumed to have cultivated in preparing for and taking the imperial examinations were surely

seen as a truer and more historically valid guide for making decisions than any set of rules

formulated or cases resolved by onersquos predecessors in office (p 22)

The prevailing philosophy of Confucianism thus became a hindrance for the

development of legal professionals and the system of binding precedents Despite the

fact that there was a large body of codified laws in traditional Chinese society it was

by no means a legally oriented society

Thirdly given its penal emphasis traditional Chinese law did not pay attention to

matters of a civil nature eg contracts property rights inheritance marriage etc

The legal system was made to serve state interests not to protect individual rights or

to resolve disputes among individuals ldquoThe Chinese neither saw public positive law

as the defining focus of social nor divided it into distinct categories of civil and

criminalrdquo (Alfrod 1995 p 10) As a result the civil law concepts and principles of

the common law are mostly absent in the Chinese language As for criminal law the

difference between traditional Chinese law and the common law is enormous

Though modern Chinese law refers to the law operating in China after the fall of

the last imperial dynasty there were attempts at legal reform in the late Qing dynasty

which had considerable impact on the social and economic development of early

modern China Chen (1999) called the late Qing reform ldquothe westernization of

Chinese lawrdquo since the pressure for reforming traditional values and systems led to the

introduction of ldquowestern economic cultural and political ideasrdquo by the late 19th

century (pp 17-18) The reform was conducted in two stages Chen (1999) notes


The first stage was to revise the old law with its focus on abolishing the cruel punishments which

then existed hellip the second-stage reform the making of new codes in line with Western laws was

carried out almost simultaneously hellip(p20)

Besides the focus on the reform of criminal law some elements of civil law were

beginning to take shape in China In 1901 the first Chinese company law became

effective introducing ldquothe idea of limited liabilityrdquo and it ldquotook a highly supportive

approach toward entrepreneurial endeavourrdquo (Alfrod 1995 p 48)

The revolution led by Sun Yatsen overthrew the regime of the Qing dynasty and

a Republican government was established in 1912 Legal reform which Chen (1999)

called ldquothe modernzation of Chinese lawrdquo was continued (p 23) The reform was

guided by ldquothree Principles of the PeoplemdashNationalism (minzhu) Democracy

(minquan) and Peoplersquos Livelihood (mingsheng)rdquo (p24) Compared with the Qing

reform the legislation of the Republican government took the Chinese traditions and

customs into consideration in ldquoadopting and adapting Western legal doctrines and

institutionsrdquo (p 28)48

The PRCrsquos legal system was built on the model of Soviet socialist law which

was much closer in form to the legal systems of continental Europe than to the

Common Law with considerable modifications in accordance with Marxist ideology

During the 1950s a large body of laws was comprehensively codified under Maorsquos

48 Chen (1999) holds that law reform of Republican government was more progressive compared with

the Qing reform He remarks

Besides its conservative approach to family and succession matters the Qing reform largely failed

to preserve certain ancient and deep-rooted customs such as the civil law institutions of Yung-tien

(a long-term lease) and Dien (a kind of usufructuary mortgage) (pp 27-28)


leadership Chen (1999) noted that PRC law experienced another stage of

development under Dengrsquos leadership especially since 1992 when ldquothe Party adopted

the notions of a ldquosocialist market economyrdquo and ldquoassimilation or harmonization with

international practicerdquo (p 49) With the codification of a series of laws such as the

Company Law (1993) the Foreign Trade Law (1994) the Insurance Law (1995) the

PRC legal system underwent many changes in keeping with international practice

Chen remarks

Taxation law joint venture laws intellectual property protection law and most recently the

Criminal Procedure Law and the Criminal Law have all undergone major revisions Further

China has now ratified a large number of international conventions dealing with international

economic relations especially intellectual property protection Thus Western scholars now find

familiar language in Chinese law since Chinese law in its forms structure and methodologies

has become unmistakably Western (p 55)

Paler (2005) also agrees that decades of legal reform of the PRC law represent ldquoa

significant attempt to produce a more orderly and open legislative system in Chinardquo a

modern legal system of legal rules that support its emerging market economy (p 302)

There are three major features of the legal culture of modern Chinese law compared

with that of the Common Law First the notion of rule of law which is a foundational

concept in the Common Law is something of an imported idea in modern Chinese

law and the same term carries a rather different meaning in the two different legal

cultures The legal principles and concepts are derived from the legislation which is

the primary source of law Secondly modern Chinese law modelled on the civil law

system shares the characteristics of the civil law system rather than those of the


common law49 In particular the basic principles and concepts of criminal law in

modern Chinese law are substantially different from those in the common law

Thirdly with the progress of legal reform certain branches of law including company

law insurance law and trade law show similarities with elements of the Common

Law We shall see that the feature of the PRC legal system is fundamentally socialist

but with a newly developed modern economic legal framework Despite the fact that

many of the basic principles and concepts in modern Chinese law are substantially

different from those of the common law borrowing from other legal systems and

transfer of foreign laws into China are both features of traditional and modern Chinese

law In the next chapter therefore we will investigate the transfer of the legal culture

of foreign laws into China since this can shed light on the translation of the common

law into Chinese

49 David amp Cohan (1985) gave two major reasons for this First it was attributed to the Europeanization

of China between the 19th and 20th centuries The other is the fact that the PRC had inherited the

Chinese legal tradition where the statutes or codes were highly valued throughout the imperial period

ie from the Qin Dynasty to the Qing Dynasty

Chapter 4

The Transfer of Legal Culture

41 Legal Transplant and the Transfer of Legal Culture

411 Introduction

We have noted that legal culture ie the conceptual thinking shared by legal

professionals is an essential yet inseparable component of any legal system The

transfer of legal culture can take place when the law of one country is moved to

another or when two legal systems come into contact Transposition of law from one

society to another is generally known as legal transplant While this is an extensively

researched area in comparative law in recent years legal transplant is as old as the law

itself Earlier legal transplants such as the transposition of Roman laws to Europe

offer a well-known example (Watson 1974) Since transplantation involves the

transfer of the conceptual thinking of the imported law legal transplant often brings

about a transfer of legal culture We will examine the relationship between legal

transplant and legal translation the causes of legal transplant and its role in the

transfer of legal culture In so doing we hope to arrive at a better understanding of the

theoretical background surrounding the transfer of legal culture in legal translation

Watson (1974) the founding scholar in modern legal transplant theory

described it as ldquothe moving of a rule or system of law from one country to another or

from one people to anotherrdquo (p 21) Watson identified legal transplant with legal

THE TRANSFER OF LEGAL CULTURE 90

borrowing and argued that the phenomena of legal transplant had ldquobeen common

since the earlier recorded historyrdquo (p21) According to Watson the object of legal

transplant is rules By ldquorulesrdquo he meant not just statutory rules but also institutions

legal concepts and structures (2001a)50 Watson held that legal borrowing can take

place between societies with very different political social economic and religious

conditions and that usually the borrowing is from the more developed and complex

system (2001b p 215)51 In analyzing Watsonrsquos concept of legal transplant Cottrrell

(2001) held that comparative legal history is the primary tool of legal research and

borrowing is usually the major element in legal change (p 71) 52

Legrand (2001) disagreed with Watsonrsquos definition of legal transplant however

contending that Watson reduced it to the movement of ldquorulesmdashwhich are usually not

defined but which are conventionally taken to mean legislated texts and though less

peremptorily judicial decisionsrdquo (pp 55-56) He argued that legal transplant was in

essence impossible since ldquowhat can be displaced from one jurisdiction to another is

literally a meaningless form of wordsrdquo (p 63) Cottrrell (2001) agreed with Legrandrsquos

criticism remarking

50 Watson Alan ldquoLegal transplant and European Private Lawrdquo Ius Commune Lectures on European

Private Law 2 (electronic version) Dutch Institute of Comparative Law

(httpwwwejclorg44art44-2html accessed on March 15 2008) 51 Watson also pointed out that law in writing was an obvious source for borrowing the reception of

Roman law (and of canon law) in Western Europe and the success of the Sachsenspiegel in medieval

Germany of the French code civil in Europe and Latin America are all powerful examples (2001b

p215) 52 Cottrrell (2001) summarized Watsonrsquos views thus firstly transplantation of legal rules between

legal systems was a principal explanation for the growth of law secondly social need was not the

decisive force in legal development thirdly legal changes were largely controlled by the internal legal

professional elites fourthly legal rules survived over long periods despite significant variation in the

social context on which they operate fifthly the development of some important bodies of law was

largely the result of legal history (pp71-72)


hellip an emphasis on legal culture may highlight the difficulty or even impossibility of transplants

since a legal culture is not easily replaced by a different one and legal rules are understood in

relation to legal cultures (2001 p78)

As noted in section 312 Cotterrell (1997) rejected the concept of legal culture

and proposed to replace it with the term ldquolegal ideologyrdquo He was thus naturally

opposed to the concept of legal transplant since this hinged largely on a proper

definition of legal culture Watson (2001) however refuted Legrandrsquos view

hellip I believe I have shown that massive successful borrowing is commonplace in law hellip Legal

borrowing I would equate with the notion of legal transplant I find it difficult to imagine that

anyone would deny that legal borrowing is of enormous importance in legal development

Likewise I find it hard to imagine that anyone would believe that the borrowed rule would

operate in exactly the way it did in its other home hellip I have continually over more than a quarter

of a century insisted that what are borrowed and can be borrowed are legal rules principles

institutions and even structure (2001 pp 23-24)

In characterizing the relationship between legal tradition and legal culture for

the development of his legal transplant theory Watson (1991) remarked

The answers for understanding the nature of law and its place in society can only be found in the

legal tradition and legal culture (p 4)

We shall see that Cotterrellrsquos dismissal of the concepts of legal culture and legal

transplant is not convincing Just as legal rules should be understood as an element of

legal culture the concept of legal culture should be understood as an indispensable


component in legal transplant Though Watson may well not have defined legal

culture he did consider it as the basis for understanding the nature of law and legal

transplant Since we define legal culture in this study as the conceptual thinking of

legal professionals of which legal rules are an integral part it is fair to say that legal

rules are also an inseparable part of legal culture and thus of legal transplant Though

legal transplants may not always be viable we can not simply dismiss them as

impossible History and a fair part of comparative law studies show that legal

transplants have indeed taken place

412 Legal Transplant Legal Imposition and Legal Translation

Legal transplant takes place for many reasons such as authority prestige

political and economic incentives and may take different forms in different countries

In an attempt to explain the phenomenon Sacco (1991) remarked

There are two fundamental causes of imitation (ie legal transplantation) imposition and

prestige Every culture that has faith in itself tends to spread its own institutions Anyone with

the power to do so tends to impose his own upon others Receptions due to pure force however

are reversible and end when the force is removed (p 398)

Likewise Bercowitz (2001) observed that ldquosome legal transplants were imposed

during occupation others were part of a voluntary reform process initiated by the law

receiving countryrdquo (p 8) A fairly wholesale transplantation of legal systems is

possible during an occupation even without any translation of the imported law into

the indigenous language However legal translation is usually the major conduit of


legal transplant in the case of legal reform in the receiving country Therefore we

classify legal transplants into two kinds in this study legal imposition at the

socio-political level and legal translation at the socio-linguistic level

Comparative legal scholars have carried out extensive studies on the imposition

of law since the importation of foreign legal systems is widespread and poses

important theoretical problems In search of a definition of legal imposition

Lloyd-Bostock (1979) distinguished between ldquoexternally imposed law and law that

accords with internalized normsrdquo (p 10) She remarked

hellip externally imposed law would include cases ranging from particular instances of law within

an established legal system to the importation of an entire legal system form another culture It is

debatable whether a definition of imposed law should introduce further distinctions between

types of cases but there can be no doubt that explanation of compliance will need to take

account of the wider context in which law has been imposed (p 10)

Lloyd-Bostock opined that looking into the compliance with imposed law would be

an effective way of understanding the social consequences of legal imposition In

seeking to define the term legal imposition Okoth-Ogendo (1979) observed that ldquothe

use of that phrase might imply concern merely with the normative and institutional

legacies of colonialismrdquo (p 147) However his own view was that legal imposition

encompassed ldquoany situation where fundamental change is contemplated in society

through the medium of laws or legal institutions whose content is clearly contrary to

the perceived and accepted normative order of those whose behaviour it seeks to

regulate or changerdquo (p 147) From this perspective legal imposition resulting from

colonialism always gives rise to socio-political change in the society that receives the


law Okoth-Ogendo went on to make an in-depth study of the imposition of English

property law in Kenya pointing out that ldquolegal imposition is a rampant practice in

Africardquo and that the ldquoimposition of law can be seen as an expression of dependency

relations between the Third-World (the periphery) and industrialized nations (the

metropolitan centres)rdquo (p 148)

In similar vein Kidder (1979) pointed out that ldquothe prototype of imposed law as

it seems most generally to be understood is the colonial situation where legal systems

are imposed from dominant cultures and forced on indigenous populationsrdquo (p 289)

A case in point is the imposition of common law in British colonies in South East

Asia Accompanied by nineteenth-century colonialism the imposed law radically

reshaped and pluralized the law of much of Africa Asia and the Pacific The research

of Harding (2001) provides a thorough description of legal transplant in South East

Asia where the imposed law survived Following the lead of Watson and other

likeminded scholars he remarked

hellip law in South East Asia has evolved out of legal transplantation which has on the whole

been successful if judged by the criterion of whether the law has stuck or come unstuck In

South East Asia the idea that the history of a system of law is largely a history of borrowing of

legal materials from other legal systems as maintained by Watson Pound and others is proved

remarkably accurate (p213)

The wholesale transplant of the common law system in Southeast Asia also includes

the case of Hong Kong since English law was imposed on Hong Kong after 1843 In

the case of Hong Kong the legal transplant met with a rather benign reception and as


Epstein (1989) noted there was little interaction between Hong Kongrsquos legal system

and the laws of the Chinese Mainland after colonization He remarked

For a century and a half British colonial rule has insulated Hong Kongrsquos legal system from law

and legal change on the Chinese mainland Although early provision was made for the

application of Qing dynasty law in Hong Kong in practice the Qing codes had little if any

impact in Hong Kong after 1841 and even the role of customary law has been restricted to

family matters and land tenure in the New Territories (quoted in Wacks 1989 p 38)

Wesley-Smith (1994) held a different view with regard to the influence of

Chinese customary law however In the process of legal transplant colonial officials

typically endeavoured to eliminate customs they considered repugnant such as

polygamy payback killings suttee and many other kinds of practices they considered

uncivilized Yet customary laws continued to have some effect both in Hong Kong

and many other countries53 Wesley-Smith noted that ldquolsquoChinese law and customrsquo

despite its decline as a source of lawmdashmuch of it was abolished prospectively in

1971mdashstill plays an important role in modern Hong Kongrdquo (p 205) In the process of

legal imposition conflicts often emerge between the indigenous and the imposed law

although as already noted the imposition of the common law on Hong Kong was a

fairly well received legal transplant with the imposed law meeting little resistance

when it began to regulate the behaviour of the indigenous inhabitants However the

legal culture ie conceptual thinking about the common law could reside only in the

minds of legal professionals before the common law was translated into Chinese The 53 Harding (2001) gave an example from Singapore where the famous case known as the Six Widows

Case tried by the colonial court raised a crucial question of what kind of law was to be applied in cases

involving local custom the common law or the customary law The court finally decided the case

according to the Chinese polygamous marriage custom (p 210)


transfer of the legal culture related to the imposed law can only fully effected until the

conceptual thinking of the imposed law is translated into the indigenous language and

made accessible to local laypeople

Legal translation as a form of legal transplant always involves the transfer of

the legal culture of the translated law at the socio-linguistic level It takes place when

a country or region borrows the legal system of another usually accompanied with

massive translation of the imported law Through legal translation the concepts of the

foreign law are introduced to the indigenous people Compared with legal imposition

legal translation as a form of legal transplant is a more fruitful way of transplanting

legal systems and transferring foreign legal culture since it imports the underlying

legal concepts into the indigenous language As Zhang (2003) pointed out legal

transplant by translation is the most common phenomenon in the course of legal

development in many countries Its history can be traced to the Old Roman Period (p

9) After the medieval period many western European countries such as France

Germany transplanted the Roman codes by way of translation In modern times many

Asian African and American countries have transplanted the laws of western

countries (p 9) Japanrsquos legal development also illustrates how the improvement and

modernization of one statersquos law may occur by way of translation During the Meiji

period there was massive translation of continental European laws into Japanese and

their reception took place in a completely non-European cultural juridical and

religious context

As noted in section 21 translation as cultural transfer usually requires that a

choice is first made between two basic translation strategies namely domestication

and foreignization through which the cultural concepts of SL may either remain


un-transferred or be transferred Cultural transfer as domestication may result in

cultural appropriation to which Merry (1998) gave an explanation

The concept defines culture as contested historically changing and subject to redefinition in

multiple and overlapping social fields It emphasizes continual transformations in the meaning

and structure of law rather than any notion that law is embedded in a homogeneous and shared

culture It incorporates the possibility of resistance while recognizing that resistant practices

involve actions that appear to be accommodation and adaptation Changing the way culture is

conceived makes it possible to reimagine the relationship between law and culture Processes of

legal transplantation imposition and borrowing widespread during nineteenth-century

colonialism and contemporary globalization are central sites for examining this relationship

(1998 p 603)

Cultural appropriation can be seen as the resistance to the imported culture which is

changed in form and substance becoming mixed with the indigenous culture Cultural

transfer as domestication contrasts quite sharply with cultural transfer as

foreignization where the target culture accommodates the alien concepts and adapts

to the foreign culture

Legal translation as foreignization necessitates the assimilation of the legal

concepts of foreign laws as is the case with legal transplants in China China has a

long history of legal transplants dating back to the Late Qing dynasty when China

transplanted the German system of civil law Next Japans legal experience exerted

great linguistic and practical influence on Chinas reception of civil law before 1949

Moreover China transplanted the Soviet Unionrsquos legal ideas after 1949 The history


of legal transplants in China can usefully elucidate the role that legal translation has

played

42 Transfer of the Legal Culture of Foreign Laws in China

421 Transplant of Foreign Laws since the Late Qing Dynasty in China

The introduction and translation of foreign legal texts into Chinese started since

the Late Qing period The systematic introduction of Western laws together with other

Western sciences commenced with the establishment of Tongwenguan in 186254 In

the Late Qing Dynasty the transformation of social relations demanded a new social

order Zhang (2003) notes how in the early 20th century when the Qing Code was still

in effect the Qing government decided to reform the law and transplant Western legal

principles into China (p 8) Legal translation played a significant role from 1896 to

1936 during which period legal concepts and legal principles of Western laws were

transplanted into traditional Chinese law thus laying the foundations for modern

Chinese Law

Meijer (1976) carried out a comprehensive research into the revision of criminal

codes in the Late Qing period The Qing government established the bureau for the

compilation of laws in 1901 and it set to work ldquotranslating foreign codes of Criminal 54 It is generally assumed that international law and the relevant vocabulary was introduced in China

mainly after the Japanese influence early this century Several other texts on international law were

however translated into Chinese between 1864 and the turn of the century Some of these were

translated by Martin and published by Tongwenguan such as Theodore Dwight Woolseys Introduction

to the Study of International Law (1877) and William Edward Halls A Treatise on International Law

(1903) (Svarverud 1998)


Law and Criminal Procedurerdquo in 1904 (pp 9-11)55 During the law reform period ie

from 1901 to 1907 legal concepts and models were imported from Japan Germany

and other continental countries56 According to Meijer (1976) Shen Jiaben one of

the most important figures in the legal reform of the Late Qing Dynasty was

appointed in 1904 as one of the Commissioners (Xiuding Faluuml Dacheg 修訂法律大

臣) responsible for the Office of Codification (Faluuml Bianzhuan Guan 法律編纂館) (p

11) As the leader of the team of translators translating the foreign laws into Chinese

he held that the success of legal reform depended on the translation of the foreign

laws57 The criminal laws and criminal procedures of the civil law system were

studied and translated58 There were two main reasons for modelling the new law on

the continental legal system One was that the continental system inherited

ldquosomething of the old Roman Familiardquo which was similar to the focus of familism in

traditional Chinese society while ldquoAnglo-American Law emphasizes the individual as

against the familyrdquo (p 22) The other reason was that ldquothe concept of state authority

55 Meijer (1976) made a survey of important revisions on the old law which included the ldquosubstitution

of penal servitude for banishment the abolishment for torture and corporal punishment and abrogation

of some severe punishmentrdquo (pp19-37) 56 Chen (1999) noted that ldquoa constitutional reform which aimed at transforming the autocratic empire

into a constitutional monarchy was also begunrdquo (p19) Japanese model was then adopted and ldquoa series

of edicts concerning the establishment of constitutional government and a series of constitutional

projects and documents were issued by the Thronerdquo (p19) 57 According to Zhang (2003) a total of 180 books of foreign laws were translation into Chinese

among which there were 123 law books from Japan 29 from Britain 18 from America 18 from

German 11 from France 2 from Netherland 4 from Sweden 1 from Finland 2 from Russia and 1

from Mexico 58 In relation to the revised law Meijer (1976) noted

They did not only carry out some of the suggestionshellipas eg the change of beating with the

bamboo into fines and the abolition of torture they went further and obtained the abolition of the

cruel ways of capital punishment branding and collective responsibility in criminal matters the

abrogation of three hundred and forty four articles of the standard rules and the change of formal

capital punishment into penal servitude for some cases of homicide (p12)


over its citizens as inherited from Roman Law also fitted well into the ultimate goals

of the legal reform to secure the emperorrsquos position permanently to alleviate foreign

aggression and to quell internal disturbancerdquo (p 22)

Apart from criminal law legal concepts of civil law in Western countries were

also transplanted into China from the Late Qing period on Meijer pointed out that

ldquoapart from the field of Criminal Law the Committee for the Compilation of the Laws

also produced a draft for the Bankruptcy Law and the well-known draft for the new

Law of Judicial Procedure both on the 24th of April 1906rdquo (1950 p 31) In his study

on Chinarsquos reception of concepts and elements of Western private law Epstein (1998)

also holds that ldquoforeign influences on Chinese Civil Law are broad and deeprdquo and he

seeks to ldquoillustrate a number of important features of Chinas reception of Western

legal conceptsrdquo (p 154) The history of Chinarsquos reception of Western civil law began

when the ldquoQing imperial government first attempted to transplant Western civil codes

into China at the turn of this centuryrdquo and ldquothe first successful codification of Chinese

Civil Law was promulgated by the Nationalist government between 1929 and 1930rdquo

(Epstein p 153)59 After 1949 China adopted the legal concept of the Soviet Union

that all law is public law deciding ldquoquite literally to banish the words lsquoprivate lawrsquo

from its legal vocabularyrdquo ldquoa textbook on economic law published in Moscow in

1977 was translated and republished in China in December 1980rdquo which ldquomarked the

59 In explaining Chinarsquos borrowing of Civil Law concepts from the west Epstein remarked

The distinction between criminal and Civil Law was first borrowed from the West during the Qing

codifications It was drawn first in procedural law n45 and finally in substantive law by

designating that the civil provisions in the revised Qing Code (Xianxing Xingluuml) of 1910 should

not be subject to punishments Thereafter China adopted the Japanese pattern of Six Laws which

clearly distinguished between private and public civil and Criminal Laws Despite the influence of

Soviet jurisprudence after 1949 the distinction has survived in substance if not in form in the

PRC (1998 p162)


second reception of Soviet legal doctrine into Chinardquo (p 164) During the whole

process of legal transplant since the Late Qing Dynasty China adopted legal concepts

mainly from Germany and the Soviet Union and these set the standard for its legal

codifications This also explains why Chinese law is characterized by civil law

traditions After Chinarsquos economic reform in the late 1970s legal transplant by way of

translation was even more visible Suli (2004) remarks

Since the implementation of lsquoOpen and Reformrsquo in China in 1978 the translation of legal works

has been an important part of developments of the Chinese Law Most active legal scholars of

today have in certain stages of their academic careers translated some works or benefited from

the translation of legal works either directly or indirectly hellip Almost no scholar is totally free

from impacts of foreign laws hellip In this sense the legal science of China of today is basically the

result of legal transplants and the transplants have proved to be successful on the whole (p 97)

The Company Law of the PRC (1993) is a major example of continuing

transplant from Western laws among which Americarsquos corporate law was then a

prime source The profound effect of legal transplant on the development of the

Chinese law can be identified from at least two aspects One is the transplanted legal

concepts and legal principles of the civil law system which underlies Chinese law

The other is the analytical tools which have long been used in Chinas adopted civil

law doctrines to guide legislative drafting and which have in part become embodied

and embedded in the law In explaining Chinarsquos legal transplant and the interplay with

its legal culture60 Potter (2004) remarked that ldquoChinarsquos legal reform effort also

60 Concerning Friedmanrsquos definition of legal culture Potter (2004) remarked


depends to a significant extent on dynamics of legal culturerdquo hellip thus analysis of

Chinarsquos legal culture would permit ldquohellip appreciation of the tensions between the

globalized systems of liberal legal norms from which many of Chinarsquos legal reform

efforts are drawn and deeply embedded systems of local norms and values (pp

474-75)61 In other words in the process of legal transplant Chinarsquos local legal norms

adapted selectively to foreign legal norms which were finding their way into Chinarsquos

legal culture Given Chinarsquos long history of legal transplant by way of translation it is

thus meaningful to enquire which aspects of the legal cultures of foreign laws have

been transferred in what form they have been transferred and in what way legal

translation could account for the successful transfer of the legal culture of foreign

laws

Legal culture maybe defined by reference to discourses of sociology and political science in terms

of customs values and opinions and ways of thought and behavior (Friedman 1975 15 Ehrmann

1976 Glendon 1985 Varga 1992) (p474)

However his perspective was ldquoto focus legal culture as a basis for understanding the relationship

between imported and local norms (Potter 2003b)rdquo (p474) 61 Potter (2004) argued that foreign laws especially international laws were transplanted into China It

was easy to assume that those laws with its familiar appearance had no difference with their originals

However it was not always the case He noted

Lubman and Peerenboom both remind students of the Chinese Law not to confuse what appear

to be familiar institutional forms in the operation of the Chinese legal regime with the

acceptance of related international norms As we struggle to understand the conflicted interplay

between imported legal forms and local legal norms ideas about selective adaptation and

attendant features of perception complementarity and legitimacy offer potentially useful

perspective form whence to proceed (p486)



As noted in section 22 of chapter 2 legal translation that seeks to transplant

cultural concepts specific to the original legal system is a good example of cultural

transfer as foreignization A case in point is the legal translation in the Late Qing

Dynasty in China which we have just sketched out We will now look at how the

foreign laws were translated during this period and the approach to translation that

was taken Shen Jia-ben had already observed that when Japan translated Western

laws semantic translation was initially adopted However the great number of

mistranslations that occurred had led to the eventual adoption of literal translation In

the case of China the task of translation was far more difficult since there were no

legal terms to express the legal concepts of Western laws Shen thus asked the

translators to strive for fidelity and fluency in translating the criminal laws of France

Germany Russia and Japan (Zhang p 180)62 For example when learning from the

criminal laws of other countries Shen strove to propagate the idea of a ldquolightrdquo

(xingqing) response to crimes by condemning the traditional punishment inflicted on

prisoners such as dismemberment or decapitation followed by the displaying of the

victimrsquos head in public63 We can see that when striving for fidelity to the foreign

62 Zhang (2003) held that legal translation was a very important channel for importing the legal

concepts of Western law into China She quoted Shen Jiaben as follows

參酌各國法律首重翻譯而譯書以法律為最難語意之緩急輕重記述之詳略偏全決

策為精訛立見從前日本譯述西洋各國法律多尚意譯後因訛誤改歸直譯中國名詞

未定移譯更不易言臣深慮失實務令譯員力求信達hellip (p 180) 63 In explaining how the translators deal with the terminological problem in the translation Meijer

(1950) also noted

hellipThe first deals with the term fa-hsing 罰刑 fine which the committee wanted to be changed

into fa-chin 罰金 on historical and logical grounds The first term means punishment of fine

but he word fa may also denote punishment so that the term might become meaningless the


laws Shen wished to achieve conceptual semantic equivalence by adopting literal

translation instead of semantic translation which would result in creating new legal

terms in Chinese In such ways were linguistic adjustments made when transferring

the legal concepts of foreign laws into Chinese

As noted in section 222 of chapter 2 whenever a culture is transferred from one

language to another there is also a need for conceptual adjustment which invariably

results in the foreignization of the importing language Regarding this Meijer gave a

thoughtful account in his researching into the memorials written by Shen He

remarked

With the memorials Shen Chia-ben introduced a new criminal code in China A code based on

foreign concepts most which were alien to Chinese thought or which had in the course of history

been discarded as unsuitable for Chinese society The memorials are not a theoretical explanation

of the philosophical back-ground of a new law they are presented as remarks on the revision of

some of the principles of an existing law by borrowing from foreign law hellip Formerly the law was

according to the most accepted doctrine an auxiliary to education It was essentially a part of

ethics it derived its force from the moral code and served as a model for the judge being a

directive for the maintenance of the natural ordermdashtao The new law however reposed on totally

different concepts The law now became a set of rules given by the state in its capacity of keeper

of the public peace and order punishing any acts which were contraries to the minimum

standards of conduct required for an orderly society An offence now became officially an

offence only because the objective Criminal Law forbad it Violators of moral laws were no

second term is more specific meaning punishment-money taking fa in the meaning of

punishmentrdquo (p 52)


longer interfered with as long as they stayed within the limits of the Criminal Lawrdquo (1950 pp

70-71)

Meijer here suggests that cultural transfer takes place on the metalinguistic level

rather than via a theoretical explanation of the philosophy behind the new laws

However it can be conceded that such a background still provides a theoretical

framework and working principles for transferring the legal culture of the foreign law

In other words we can understand foreign legal concepts by studying the extent to

which the memorials of Shen (and his colleagues) are explicit about what the newly

coined Chinese legal terms stand for and how they relate to the original legal system

For example Shen distinguished between criminal and civil affairs It ldquowas

established in the memorial asking for permission to print the code of 1910 The

distinction was based on the principle of Shen Chia-benrsquos Draft of the Code governing

Civil and Criminal Procedure of 1906 art 2 and 3 (cf p 43) but somewhat more

elaborated and preacutecisedrdquo (Mejier 1950 p 53) Therefore the memorials serve as an

important metalanguage for transferring the legal culture of the foreign laws

If we recall the discussion of Evans-Pritchardrsquos translation of Azande in section

223 of chapter 2 we shall be reminded that cultural transfer must be effected at the

metalinguistic level As can be seen from Chinarsquos long history of legal transplant by

way of translation the legal concepts and legal principles of foreign laws have been

transferred into Chinese This also shows that successful transfer of the legal culture

of foreign laws requires adjustments to be made in the target translation language and

must involve conceptual transfer at the metalinguistic level

Chapter 5

The Language of the Common Law

51 The Translatability of the Common Law

As we noted in section 412 of chapter 4 legal transplant in Hong Kong has

taken the forms of political imposition and legal translation the former as a result of

colonization and the latter after the recovery of sovereignty by China64 Wesley-Smith

(1993) gave a detailed account of how English law was imported to Hong Kong after

it became a British colony He noted

One of the first things to be done therefore was to introduce English law into Hong Kong At

one stroke was thus imported a comprehensive collection of rules principles standards and

concepts appropriate for the trading post Britain had established From 1846 to 1966 the

formula by which English law was received into Hong Kong applied all the laws of England

which existed on 5 April 1843 the day Hong Kong obtained a local legislature (p 33)

Despite the controversy over the applicability of the common law it was kept up to

date by constant legislative reception Wesley-Smith rightly pointed out which aspects

64 The Department of Justice explained why legal bilingualism had to be launched in Hong Kong as

follows

In keeping with the Basic Laws provisions on bilingualism all legislation in Hong Kong is enacted in

both Chinese and English and both versions are accorded equal status Thanks to the bilingual

legislation programme begun in 1989 authentic Chinese texts have been completed of all pre-existing

legislation which had been enacted in the English language only and Hong Kongs statute book is now

entirely bilingual ( httpwwwdojgovhkenglegalindexhtm accessed on September 2 2007)

THE LANGUAGE OF THE COMMON LAW 107

of English law were imported into Hong Kong ie the rules principles and concepts

which constitute the substantive contents of the legal culture of the common law as

described in chapter 3 As a matter of fact these rules principles and concepts of

English law had been imposed on the operating legal system in Hong Kong long

before the law was translated into Chinese65 The decision to translate the common

law into Chinese signified a yet deeper transplant of the common law into Chinese

culture this time by way of legal translation instead of political imposition The task

of translating the laws of Hong Kong into Chinese was completed in a timely manner

by May 1997 However the accomplishment of this mammoth task has not ended the

controversy over the translatability of the common law into Chinese In researching

the translation of the common law into French Nguessan (1995) realized that the

terms and concepts of the common law were specific to that system itself and asked

ldquoIf such is the case how is it possible to transfer the law from one language to another

if those two languages express the law of two different countriesrdquo (p iii) [] But as

we have pointed out in chapter 2 this is not the case with the translation of the

common law into Chinese This translation was carried out within the same common

law jurisdiction of Hong Kong and therefore the question of one language expressing

the law of two different jurisdictions simply did not arise The question with which

Hong Kong was and is faced is purely a question of translation namely ldquoIs it possible

to translate the law of one language into another If so howrdquo

65 As for the application of the common law to Hong Kong Wesley-Smith noted

In effect the cut-off date of 5 April 1843 applied in respect of statutes all Acts contained in the

English statute book on that day provided they were general and not purely local in nature and

were not suited to the circumstances of Hong Kong or of its inhabitants were automatically in

force in Hong Kong (1993 p 33)


As far as the first question is concerned critics of the bilingual legislation in

Hong Kong were suspicious of the very possibility of translating the common law

especially its terminology into Chinese One common misconception is to regard

English as the only language suited to express the concepts of the common law and

thus reject the possibility of translating the English common law into Chinese Ujejski

(1989) subscribing to Whorfrsquos theory of linguistic relativity expressed his deep

concern about the future of English language in Hong Kong law He remarked

If as Whorff claimed language and thought are inextricably linked and if language including

legal language is indeed a reflection of a culturally based lsquoconceptual realityrsquo we may need

seriously to consider what effects cultural differences may have on the future of the Common

Law in Hong Kong and thus on the language of the law in Hong Kong (p 183)66

For Ujejski the crux of the issue lay in the ldquocultural-philosophical gaprdquo between the

English common law and the Chinese language67 It is true that the linguistic and

66 Contending that it would be impossible to translate the English Common Law into Chinese Ujejski

quoted Cuthbertrsquos following remarks to support his argument

The institution of law in Hong Kong combines a system of rules with a system of institutions

derived from England In the historical evolution of English law philosophical moral and

ethical percepts cannot be abstracted from linguistic structure cultural values and forms of

human behavior Its roots can be traced back to ancient Greece and writings of Plato and

Aristotle Concepts such as lsquotruthrsquo lsquomoralityrsquo lsquoresponsibilityrsquo and lsquocrimersquo are locked both

into precept and language But in 1997 this entire cultural world view will be changed

Although the technology of charters and joint agreements will attempt to operate

homeostatically between the two value systems (capitalist and socialist) the Chinese

population of Hong Kong is already lsquoreality-compromisedrsquo since its semantic and conceptual

vocabularies are rooted to Chinese tradition custom and beliefs It is therefore difficult to

envisage how the present legal system and with it the institutions it supports can possibly

remain in even a fragment of its original state (p 183) 67 Ujejski quoted Michael Thomas a former Attorney General of Hong Kong who expressed a similar

view


cultural differences between English and Chinese pose great difficulties in translating

the English common law into Chinese However constraints in translation do not

amount to the untranslatability of the common law In refuting those who upheld the

untranslatability of the common law for reasons based mainly on ldquolinguistic

relativismrdquo which ldquoinsists on the impossibility of dissociating what was expressed in a

language (content) from how it was expressed in that language (form)rdquo Roebuck and

Sin (1993) argued

It cannot be denied that languages have semantic-syntactic gaps Language A has a word for

which Language B has no syntactically unanalysable equivalent hellip examples of

semantic-syntactic gaps show only that symmetry rarely exists between language hellip

Translationrsquos primary task is to convey the various types of meaning which are independent of

the conventionalized arbitrary features of human languages And exact translation as a

meaningful concept must be understood in that context and as a linguistic activity must

proceed under those constraints hellip Unlike poetry which often exploits the special phonological

morphological and syntactic features of a language to achieve aesthetic effects and is therefore

language-bound to some extent law as a social institution is not dependent on language in the

same way hellip It prescribes human behaviour hellip Human behaviour hellip can be described with

similarly sufficient precision in any language The behaviour prescribed and regulated by the

Common Law is no exception (pp 200-02)

The important point to note here is that the law prescribes and regulates human

behaviour in ways which can be described not only in English but also in any other

The difficulty [of translating English statutes into Chinese] lies in the linguistic and cultural

difference between English and Chinese It is a known fact that different cultural communities

organize their internal relationships in different ways This results in legal contexts that differ

both in conception and expression (p 184)


language just as the rules of a particular game can be laid down in different languages

such that players relying on different language versions of the rules can play the same

game There is no a priori reason why Chinese cannot be used to express the legal

concepts of the common law Semantic equivalence is achievable in legal translation

as noted in section 223 of chapter 2 Aiming to achieve semantic equivalence the

legal translator should import the source legal culture into the target legal culture an

approach which requires linguistic and conceptual adjustments of the translating

language In the same manner Chinese as the translating language can be expanded to

include newly introduced cultural concepts of the common law

Wong (1999) also denounced as bigotry the view that English is the only

language capable of expressing concepts of the common law He points out that Latin

and French were the languages of court proceedings in England before English took

over the dominant position and that ldquothe reason for the spread of English is political

cultural or economic rather than linguisticrdquo (p 31) However what most troubled

Wong was Section 10C (1) of Chapter 1 of the Laws of Hong Kong which stipulates

as follows ldquoWhere an expression of the common law is used in the English language

text of an ordinance and an analogous expression is used in the Chinese language text

thereof the Ordinance shall be construed in accordance with the common law

meaning of that expressionrdquo (Sect 10C Cap1) Wong (1999) expressed his deep

suspicion of such a semantic interpretation of the translated laws in Hong Kong

Thus constricted the Chinese equivalents of common law expressions are mere symbols in the

most unsophisticated sense of those words They have no meaning of their own however

beautifully rendered they might seem and however much their creator thinks they resemble the

original It matters not one jot (p 31)


Actually if this remark is true the same strictures could be applied to any ordinary

native speaker of English who has no training in and no knowledge of the common

law In his case as well the technical expressions he comes across are no more than

ldquomere symbols in the most unsophisticated sense of those wordsrdquo and mean nothing to

him at all In the same vein should we not perhaps blame those who create these

wordsmdashlaw drafters and judgesmdashfor conjuring up such meaningless symbols

Evidently Wong has missed the whole point While it is no doubt true that the

translatorrsquos task is to give a ldquobeautifulrdquo rendition of common law expressions and

provide the closest possible Chinese equivalents the legal meaning of these

equivalents can only be properly construed in the light of the entire semantic

referential system of the common law Secondly Wong is wrong in his explanation of

how language works The ldquomere symbolsrdquo of the Chinese equivalents of common law

expressions are by no means ldquoconstrictedrdquo Instead the Chinese equivalent of a

common law term is defined as the equivalent for its counterpart in English

To provide Chinese equivalents of common law terms is a vital step in

transplanting the common law into Chinese History tells us that whether it was the

Christian Bible or the Buddhist scriptures that were being translated the translator had

to adjust the Chinese language in such a way that foreign concepts could be

assimilated into its conceptual system As a result the translated text was invariably

incomprehensible at the initial stage of assimilation as Sin (1998) put it ldquohellipopaque to

the uninitiated eyesrdquo (p 138) But now the Chinese equivalents of these biblical or

Buddhist concepts have become part of the Chinese language and culture This is also

the case with the common law in Chinese To sum up the problem at issue here is

neither the translatability of the common law nor why it should be translated but how

common law Chinese could be developed with a view to transferring the legal culture


of the common law into Chinese The whole case by no means ldquomatters not one jotrdquo

Instead it matters a lot We will further discuss the second question in the following

sections

52 Legal Terminology and Legal Concepts

As has been shown in the previous chapter transferring the legal culture of foreign

laws into China has plenty of precedent Legal concepts and legal principles of the foreign

laws have been imported into Chinese since the Qing Dynasty To transfer the culture of

the common law ie its legal concepts and legal principles into Chinese is thus by no

means a novel venture As we know legal concepts of the common law are specific to

that system and are expressed by means of in its specific legal terminology In the case of

Hong Kong when the Official Languages Ordinance was amended in 1987 to stipulate

that the laws of Hong Kong be available in both Chinese and English the translation of

the common law terminology posed a serious challenge In the following sections we will

look at the specific features of common law English in which legal concepts and legal

principles are embodied and examine the specific problems in translating the Common

Law into Chinese from the aspects of the legal lexicon legislation and case law We will

first investigate the theoretical aspects of the terminology and the relationship between the

common law terminology and the legal concepts they stand for


A study of terminology68 calls for an understanding of the form-meaning relationship

of the terms since it forms the basis of our inquiry into the relation between legal concepts

and legal terminology69 Since a word is a lexical unit constituting a term the study of

words constitutes the basis for the study of legal terms According to Saussure the

linguistic sign has two sidesmdashthe signal (the word form) and the significance (the concept)

while the word as a linguistic sign is composed of the word form (the signifier) and the

word meaning (the signified) (1986)70 An essential concept can be expressed and

lexicalized as (and in the form of) a noun a verb or a descriptive adjective In other words

a noun verb and descriptive adjective can signify the same essential concept71 That

concepts and word forms are not equivalent is shown by the fact that one word can have

more than one meaning in the same language72 Lexical relations could thus be illustrated

68 In search of a theory of terminology Sager (1990) defined terminology

hellipas the study of and the field of activity concerned with the collection description processing

and presentation of terms ie lexical items belonging to specialized areas of usage of one or more

languageshellip(p2) 69 A word is typically a single lexical unit while a term could be composed of a single word or a set of

words Terminologies are the technical or special terms used in business art science or special subject

Thus terms used in the language of the law consist of general terms and terms used pertaining to the

special context of the law which can be regarded as its terminology 70 ``Word form will be used here to refer to the physical utterance or inscription and ``word meaning

to refer to the lexicalized concept that a form can be used to express 71 We find that each essential concept when examined carefully has a root expression as a noun a verb

or a descriptive adjective The expression of a concept begins in one of these three word classes

However by affixing appropriate fragments each of these three word classes can (usually) be

transformed into another Conversely by removing these affixes a root expression can be revealed

Thus the underlying essential concept can be said to be independent of any specific word class

Alternatively we could say that all three word classes (noun verb and adjective) provide the same

expression of an essential concept 72 Each meaning of the word represents a different concept Such a word is called polysemy which

means that a word with (at least) two meanings yet sharing a lexical form According to Leech

ldquoSynonymy and polysemy are relation between form and meaning (a) Synonymy more than one form

having the same meaning (b) polysemy the same form having more than one meaningrdquo (1981 p94)


according to the analysis of the different meanings of one word which Leech (1981)

defined as ldquoa process of breaking down the sense of a word into its minimal componentsrdquo

(p 89)73 In this regard componential analysis is very useful in understanding the relation

between concepts and words74 The problems of the translation of terminology hinge on

conceptual equivalence since there is not always a correspondence between pairs of terms

in the source and target languages The layperson usually believes that sound knowledge

of the source and target languages and a good dictionary are sufficient for translating a

term in question but even if this were wholly true it would be is in no way sufficient in

technical translating where the translation process is concerned with achieving conceptual

equivalence between two terms75 The degree of conceptual equivalence which exists is a

function of the extent to which the intentions of two or more concepts overlap Typical

degrees of equivalence include 73 Leech said

The meanings of the individual items can then be expressed by combinations of these (semantic)

features

man +HUMAN +ADULT+ MALE woman +HUMAN +ADULT - MALE

boy +HUMAN -ADULT + MALE girl +HUMAN ndashADULT- MALE

These formulae are called the COMPONENTIAL DEFINITIONS of the items concerned they

can be regarded in fact as formalized dictionary definitions The dimensions of meaning

themselves will be termed semantic oppositions (1981 pp89-90) 74 Nida (1975) supplemented the approach of componential analysis proposing that there are three

fundamental classes of components They are

(1) the common components ie those features which are shared by all the meanings being

compared and which accordingly constitute the basis for bringing such meanings together (2)

the diagnostic components ie those features which distinguish the meanings of any set and (3)

the supplementary components ie those additional features often connotative which are

significant in describing all the aspects of a meaning but which may not be strictly necessary in

contrasting a particular set of meanings (p182) 75 Since there used to be doubt that a true translation equivalence is possible because of the difference

of meaning of corresponding words in the two languages while in practice translation equivalence does

exist in the sense that translators in their daily operation select term Y in the TL (target language) as the

translation of term X in the SL (source language) and so one could say that X and Y are translation

equivalents


(1) Complete equivalence a term in SL whose concept is the same as the term in TL The

two terms are thus judged to be equivalent

(2) Partial equivalence this can be further divided into two types One is narrower

equivalence where the concept of the term in TL includes fewer characteristics than

that of the term in SL against which it is being measured The other is broader

equivalence where the concept of the term in TL includes more characteristics than

that of the term in SL against which it is being measured

LanguageLanguage

Areaof Shared

Concept

Source Target

Figure 52 Different conceptual divisions across languages

(3) Non-equivalence the term in the SL whose concept does not exist in the TL

The foregoing discussion of conceptual equivalence is directly relevant to the

translation of terminology In cases when one linguistic form in the original language

represents several different concepts which are lexicalized in different linguistic forms in

the translating language such concepts should be understood according to the original

referential system In pointing out the significance of the referential system of the

terminology Sager (1990) remarked


A theory of terminology is therefore primarily concerned with a referential system which relates

knowledge structures to lexical structure and defines the constituent elements of each type of

structure (p 14)

For Sager a theory of terminology inevitably involves a theory of ldquoconceptrdquo and

ldquoreferencerdquo as the concept conveyed by an item of terminology can only be construed in

its reference Based on the above definition the common law terminology which is

legally and culturally specific to the common law should be appropriately regarded as a

semantic system ie scientific expression of the system of common law concepts

Accordingly the study of common law terminology is the study of the relationship of the

linguistic signs and their concepts with special reference to common law culture An

investigation into the translation of the common law terminology into Chinese in terms of

cultural transfer will ultimately focus on the translated linguistic signs and their semantic

referential system

We can thus justifiably say that common law terminology is the lexicalized

expression of the concepts built into the common law As Carter (1994) points out

Basic concepts hellip build up in law as cases accumulate hellip they [concepts] do exist in law Often they

turn out to be sufficiently fixed and stable so that lawyers can engineer from them secure plans for their

clientsrdquo (pp 142-143)

This illustrates how significant the existence of legal concepts is in the common law and

how decisive the use of them is for lawyers In the common law legal concepts are

lexicalized or expressed by legal terms The translator has to identify the concept and the

referent that the word in the source language represents But if the translator fails to


distinguish all the different concepts and referents that the word in the source language

can stand for she may end up selecting a word in the target language that represents the

wrong concept and referent

Therefore one of the difficulties that the translator may encounter in translating legal

terms is the problem of non-equivalence In some cases the legal concepts that are

expressed by the legal terms do not exist in Chinese There are no words in Chinese to

express some of the most elementary notions of the common law The terms the common

law and equity are only two of the examples There is no system of the common law

and equity in the Chinese legal system (neither in the PRC nor in Taiwan) In addition

many types of institutions proper to the common law have no direct counterparts in China

eg ldquoMagistraterdquo ldquoLands Tribunalrdquo and many others) In other cases partial-equivalent

terms also pose difficulties to the legal translator since one legal term can have both a

specific legal meaning and an ordinary meaning at the same time eg the term

ldquoconsiderationrdquo An equivalent for the ordinary meaning which is shared in Chinese can

be found but the specific legal meaning does not exist in Chinese Could such a Chinese

equivalent if selected as the translation convey the same legal meaning in the common

law For example transferring the expression used for seemingly similar institutions eg

ldquohigh courtrdquo risks blurring the differences between these institutions The common law

term high court could be translated into Chinese as gaodeng fayuan (高等法院)

However this very term as used in the PRC refers to a different legal institution operating

under a socialist legal system Therefore the Chinese equivalent gaodeng fayuan (高等法

院) for the common law term ldquohigh courtrdquo certainly does not mean the same as the

Chinese term gaodeng fayuan (高等法院) as it is already used in the PRC Gaodeng

fayuan (高等法院) as the translation for the common law term can only be properly

construed with reference to the common law system


To propose appropriate translation strategies and techniques in translating common

law terms into Chinese requires a clear understanding of the vocabulary used in the

common law in the first place The vocabulary of the common law is multifarious

including as it does terms referring to legal institutions terms referring to legal personnel

terms employed in different branches of law and of course words used in everyday life

The question is how best we should categorize them While different criteria are possible

a classification in line with the relationship between the linguistic form and the legal

concept could be of great direct help and could also hold relevance for further

investigation of translation equivalence in general The classification of the common law

vocabulary discussed in this section will thus be based on the analysis of the term and

concept relation made previously76

(1) Technical terms also called terms of art these are terms used exclusively in the legal

sphere and have no application in ordinary language and they make up a significant

part of common law terminology As terms of art their technical meaning needs

scrutinizing when being translated as they are unique to the common law and have no

equivalent in Chinese It should be noted that most common law terms of Latin or

French origin belong to this category They can be divided into two sub-categories

(a) Technical terms that represent concepts constructing the body of the laws77

(b) Technical terms that represent concepts relating to the judicial mechanism78

76 Alcaraz and Hughes (2002) also divide legal vocabulary into three categories namely ldquopurely

technical vocabularyrdquo ldquosemi-technical vocabularyrdquo and ldquoeveryday vocabularyrdquo (pp154-65) 77 Selected examples include demurrer estoppel fee simple fee tail laches mens rea reprieve

trespass overrule trover and waiver


Semi-technical terms these are common English terms which when used in a legal

context acquire a specific legal meaning Such terms are thus polysemous and more

difficult to identify As proposed by Sin (1998) they can be further divided into three

linguistic sub-categories

(a) Terms where the legal meaning is fully shared with the core meaning79 Core

meaning may be used to illuminate the meaning of other senses and all other

senses may be derived from this core meaning combined with contextual

information such as abandonment (fangqi 放棄) attempt (qitu 企圖) confession

(gongren 供認) defence (mianze bianhu免責辯護 kangbian 抗辯) negligence

(shuhu疏忽) public place (gongzhong defang 公眾地方 gongzhong changsuo

公眾場所)

(b) Terms where part of the legal meaning overlaps with the core meaning such as

consideration (daijia 代價 ) discharge (shifang 釋放 ) malice (eyi 惡意 )

representation (shenshu shu 申述書 chengshu 陳述) remainder (shengyu quanyi

剩餘權益)

(c) Terms where the legal meaning deviates completely from its core meaning eg

personal representative (yichan daili ren 遺產代理人) warranty (ciyao tiaojian

次要條件)

78 Selected examples include affidavit certiorari defendant fieri facias habeas corpus mandamus

metes and bounds plaintiff serve proceedings and voire dire 79 By core meaning we refer to the central or most fundamental concept that links the principal senses

of a word to its various other senses


(3) Everyday vocabulary terms which are common or ordinary in English They are used

both in special context and in everyday common language and have no specialized

meaning in the common law

Historically and politically the language of the laws of Hong Kong was exclusively

English The Chinese legal terms employed in the PRC legal system and Taiwanrsquos

German-based civil legal system were distinct from those in common law English and as

a result no equivalent legal terms existed in Chinese To achieve conceptual equivalence

in translating terminology the translator has to generate a term in the target language

which can express the same concept as the term in the source language When

terminological concepts are shared in the source and target language the translatorrsquos job

is to find the conceptual equivalent But where one concept in the source language does

not exist in the target language the translator encounters a greater problemmdasha new term

in the target language has to be created which is capable of expressing the same concept

as the original term in the source language

53 The Language of the Legislative Texts and Legal Bilingualism

In the common law legal culture the notion of statutes as the primary source of law

is a recent development whereby an identifiable and sovereign legislature makes all the

rules by which disputes are resolved Making law by legislation is already an

indispensable part of the common law system as noted by Hiltunen (1990) ldquoNowadays

of course judicial principles are laid down through parliamentary legislation in many

areas where there is no tradition in the common lawrdquo (p 16) Section 4(1) of the Official

Languages Ordinance (Cap 5) in Hong Kong stipulates that that all ordinances shall


subject to certain exceptions be enacted and published in both official languages ie

Chinese and English The statutory law of Hong Kong before 1997 is derived from the

common law legislation Most of the legislation remained intact after 1997 with little

being repealed or revised The official website of the Department of Justice of Hong

KongmdashBLISmdash is a comprehensive database for updated bilingual laws information and

most of it ldquocontains the statutory Laws of Hong Kong and selected constitutional

documentsrdquo80

For the legislative translator gaining a clear understanding of the language of and

the legal culture embedded in the legislation is a prerequisite to maintaining the legal

meaning intact It is argued that the language of statutes is one of the most complex forms

of language perhaps the most complex Some of these complexities result from the way

in which the law developed historically (Mellinkoff 1963) and some were no doubt due

to bad drafting Yet legislative language as a whole has won a defence from some

linguists

Legislative discourse cannot be said to be purely or wilfully esoteric or archaic or unintelligible as

its critics often say It constitutes a rational functional stylemdashmore accurately it is rational

because it is functional (Maley 1987 p 46)

The lexico-grammatical choices in legislative writing come from the goal of legislation to

provide certainty This requires that the language of legal rules should be precise and

explicit However in reality it is impossible for a legal rule to be so precisely framed that

80 BLIS website httpwwwlegislationgovhkindexhtm accessed on April 16 2008


it encompasses all possibilities Therefore against the goal of certainty must be balanced

the goal of flexibility This is achieved through the use of words of general classification

such as place building or vehicle where class membership is open and through words

that allow for a degree of interpretation such as wilful or reasonable A balance between

certainty and flexibility can also be achieved through the interweaving of numerous

qualifications with the main provision This leads to very long sentences that cannot

easily be replaced by shorter sentences at least not without compensating in another

fashion (Bhatia 1994) Another characteristic of statutes noted by linguists is their

relationship with other related statutes ie their intertextuality Intertextuality in statutes

can be realized in a number of different ways through textual mapping devices for

example ldquoin pursuance of section 111 of this Actrdquo (Bhatia 1987) and through complex

prepositions such as ldquoby virtue ofrdquo and ldquoin accordance withrdquo (Swales 1982) They allow

the draftsperson to reduce the amount of information in an already extremely dense text

and signal to the reader where this information can be found In addition they explicitly

locate a statute in the context of preceding legislation and remind the reader of the wider

context in which the statute has to be read

Two other distinct features of legislative language must be noted its normative

nature and its instrumental purpose Legislation is made to confer rights define duties

and stipulate prohibitions purporting to be prescriptive directive and mandatory

Each legislation may contain one or more legal rules or legal norms delivering the

above functions Thus legal rules create legal relationship and identify in what

situation the legal relationship occur Vandevelde (1996) explains how legal

relationship is created in legislative language


In general rules of law bear the form lsquoif x then yrsquo meaning that if these facts occur then this

legal right or duties arises Rules of law thus have a factual predicate and a legal consequence (p

19)

Therefore statutes themselves are the rules of law bringing about certain rights and

duties In terms of the basic elements of legal rules Šarčević (1997) analyzed the

famous English barrister George Coodersquos contention that ldquoall legal rules contain the

following four elements legal subject legal action case and conditionsrdquo (p 136)

She agreed with previous criticism of Coodersquos definition of the elements of legal rules

as too rigid since the two elements of case and condition could be combined into a

fact-situation while the other two elements ldquoconstitute the so-called statement of lawrdquo

but noted that ldquoit is significant that he singled out the legal action as the most

important element of a legal rulerdquo (p137) Šarčević (1997) subscribed to the more

recent development proposed by Kelsen and his followers who analyzed the

ldquoprescriptive and descriptive elements of legal rules or normsrdquo and Weinbergerrsquos

assertion that legal rules comprise ldquodescriptive fact-situation (propositional content)

and a prescriptive statement of law (normative content)rdquo (p 137) Thus the legal

translator must identify the normative content of the legislative language The

instrumental purpose of the legislative language is based on the underlying policy that

the legislature intends to promulgate Most statutes address matters of public policy

The public policies that the legislature intends to promote are considered as the

underlying policies on the basis of which rules of law are built The underlying

policies are the intent of the lawmakersmdashwhat kind of rights and duties they purport

to create and what remedies they decide to offer Underlying policy is of great

significance to legal reasoning It was the key element helping to understand the

statutes detect the intent of the legislature and analyze the application of the statutory


rules As Bhatia (1983) put it legislation was the law ldquohellipto do justice to the source

rather than to facilitate comprehension of the unfolding text by any particular

readershiprdquo(p 9)

Consequently law is viewed as a normative social practice while the language

of the law being a specialized language written to regulate administer or mediate

the citizen of certain society is declarative or imperative in nature Approaching the

normative nature of the legal language from the pragmatic dimension the speech act

theory inspired by JL Austin and further developed by Searle is appropriate to

explain how the language of law is supposed to guide human behaviour and how it

can give rise to reasons for action The legal speech act is an illocutionary act usually

marked by a performative verb

Hence I shall argue that a legislative textmdasha statutemdashis a rule-enacting document The text as a

whole is considered a speech act with the illocutionary force of enactment this emerges from an

analysis of the language of what is known as the enacting formula of a statute which is an

explicit performative The constituent parts of a statute hellip may be hellip speech acts with the

illocutionary force of ordering permitting or prohibiting as indicated by the modal verb in the

main clause of the sentence (Kurzon 1983 p 51)

The speech act of ordering is typically performed by the use of the modal ldquoshallrdquo

which shows ldquohellip the obligatory consequence of a legal decision and [is] not

simply hellip a marker of future tense which is its normal functionrdquo (Crystal and Davy

1969 pp 206-7) The use of the modal ldquomayrdquo has the illocutionary force of

permission while ldquoshall notrdquo expresses the illocutionary force of prohibition In

considering the legal speech act Šarčević (1997) observed


Translation problems arise because legal speech acts cannot be translated literally thus

preventing the translator from simply using the same form of the verb in the target text hellip

Pigeon repeatedly warned hellip against using the future tense in French to translate the English

imperative lsquoshallrsquohellip( p 137)

Bilingual legislation in Hong Kong at present means the enactment of new laws

in two languages namely English and Chinese since the translation into Chinese of

ordinances previously enacted in English has already been accomplished The present

drafting practice in Hong Kong already includes ldquoa translation process since the

English text is normally drafted first and then rendered into Chineserdquo (Lee 1996

p156) In the bilingual legislation context of Hong Kong the translator as both

message receiver and sender is required to construe the English legislation accurately

in such a way that Chinese version is as authentic as the English one81 This means

that the Chinese translation of the English common law must bear the same legal

meaning and have the same legal effect considering both the requirements and the

goals of the translation82 There is a basic presumption for this goalmdashthe presumption

81 ldquoSection 4(1) of the Official Languages Ordinance (Cap 5) now provides that all ordinances shall

subject to certain exceptions be enacted and published in both official languages The Law Drafting

Division of the Department of Justice (formerly known as the Legal Department or the Attorney

Generals Chambers) is responsible for preparing the two language texts of all ordinances and

subsidiary legislation introduced by the Government The first bilingual ordinance was the Securities

and Futures Commission Ordinance (Cap 24) enacted in April 1989rdquo (BLIS website A paper

Discussing Cases Where the Two Language Texts of an Enactment are Alleged to Be Different) 82 ldquoSection 10B (1) states the fundamental principle of equality between the two language versions of

our laws It provides that both language texts of an ordinance shall be equally authentic and the

ordinance shall be construed accordingly This means the Chinese text is neither subordinate to nor a

mere translation of its English counterpart (BLIS website A paper Discussing Cases Where the Two

Language Texts of an Enactment are Alleged to Be Different provided by the Law Drafting Division of

the Department of Justice)


of same meaning in bilingual texts83 As elucidated by the Law Drafting Department

the very aim of legal bilingualism is ldquoto introduce common law concepts to the

Chinese language hellip Reference must be made to the meaning as it is found in the

common law The common law must be taken as the semantic reference schemerdquo84

Therefore two legal texts are stipulated to have the same meaning and share the same

system of reference ie the common law

The problems encountered by the legal translator in translating legislation

include two aspects namely cultural and linguistic The linguistic problems in

translating the English into Chinese mainly include (1) Complex and lengthy

sentences (2) frequent use of the passive voice Researches on the language of the

law are numerous and relatively comprehensive From both Mellinkoff (1963) and

Crystal amp Davyacutes (1969) attempts at systematization in the 60s up to the modern

studies carried out by Bhatia (1983 1993) on legislative texts by Kurzon (1984) on

cohesive structures and in Spain by Alcaraz amp Hughes (2002) on the peculiarities of

the English legal structure and its language among others the emphasis has been

increasingly placed on the need to define and describe the legal discourse in its own

context Therefore far from considering the legal text solely from its grammatical and

semantic point of view studies of legal discourse exploit the full range of linguistic

theory and are no doubt also influenced by the pragmatic flavour of other previous

multidisciplinary analyses Bhatia (1983 1987 1993) paved the way for the practical

83 ldquoSection 10B (2) of Cap 1 presumes the provisions of a statute to have the same meaning in each

authentic language text The two texts are taken to communicate an equivalent message in their own

fashion They are but two expressions of the same intent and together constitute one law embodying a

single meaning Words and expressions in one language should be deemed to bear the same legal effect

as their counterparts in the other language of the same legislationrdquo Ibid 84 February 1999 Legal Practice Law Drafting The Common Law and the Chinese Language


application of genre theory by suggesting a comprehensive framework for analysing

non-literary genresmdashespecially LSP texts His studies of legislative texts examined in

detail their linguistic features in terms of preparatory qualifications cases and

conditions in an attempt to fill the gap caused by inadequate attention to training in

legal language in legal education system Bhatiarsquos work has shed considerable light on

the writing preferences of legal drafters Following Hallidayrsquos functional approach

Maley (1994) also researched legislative discourse by examining generic structure and

legal performatives He stressed the ways in which mandatory permissive or

discretionary elements in legislation determine the use of performative or operative

verbs (pp 20-21)

Let us look at the problem from the viewpoint of legislative drafting A rule of

law regulates behaviour in society It must be clearly formulated categorically stated

and accessible in terms of form The underlying logical structure of a rule of law and

its textual formulation are not always identical so recipients often have to construe

the relation between logical structure and the text Most importantly a rule of law

always exists as a logical proposition even if this not set forth formally in a statute

However when formally recorded one rule may be embodied in several texts

Although its textual formulation may sometimes be unclear or unambiguous the

logical structure of a rule of law always remains clear since the logical structure of the

legal rule determines the arrangement of its textual elements The so-called legislative

sentence is a sentence designed to confer rights or powers or to impose duties and can

also be used for prohibitions A mastery of the legislative sentence is useful for all

legal translators Legal rules expressed by the legislative sentence have a consistent

framework for their component parts divisions sections subsections and other

segments These linguistic conventions which may pose certain problems for the


legal translator actually provide a framework for the legislative drafter The legal

translator should know how the rule was developed about the underlying intentions of

the drafter and about how the rule-maker wants the rule interpreted85 This may place

a heavy burden on the legal translator and it is also a burden that the legal translator

has to remove from othersrsquo shoulders Although a plain writing style was not a new

style for rules written in England ldquomost of the legal documents follow the basic rules

that were written 150 years ago by an English barrister by the name of George Cooderdquo

(Watson-Brown 1998 p 23) Coode developed a model legislative sentence which

has been adopted by drafters in most Commonwealth countries and in some American

states Coodersquos model has also influenced the drafting of clauses in legal documents

especially contracts86 Although Coodersquos analysis has been criticized by some legal 85 Generally there are three well-established interpretation rules supposedly to guide lawyers and judges

the literal rule the golden (or purposive) rule and the mischief rule The literal rule simply means

giving the text its ordinary everyday meaning and applying it exactly as written This rule came into

prominence in the 18th century The literal rule was founded on the assumption that words chosen by

Parliament in the Act (or any legislature in any law) clearly showed their intentions in passing that Act

(Holland amp Webb 1991 p 66) What the literalist would be looking for is the primary or most obvious

meaning of the word not any general meaning or secondary meaning (Ibid pp 166-167) The literal

rule is admittedly a workable criterion for statutory interpretation The golden rule meant that words

should be construed in their ordinary sense unless that would lead to absurdity or inconsistency in

which case the senses of the words might be modified to avoid that absurdity and inconsistency (Cross

1987 p 14) The mischief rule seeks to discover the real intention of the legislature and represents a

somewhat more purposive approach to interpretation which sets out the job of the judge as to determine

what defect in the common Law the statute set out to remedy and apply what is ascertained to be the

intention of parliament There are other three rules which guide the statutory interpretation the rule of

ejusdem generis (lsquoof the same kindrsquo) the rule of noscitur a sociis (lsquoa thing is known by its associatesrsquo

[also known as the rule of rank] and the rule of expressio unius est exclusio alterius (lsquothe mention of

one thing is the exclusion of anotherrsquo) (Cross 1987 p 136) 86 According to Coode most law is designed to change the position of a person or a class of persons by

conferring a right privilege or power or by imposing a duty To carry out these functions effectively a

legislative sentence should contain four elements the legal subject which is a description of the person

or class of persons who is given a power or duty or whose legal position is otherwise affected by the


theorists as too rigid it remains a good starting place because it suggests the kind of

analysis drafters should attempt before starting to draft87 The complex and lengthy

sentences of the model were drafted expressly for the purpose of formulating legal

rules and enabling a drafting convention to be followed Since legal texts (statues

treaties contracts) defend the rights of a person or group or impose obligations their

drafters must pay ldquoscrupulous attention to making sure that the legal text is hermetic

and unambiguousrdquo (Taylor 1998 p 130) Admittedly the efforts to achieve a

hermetic and unambiguous text often result in a text that can be ldquoat times seemingly

impenetrable syntactically complex full of apparent redundancyrdquo (p131)

Another problem that the legal translator encounters is the use of passive

structures When using the passive voice a statement acquires an air of mystery as the

actor remains unknown until after the action is stated An omission of the actor

renders the statement even more mysteriousrdquo (p 23) Such an air of mystery is

operation of the law the legal action which is a description of the legal action or legally significant

impact that will result from the operation of the law and the case which is a description of the facts that

must have occurred the circumstances that must be present and the conditions that must be met for the

law to operate In the classic legislative sentence these three elements are arranged in the following

order

(1) the case is set out first in one or more subordinate clauses introduced by ldquoifrdquo ldquowhererdquo or

ldquowhenrdquo

(2) next comes the legal subject The legal subject is also the grammatical subject of the main

clause The legislative sentence ends with the legal actionmdasha description of what the legal subject may do or is

entitled to claim or must do or must not do 87 Admirable as it is Coodersquos model has certain problems One is that it relies on a left-branching

sentence structure Another problem is that it encourages drafters to equate a legal provision with a

self-contained legal unit on the one hand (the section article or clause) and with a self-contained single

grammatical unit on the other (the sentence) The final problem is that Coodersquos analysis of legal action

the third element of the legislative sentence is narrowly focused on rights duties and powers It

ignores definitions and other types of declarations


preferred by the legal drafters since the passive voice conveys the kind of objectivity

and lack of bias that legal rules are supposed to exhibit Consequently the legal

translator may find this particular linguistic problem hard to solve since legal English

creates linguistic patterns that are particularly difficult to translate directly into

Chinese However it is possible to write legal rules as Watson-Brown suggests ldquothat

will reflect (upon translation) the same meaning without tortuous Chineserdquo (1998 p

23)88 The legal translator does not necessarily follow the sentence sequence of the

English legislative text Instead he can use sentence structures idiomatic to Chinese

as long as the original meaning can be delivered

As can be seen from the discussion above past research on legal translation was

under the influence of the linguistic approach to legal translation mainly concerned

with the linguistic features of legislative language Inspired by applied linguistics

Alcaraz amp Hughes (2002) put forward the idea of ldquoindirectrdquo legal translation which

aims ldquoto produce on the target reader an equivalent effect to that produced by the

source textrdquo (p 180) Instead of explaining how the equivalent effect could be

produced on the target reader they mainly discussed the linguistic features of

legislation and the linguistic problems confronting the legal translator in the aspects of

ldquomodifiersrdquo ldquoadverbsrdquo ldquosyntaxrdquo ldquothematization and ldquotextual coherencerdquo To deal

with such problems they suggested three techniques ie transposition expansion and

modulation (pp 186-192) However they seemed to have ignored a more significant

88 Waston-Brown (1998) also proposed some solutions to the English legal drafter in terms of avoiding

pitfalls in bilingual legislation

(3) Use the active voice the present tense and indicative mood

(4) Use an intuitive syntax leaving the verbal qualifications until the end of the sentence

(5) Use short sentences by deleting lsquoandrsquo when it joins two principal clauses and

(6) Learn Chinese syntax and attempt to match it with the English text (p23)


problem besetting the legal translator namely the cultural problemŠarčevićrsquos (1997)

contention that legal translation is not linguistic transcoding did not prevent her from

approaching legal translation both from a linguistic and a cultural perspective She

studied syntactic features of the legislative text and noted that ldquothere is essentially one

basic underlying thought pattern hellip the basic logical structure of legal rules is

expressed by the formula if P then Qhelliprdquo basing her analysis on Coode (p 162) She

also discussed other stylistic features of legislation such as the use of negation and the

impersonal Šarčevićdid not find herself totally constrained by the linguistically

prescriptive aura of legal translation She suggested in fact that legal translators could

be creative in translation She realized that a ldquotranslatorrsquos greatest challenge when

translating the fact-situation of a legal rule is to find suitable ways of compensating

for conceptual incongruencyrdquo (p 149) She exemplified this conceptual incongruency

by citing an example from the Canadianrsquos experience of bilingual legislation In this

example the selection of the common law term ldquowilful conductrdquo as the equivalent for

dol in French caused confusion since the term ldquowilful conductrdquo ldquoincludes not only

acts performed with intention but also acts performed carelessly without regard to the

consequencesrdquo (p 150) Instead of providing a solution for the problem however she

merely commented that the use of descriptive paraphrase by Canadarsquos legal translators

was not a good way to overcome conceptual incongruency (p 151)

The researcherrsquos preoccupation with the linguistic problems of legal translation

may be justified if we view translation as a pure process of linguistic transcoding

However linguistics alone cannot help us to see the whole picture Roebuck and Sin

(1993) rightly pointed out


The existence of semantic gaps only proves the truism that different languages have different

ways of organizing the semantic fields of their basic vocabularies Although there are hardly

one-to-one correspondences between them a simple predicate in one language can almost be

mapped onto several correlative predicates in another hellip Likewise the existence of syntactic

gaps only show that different languages have different rules for generating acceptable formal

structures which are simply habitual ways of ordering phrasal and sentential components hellip

Accordingly examples of semantic-syntactic gaps show only that symmetry rarely exists

between languages hellip Translation as a linguistic activity for facilitating communication

between different language communities must take that linguistic fact as its starting point but it

decides nothing Translationrsquos primary task is to convey the various types of meaning which are

independent of the conventionalized arbitrary features of human languages And exact

translation as a meaningful concept must be understood in that context and as a linguistic

activity must proceed under those constraints (pp 200-201)

Thus Linguistic problems are not as difficult as the theorists reckoned them to be The

translatorrsquos greater challenge is the cultural problems to be faced in the process of

translation of legislation (or bilingual legislation) as Sin (1992) pointed out

The creation of a Chinese Common Law vocabulary for the rewriting of the Common Law in

Chinese will signify a large-scale assimilation of the entire English legal tradition into Chinese

culture (p 98)

The construction of every legislative rule was a process of conceptualization and the

legal drafter ldquowill usually draft from a precedentrdquo as Watson-Brown observes (1998

p23) To summarize the aim of bilingual legislation is to rewrite the common law in


Chinese and the two parallel legal texts namely English and Chinese share the same


54 Case Law Languagemdashthe Language of Judges

In the common law the notion of statutes as the primary source of law is a

recent development and beneath the burgeoning corpus of statues of the past years lie

the bulk of the common law the collection of judgesrsquo judgments that makes all the

rules by which disputes are resolved Judgments are law in action an abstract legal

rule is applied to a set of facts to solve a concrete problem and the solution is justified

Judges actually play an important and integral part in the common law system as it

has evolved In the common law system a judge is first called upon to find the law

next to interpret it then to articulate it and finally to apply it to the facts and the

situation presented in the courtroom It is the first two steps to find the law (with the

help of counsel) and to interpret it which come closest to the business of actually

making law Although much of the primary onus for the making of rules now lies on

the legislature it is still acknowledged that the common law system has historically

preferred to make law by adjudication than by legislation Consequently judge-made

law still plays and will play a significant part in the common law

In the case of Hong Kong where the law is built upon the common law judicial

precedents thus carry the same legal weight as legislation The legal rules and

principles that judges use to resolve present disputes will be applied to similar

disputes in the future As judicial precedents which are all reported in English are the

bases for the interpretation and application of statutes in the common law system it


will be difficult for legal practitioners to cite authorities in bilingual judicial

proceedings if there are no Chinese supporting materials for the respective ordinances

Besides as a judgment carries legal weight the translated version should be written in

precise language that captures the exact legal meaning of the original Translation of

binding precedents is therefore no less important than the translation of statutes

However in Hong Kong only a number of selected judgments have been translated

into Chinese The following reason was provided by the Department of Justice

(2004)89

The principles of the Common Law are to be found in the judgments of the courts both in Hong

Kong and in other Common Law jurisdictions around the world The language in which those

judgments have been delivered over the years is almost exclusively English There are hundreds

of thousands of reported cases which form the basis of the Common Law and it would

obviously be impractical to attempt to translate these into Chinese While in future there is likely

to be an increasing number of judgments in Hong Kong delivered in Chinese English will

continue to be the only medium in which the majority of judgments from overseas is reported

Given the above-mentioned constraint there is no denying that translating English

judgments into Chinese is of great significance and we must now explore the

language of the judgments and the difficulties encountered in the translation process

To solve the problem of cultural transfer in translating common law judgments

into Chinese requires the legal translator to fully understand the language of the

judgments in the first place Judgments can be found in law reports These serve as the

89 The passage is quoted from the Department of Justice website Information based on the

Departmental publication Legal System in Hong Kong printed in 2004


written record of the explanation that judges give of their reasoning and they enable

ready access to previous judgments90 Generally judgment as a form of law is

formal and authoritative The common law judge writes opinions as a narrator of the

law91 The prestige he enjoys in his professional milieu allows him to fully and openly

assert his own interpretation of the law and to present it in through argumentation

Consequently the decision-giving process involves two intertwined process namely

the interpretation of the legal rules that are being applied to the specific case and

factual situation and the argumentation supporting why a decision is made in one way

rather than another Although each judgment will to some extent reflect the individual

styles of the judge arriving at it it will always stand on these twin pillars of

argumentation and interpretation92 These modes in turn can shape the distinctive

features of the language of judgments93

90 A judgment can be divided into four components The first component is a brief description of the

important points in a particular case The second component is an introduction It gives the readers a

general idea of the case The third component is a list of cases referred to in the judgment The fourth

and the most important component is the main body of the judgment It is in this part that the opinions

of the judges are delivered 91 The main body of the judgments has two parts ratio decidendi and obiter dictum As the rationale of

particular judgment ratio decidendi states the underlying principle of law and represents the logical

basis of judicial decision Unlike obiter dictum which is the remark or observation made by a judge

while issuing a ruling ratio decidendi has binding force 92 After examining some technical and semi-technical legal terms that judges frequently use in giving

their decisions Alcaraz amp Hughes (2002) observed that ldquoin keeping with the British tradition of

strongly reasoned judicial opinion judgments are often couched in a style that is flavoured with the

personality of their makerrdquo (p 114) In addition to their role in convincing the parties judges also argue

about the appropriateness of the norm being applied (the stare decisis function of judgments) Thus

judicial opinions are also aimed at persuading their readers of the correctness of the decision reached

Modes and means of persuasion such as explicit argument rhetoric metaphor and syntax are

sometimes language-specific and this may cause difficulties to the legal translator 93 Since many legal disputes are battles over the meaning of a statute contract testimony or the

constitution judges must interpret language in order to decide why one proposed meaning overrides

another And in making their decisions about meaning appear authoritative and fair judges often write


Judicial language thus constitutes a special genre and research into the language

of judges has revealed a number of linguistic and legal problems which can ensnare

the translation process Judgments are important texts in legal education and

constitute a considerable amount of the required reading of law professionals A

generic structure of judgments had been identified (Bhatia 1993) as well as a

relationship between the structural elements and the communicative functions of

declaring and justifying Alcaraz amp Hughes (2002) considered that linguistic problems

affect ldquoonly the tone and style of the judgment and are in no way concerned with

matters of lawrdquo (p 115) One prominent linguistic feature is the use of the first person

singular Another is the flavour of relatively colloquial expressions introduced in

order to ldquotemper the severity of the law to make the opinion sound more humane and

to create an impression of reader-friendlinessrdquo (p 116) Maley (1994) also approached

the use of the first person singular from the view of modality which he found played

an important role in the justifying function of judgments He cited a famous speech

delivered by Lord Atkin as an example of the semantics of modality Elaborating on

Hallidayrsquos distinction between two kinds of modality modalization and modulation

Maley explained

about the nature of linguistic interpretation Thus the language itself serves an interpretive function

Both legal interpretation and legal reasoning concern the application of legal rules Every rule is

formulated within a certain context but does not explicitly reflect that foundation The background

comprises the elements of the time the place the reason the process and the people who make the rule

Once a legal rule is written down in the form of language it loses its background simply because of the

inherent limits of language This linguistic constraint makes the application of legal rules all the more

difficult Where a judgment seeks to justify a particular interpretation of a norm the judicial opinion is

actually an exercise in persuasion it is a subtle interweaving of a statement of a legal norm and the

justification for both the normative content and the form in which it is stated Judges must be free to

use rhetorical techniques that are central to the persuasive force of a text


Modalization expresses the varying degrees of probability and usuality while modulation

expresses the various degrees of obligation and inclination Both modalization and modulation

are expressed from the viewpoint of the speaker they can nevertheless be expressed as thoughts

they are objective or subjective In Lord Atkinrsquos speech hellip when he projects lsquo[persons] that I

ought reasonably to have in contemplationrsquo from lsquothe answer seems to behelliprsquo the latter [is] an

example of an objective modalisation and the former a subjective modulation That is Lord

Atkin is saying what in his opinion the law should be (1994 p46)

Maley (1994) thus concluded that ldquomodalisation and modulation are the chief

linguistic means of expressing the justificatory and declaratory functions of

judgmentrdquo (p 46) Unlike the consistent formal and authoritative language of the

legislation the language of judgments may be tainted with the personal style of

individual judges The legal translator should always take into consideration the need

to preserve the stylistic feature of judgments

Solan (1993) carried out a detailed examination of the linguistic aspects of the

law to illustrate ldquohow and why judges write about the structure and meaning of

language to justify their decisionsrdquo (p 1) Solan used various examples to illustrate

the way linguistics entered the process of judicial decision making analysis of the use

of adjectives in jury instruction analysis of the relationship between adverbs and

prepositional phrases and cases focused on the meaning of certain words in the

legislation Judges often faced linguistic issues when lawyers attempted to interpret

legal rules in the legislation or legal principles laid down in previous judgments in

favour of their own clients (p 28) The final decision rested with the judges


hellip the judge hellip will often resort to legally recognized principles of interpretation such as

attempting to divine the intention of the drafters of the document On occasion these principles

are linguistic and it is upon these that I will focus hellip Included among the examples are a

linguistic-legal principles called the last antecedent rule principles governing the interpretation

of conjunction and disjunction (and and or) rules for the interpretation of pronouns and a

debate about the proper scope of adjectives (Solan 1993 p 28)

The above mentioned jurilinguistic principles are a useful starting point when trying

to understand the linguistic problems that the legal translator may encounter The ldquolast

antecedentrdquo rule is the doctrine of interpretation that states that the qualifying words

or phrases in a statute refer to the immediately preceding language unless common

sense indicates that they were intended to apply to something less obvious or more

distant It thus forms an interpretive guide that courts may use to decipher uncertain

statutory language94 In summary a linguistic approach gives us some valuable

insights into the language of judgments and their interpretative rules

In legal translation it is crucial for the translator to understand the underlying

legal principles and legal reasoning in order to transfer the culture of the case law into

Chinese As already shown above rules and principles in each subject of the law have


law today These rules and principles have been consistently developed by judges in

94 The andor rule is an interesting and controversial one Legal drafters try to be clear by using

ldquoandorrdquo However there are still many case laws interpreting these two conjunctions Although courts

generally prefer interpretations that make sense of language over ones that turn it into nonsense the

judicial interpretation of ldquoandorrdquo is sometimes an exception How this could be implemented in an

adversarial system was somewhat difficult to see since the interpretation of statutes and legal principles

was considered to be a question of law and therefore the domain of judges (Tiersma 1999 p 130)


their decisions95 In section 33 of chapter 3 we have identified the very culture of the

common law as a set of legal concepts and legal principles The concrete

representations of this culture are evident in the various judgments Legal principles

derive from the process of legal reasoning while legal reasoning is based on legal

principles The two are inseparable in a judgment A definition of legal reasoning

given by Carter (1994) described its composition

Legal reasoning describes how a legal opinion combines the four elements the facts

established at trial the rules that bear on the case social background facts and widely shared

values When judges reason well their opinion harmonizes or lsquofits togetherrsquo well these four

elements (p 15)

Carter (1994) also pointed out that ldquoJudicial opinions hellip give meaning to all types of

legal rules hellip precedents in many cases are vehicles for rationalizationsrdquo (pp15

143)96 This means that only if we understand the judicial opinions can we understand

the meaning of legal concepts or principles and hence case law as a whole97 Maley

(1994) thus concluded that ldquocommon law judges do not regard the application of the

95 The common law system is based on the legal principle of deciding points in litigation according to

precedent This applies both to application of the common law and interpretation of statute Under this

principle decisions of courts on matters of law are binding on subordinate courts or tribunals and if

not binding are highly persuasive on the court itself or equivalent courts 96 It is argued that there are at least three things which legal theorists could mean by legal reasoning (a)

reasoning to establish the existing content of the law on a given issue (b) reasoning from the existing

content of the law to the decision which a court should reach in a case involving that issue which

comes before it and (c) reasoning about the decision which a court should reach in a case all things

considered 97 Reasoning by analogy is integral to legal reasoning in the common law Any theory of legal

analogizing that seeks to explain the way in which precedents are utilized must account for the

influence of legal principles on the creation of legal analogies and for the use of analogies as a means

to test and refine these principles


principle of law to the facts of the case as a purely mechanical process Reasoning is

involved a kind of reasoning by analogyhellip In giving judgment judges hellip make

explicit the reasoning processes which have led them to that decision the cases they

have considered the analogies they have considered and rejectedmdashin short their

individual lsquofullest examinationrsquordquo (p 43) Legal analogizing thus plays an important

role in determining the scope of principles themselves98

Let us take an example from criminal cases to illustrate how legal principles in

the judgments might be identified In the common law tradition the vast majority of

criminal law is un-coded and the legal concepts and legal principles could be found

only in the judgments One essential legal concept in criminal law is mens rea This

focuses on the mental state of the accused and requires proof of a positive state of

mind such as intent recklessness or wilful blindness Some level of mens rea is

always a required element of the crime with which the accused is charged and must

be proven by the prosecution Therefore the principle of mens rea is the fundamental

principle of the criminal law In the famous mens rea murder case R v Nedrick 99 it

was made plain by Lord Lane CJ that the mens rea of intent could be inferred by a

jury when the defendant knew that death or really serious injury would come about as

a ldquovirtual certaintyrdquo of the act contemplated and done The House of Lords held in R v

Woollin100 reasoning by analogy that the principle of mens rea was applicable to the

present issue However it developed the principle of mens rea by suggesting that the

use by the trial judge is of ldquosubstantial riskrdquo rather than ldquovirtual certaintyrdquo Actually

98 Principles are empty unless tested by reference to concrete examples Any complete model of legal

reasoning and legal analogizing must simulate the manner in which principles influence the creation of

analogies and the way in which principles are themselves tested and refined on a case by case basis 99 [1986] 1 WLR 1025 100 [1998] 3 WLR 382


there are other cases that address the principle of mens rea ie R v Moloney 101 and

R v Hancock and Shankland102 These cases worked together to clarify the legal

concept and legal principle of mens rea especially the meaning of intention in terms

of acts that cause grave bodily harm or death

We can see that judgments are part of a community and part of a tradition103

Judgments are law in action where abstract legal rules are applied to solve concrete

problems and its justification are provided Most importantly judgments state what

the law is and define the legal concepts and legal principles embodied in the law In

other words judgments make up the most substantial part of the referencel system of

the common law against which the legal terms should be construed Therefore we

need resort to judgments for the real meaning of a translated legal term in the

legislation in order to understand the concept it stands for and related legal concepts

and legal principles In this sense translation of judgments is one of the most

important ways of building a metalinguistic mechanism for the common law As

noted in section 223 of chapter 2 cultural transfer is eventually effected by

metalinguistic operation as such

101 [1985] 1 All ER 1025 102 [1986] 2 WLR 257 103 In this connection Goodrich (1990) remarked

The Common Law will always exceed its particular texts its particular references its positive

forms To know the law is a matter of knowing an antique and unwritten tradition that exists

outside of history beyond all texts in the inaugural realm of things divine and to be divined

(augured) In Cokersquos words even where it is a matter of reading the law it is a question of reading

not simply the words of the text but also the tradition that accompanies them ( p 117)

Chapter 6

Cultural Transfer in Translating the Common Law into Chinese

61 Transfer of the Legal Culture of the Common Law

611 Problems in Translating the Common Law into Chinese

As we saw in the previous chapter the language of the common law is a complex

collection of linguistic habits that have been developed over many centuries one that

judges lawyers and other legal professionals have learned to use strategically Its

distinctive linguistic features accordingly reflect the underlying conceptual thinking of

such users In the same chapter we found that the legal culture of the common

lawmdashits legal concepts and legal principlesmdashis intricately woven into the texture of

its language In this section we will further analyze how both the legal culture and the

language of the common law pose difficulties to the legal translator as she sets about

her work

The problems that arise when translating the common law into Chinese are

closely related to both the legal culture of the common law and the specific features of

English legal language and we can categorize them into two major groups

(1) Problems arising from cultural differences between English and Chinese

CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 143

The most daunting aspect of translating the common law into Chinese is the

culture-specific quality of the source legal texts In many cases a difference in the

mere form of wording amounts to a difference in law

For instance if A lends money to B on mortgage and stipulates that the interest shall be 5 per

cent but if not paid promptly 6 per cent the latter part of the provision is void as a penalty Thus

B need pay only 5 per cent even if he does not pay promptly Yet if A had provided that interest

should be 6 per cent but if paid promptly 5 per cent the whole would have been good (Williams

1948 Jan pp 78-9)

In essence both provisions stipulate the same thing B to pay 5 per cent if he pays

promptly if not 6 per cent Yet the first formulation is not allowed by law whereas

the second is allowed Following the wording of the source text would seem to be a

play-safe strategy in legal translation and in the present case there is no immediately

apparent reason for the translator to deviate from the original wording But consider

the following case

If A gives property on trust for B lsquobut if B marries then for Crsquo the gift to C is struck out because

it tends to induce B to remain unmarried and the procreation of legitimate children is regarded as

a public interest Thus on this form of words B will take absolutely But if the words used were

lsquoon trust for B until he marries and thenceforth for Crsquo the gift over would be valid and B would

lose the property if he were to marry (Ibid p 79)

Here we meet the famous distinction between ldquobut ifrdquo and ldquountilrdquo in English law

Again it is obvious that both of the formulations under scrutiny intend to stipulate the

same thing B must give up the property to C once he marries However the


formulation using ldquobut ifrdquo is regarded as void whereas the one using ldquountilrdquo is valid

The translator may well find that her translation of the second formulation into

Chinese ldquo甲以信託形式將財產贈予乙直至乙結婚為止屆時財產將改贈予丙rdquo

looks rather clumsy and so turn instead to the wording of the first formulation which

looks simpler and more natural ldquo甲以信託形式將財產贈予乙但如乙結婚則改

贈予丙rdquo If she does this however she will have turned the original valid formulation

into an invalid formulation

As judicial decisions are sometimes arrived at purely on the particular words

used in a particular case changing the wording of the source text risks producing the

opposite legal effect in the target text This is why lawyers are so cautious over the

words they use This is also why the legal translator is often instructed not to deviate

from the wording of the source text

At a higher level the particular sentence structure of a statute may embody the

spirit of the common law According to Francis Cheung (1991) a penalty provision in

English criminal law is invariably formulated in the negative which is a manifestation

of a fundamental principle of the common law namely the ldquoresidual principlerdquo (pp

304-05) This principle accords citizens freedom to do whatever they like so long it is

not expressly prohibited by the lawmdashfreedom is whatever the law does not expressly

prohibit In contrast traditional Chinese law accords people freedom to do those

things allowed by the lawmdashfreedom is whatever the law allows To illustrate this

point he cited as an example the translation of a section of the Film Censorship

Ordinance 1988


15 (1) A person shall not exhibit a film in respect of which a certificate of exemption has been

issued under section 9 or a certificate of approval has been issued under section 13 unless the

certificate or a legible photocopy thereof is displayed and kept displayed in a conspicuous

position in or about the entrance to the part of the place intended to be occupied by persons

viewing the exhibition of the film during the period of exhibition of the film

The section was translated into the following two alternative versions

Version 1

15 (1) 任何人上映影片須在影片上映期間將根據第 9 條發給該影片的豁免證明書或其

清晰影印本或根據第 13 條發給該影片的核准證明書或其清晰影印本一直展示在用以容

納觀眾觀看該影片的場所入口或近入口處的當眼位置否則不得放映該影片

Version 2

15 (1) 無論何人不得上映根據第 9 條獲發豁免證明書或根據第 13 條獲發核准證明書的

影片除非在該片整段放映期間將上述證明書或其清晰影印本[或上述核准證明書或其

清晰影印本]展示在用以容納觀眾觀看該影片的場所入口處或近入口處的當眼位置

Cheung noted that Version 1 was more fluent but since it was formulated in the

affirmative and therefore unable to reflect the spirit of the residual principle it was

eventually not adopted On the other hand even though Version 2 sounded a little

unnatural in Chinese it was adopted as the official translation since it conformed to

the legal norm for penalty provisions

Thus in legislative translation the linguistic features of the source text often

dictate how it should be translated Preserving the linguistic features of the source text


is not as Vermeer and Snell-Hornby alleged transcoding but preserving the culture

of the source text

The language of the common law is also a manifestation of a series of

traditionally well-formed legal concepts These conceptions are the philosophical

foundations of the common law tradition and the basis of the legal principles

cultivated by legal reasoning unique to the conceptualization of the common law

Some common law terms for example are noted for their generality and abstractness

eg ldquoreasonable personrdquo or ldquodue processrdquo Common law language also employs

many abstract concepts that ldquodo not take their meaning from sensed experience but

are normative in characterrdquo (Farrar amp Dugdale 1990 p 77)67 The legal translator

must thus overcome the conceptual differences between English and Chinese Having

shown that legal concepts and legal principles are the major elements in the culture of

the common law we now need to discuss how they pose problems for the legal

translator The following example is taken from the frequently cited case Donoghue

(or MrsquoAlister) v Stevensonmdashthe ldquoPaisley snailrdquo case68 In the case Lord Atkin made

a famous speech which constructed the foundation of the modern law of negligence69

67 Farrar and Dugdale (1990) created a vivid simile to illustrate the importance of concepts in the

Common Law They remark ldquoIndeed conceptual thinking came to dominate the English Common

Lawhellip Concepts are more like chess pieces They can be maneuvered to produce certain results but the

players have a choice as to the move Similarly lawyers and judges often have a choice as to how they

will move the concepts They way in which they are moved and are applied to facts involves a process

of reasoning helliprdquo (p 78) 68 In this ground-breaking case a woman May Donoghue claimed to have been made ill by a bottle of

ginger beer she had bought in a cafeacute in Paisley Mrs Donoghue sued not the proprietor of the cafeacute but

the manufacturer of the drink She argued that the manufacturer had been negligent in not noticing that

the bottle contained a snail before filling it with ginger beer and sealing it Donoghue v Stevenson was

ground-breaking in Scots law as previously the customer would have been expected to sue the

shopkeeper rather than the manufacturer with whom she had no lsquocontractrsquo However in this instance

the drinkrsquos manufacturer was found liable for damages as they had neglected to provide a system to


Firstly it is evident that there are many terms peculiar to the Common Law such

as ldquoduty of carerdquo ldquoliability for negligencerdquo ldquoacts or omissionsrdquo ldquoreliefrdquo ldquoremedyrdquo

In the Common Law duty of care is the legal obligation as a citizen in societymdashit is a

question of law that requires the judge to determine if the duty is under a legal

obligation to exercise reasonable care in favour of the plaintiff Thus mastering the

cultural implications of the above legal concepts the ldquocultural immersionrdquo suggested

by Curran (1998 p 83) was a pre-requisite for the legal translator to comprehend

thoroughly the meaning of the English legal text As noted in section 52 of chapter 5

the effort to find Chinese equivalents for the above English terms would be futile

since there are no terms available in Chinese to express some of the most elementary

notions of the common law The legal translator in Hong Kong has to overcome the

difficulty of translating terms expressing concepts which are absent in Chinese

protect the public in such a way that lsquosnails would not get into the said bottle render the said

ginger-beer dangerous and harmful and be sold with said ginger-beerrsquo 69 Lord Atkinrsquos remarkable judgment in this case reads in part

At present I content myself with pointing out that in English law there must be and is some

general conception of relations giving rise to a duty of care of which the particular cases found

in the books are but instances The liability for negligence whether you style it such or treat it as

in other systems as a species of lsquoculparsquo is no doubt based upon a general public sentiment of

moral wrongdoing for which the offender must pay But acts or omissions which any moral code

would censure cannot in a practical world be treated so as to give a right to every person injured

by them to demand relief In this way rules of law arise which limit the range of complainants

and the extent of their remedy The rule that you are to love your neighbour becomes in law you

must not injure your neighbour and the lawyerrsquos question ldquowho is my neighbourrdquo receives a

restricted reply You must take reasonable care to avoid acts or omissions which you can

reasonably foresee would be likely to injure your neighbour Who then in law is my neighbour

The answer seems to bemdashpersons who are so closely and directly affected by my act that I ought

reasonably to have them in contemplation as being so affected when I am directing my mind to

the acts or omissions which are called in question (Donoghue (or MrsquoAlister) v Stevenson [1932]

All ER Rep 1 [1932] AC 562 House of Lords [1932] AC 562)


Secondly since a set of legal principles is formulated and developed by the courts

based on the significant legal concepts of the common law any lack of methods to

represent these legal principles constitutes another problem For example the common

law concept of tort consists of a breach by the defendant of a legal duty to take care not

to damage the plaintiff or his property and consequent damage from that breach Lord

Atkin in this leading case of Donoghue (or MrsquoAlister) v Stevenson held that while the

decided cases might each examine particular types of liability there must be a common

rationale He developed the argument that the decided cases had evolved to a general

principle which covered the immediate case In this case the applied principle was the

already existent neighbour principle which prescribed that you were to love your

neighbour This then became in law the prescription that you must not injure your

neighbour Lord Atkin then suggested a general test for when a duty is owed and the

lawyerrsquos question ldquoWho is my neighbourrdquo received a restricted reply ie you must

take reasonable care to avoid the acts or omission which you can reasonably foresee as

likely to injure your neighbourmdashwho then in law is my neighbour The answer

seemed to Lord Atkin to be persons who are so closely and directly affected by my act

that the actor ought reasonably to have them in contemplation as being so affected when

he was directing his mind to the acts or omissions which were called in question Thus

the legal duty was owed to persons whom one ought reasonably to have in mind as

being affected by onersquos particular behaviour70 The House of Lords in this case held

that manufacturers of products do have a duty to the ultimate consumer of their product

to take reasonable steps to prevent defects in its products which are likely to cause

damage to person or property The above reasoning established this as an important

case in the area of product liability In Lord Atkinrsquos approach we can note the common

70 This case is well-known as it sets out ldquothe circumstances under which a legal duty to take care will

ariserdquo (Shum 1992 p 205)


law spirit of stare decisis Lord Atkin did not ignore the precedents Instead he found

within them an underlying principle which he then applied In a sense Lord Atkin

looked backward before he moved the law forward to develop the legal concepts and

legal principles In translating such case law it is obvious that the underlying principles

are alien to Chinese but are a sine qua non for our current discussion of the culture of

the common law The legal translator thus faces the problem of finding a way to

represent such legal concepts and legal principles in Chinese

(2) Problems arising due to the differences between the syntactic arrangements word

order and language systems generally of English and Chinesemdashfor brevityrsquos sake

ldquolinguistic problemsrdquo71

Firstly frequent use of the passive voice is characteristic of the English common

law Voices are rather considered to have particular functions of their own than being

used for variation in the legal text The passive voice was sometimes viewed as

helping to convey the objectivity that law-makers seek to achieve ldquohellipthe passive of

the British formula renders the authority of the speaker more remote neutral and

abstract reducing the immediacyrdquo (Bowers 1989 p 28) In addition there are

instances where the passive is chosen for thematic reasons Also take the example in

sect13 of the translation of ordinance with the heading Apportionment of liability in

case of contributory negligence

Below is the English version

71 It is necessary to discuss linguistic problems since as we discussed in chapter 1 translation remains

linguistic transcoding Without a thorough understanding of the linguistic problems posed by the

differences between English and Chinese we cannot discuss the problem of cultural transfer properly


hellip a claim in respect of that damage shall not be defeated by reason of the fault of the person

suffering the damage but the damages recoverable in respect thereof shall be reduced to such

extent as the court thinks just and equitable having regard to the claimants share in the

responsibility for the damage (Amended LN 337 of 1989) (Cap 23 Sect 21)

The Chinese version reads as follows

hellip則就該損害提出的申索不得因受損害者有過失而敗訴但就該申索可追討的損害賠償

則必須減少而減少的程度是法院在顧及申索人對損害應分擔的責任後認為是公正與公

平的款額

Obviously the passive voice is employed above in order to foreground or thematize

ldquoclaimrdquo and ldquodamagesrdquo and these nouns take up subject position The legal translator

should consider whether it is appropriate to translate the English passive into Chinese

using sentences with ldquo被rdquo ldquo受rdquo or ldquo獲rdquo Therefore the Chinese translation follows

the English structure in conformity with the thematic emphasis by using the typical

topic-comment structure in Chinese

Secondly 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 complex72 Nominalization can

increase the inclusiveness of an expression but can also create a certain degree of

abstraction since the noun phrase may substitute for an entire subordinate clause As

72 A nominalization is a noun phrase that has a systematic correspondence with a clausal predication

which includes a head noun morphologically related to a corresponding verb


a result post-modification is largely used increasing the complexity73 The extensive

use of coordination and subordination structures in general leads to long and

complicated sentences in order to achieve the goal of inclusiveness precision and

clarity Consider the following sentences in Donoghue (or MrsquoAlister) v Stevenson

The liability for negligence whether you style it such or treat it as in other systems as a species of

culpa is no doubt based upon a general public sentiment of moral wrongdoing for which the

offender must pay

But acts or omissions which any moral code would censure cannot in a practical world be treated

so as to give a right to every person injured by them to demand relief

In the above two sentences the subjects ldquoliabilityrdquo and ldquoacts or omissionsrdquo are

followed with more or less elaborate post-modification ie the dependent clauses

introduced by ldquowhetherrdquo and ldquowhichrdquo respectively The legal translator needs to

understand the logical progression and legal reasoning underlying these complex

sentences when striving for semantic equivalence between English and Chinese

73 For varied forms of post-modification Crystal amp Davy suggest a four-fold division

a a preposition with a nominal group (ie a prepositional phrase) eg lsquothe defence of the free

worldrsquo

b a non-finite clause eg lsquothe diazo- and azo-compounds discussed aboversquo

c a dependent clause which may be introduced by a pronoun or simply attached directly to the

nominal it modifies eg lsquothe man I knowrsquo

d an adjective eg lsquo God the Father almightyrsquo (in Hiltunen 1989 p79)


612 Legal Translation as Cultural Transfer-- Two Levels of Transfer

In this section we will not only present a theoretical framework for analyzing

legal translation as cultural transfer but also provide principled methodologies for

legal translation especially for translating the common law into Chinese It has been

noted that legal translation as cultural transfer inevitably involves the linguistic and

conceptual adjustments of the translating language Translating the common law into

Chinese is thus a paradigm of cultural transfer as foreignization and necessitates the

importation of common law legal concepts and legal principles into Chinese How

exactly could common law culture be transferred into Chinese

Figure 61 which recalls the more general process diagram of Figure 32

illustrates the process of translating the common law into Chinese in order to achieve

the conceptual semantic equivalence noted in section 223 of chapter 2

ST (common law in English) TT (common law in Chinese)

ST is the

representa-

tion of SC

SC is

embedded

in ST

Text of the English

common law

(legislation and case

law)

Linguistic

transcoding

Text of the English

common law in

Chinese (legislation

and case law)

The missing link

between the

Chinese translation

and the culture of

the common law


SC (Culture of the common law) SC (Culture of the common law)

Figure 61 Process of Translating the Common Law into Chinese

The problem is one of cultural transfer Since section 4(1) of the Official

Languages Ordinance (Cap 5) provides that all ordinances shall subject to certain

exceptions be enacted and published in both official languages (ie English and

Chinese) Section 10B (1) prescribes the fundamental principle of equality between

the two language versions of Hong Kong laws It provides that both language texts of

an ordinance shall be equally authentic and that the ordinance shall be construed

accordingly This means the Chinese text is neither subordinate to nor a mere

translation of its English counterpart74 However such a stipulation of the ldquosection

alone is still not sufficient to make the Chinese text a meaningful representationrdquo (Sin

1998 p 205 the authorrsquos italics) As illustrated in figure 61 even though we conjure

up a Chinese text that translates the English common law (legislation or case law)

and use a range of techniques neologism borrowing etc to arrive at semantic

equivalence this still does not mean that the Chinese text is capable of as is the

English version representing the culture of the common law We still need to find out

how to in Sinrsquos (1998 p 195) words establish the ldquomissing link between language

74 BLIS website A paper Discussing Cases Where the Two Language Texts of an Enactment are

Alleged to Be Different

Culture of the

common law legal

concepts and legal

principles in Chinese

Culture of the

common law legal

concepts and legal

principles

Transference of

the legal culture


and lawrdquo mdashto be precise the missing link between the Chinese language and the

culture of common law In this connection Sin (1998) rightly points out

All large-scale cultural transfers begin in the absence of a readily usable language The first and

most natural response of the native culture is to make an attempt to naturalize the foreign

culture Where it has a close affinity to the native culture naturalization or minor adjustment

may be adequate But where it is one of great complexity or radically different the native

culture will find it necessary at some point to change and adjust its language so as to make it

suitable for assimilating it hellip In the absence of an established Chinese legal language translating

Hong Kong laws into Chinese without the benefits of naturalization and subject to enormous

constraints is in many ways tantamount to creating a new form of Chinese Special lexical and

syntactic devices were required to cope with the rich and highly technical vocabulary of the

Common Law as well as its distinctive mode of thinking (pp 136-37)

We can see that cultural transfer is first and foremost linguistic transfer As has been

shown in section 211 any translation necessarily involves transcoding on the

linguistic level Where no Chinese term exists to express common law concepts new

terms have to be created Sager also noted ldquoNew terms are regularly introduced into

the language either to fill a gap created by the introduction of a new concept or to

replace an existing less efficient termrdquo (1990 p 114) The Chinese language needs to

be adjusted to accommodate new concepts representing one level of cultural

transfermdashtransfer at the linguistic level However common law Chinese cannot

acquire its new meanings unless these are understood with reference to the English

common law To explain this point Cao (2004) remarks


It is a fact that when Common Law concepts are translated into Chinese very often new words

need to be created as such concepts do not exist in Chinese Even after the new linguistic terms

are brought into being in Chinese through translation their referential objects continue to be

found in English Common Law not Chinese law and need to be understood with reference to

Common Law hellip Legal concepts and their translations are relative relational and referential If

we see a legal concept as an idea a network of cross-referential sign-functions that is a

complex sign-system a translated legal concept can grow and expand its meanings and take on

meanings from two sign systems linguistically and culturally hellip We need to read a translated

legal concept with reference to the legal system it refers to not just in what language it is

re-presented (pp 172-73)

Cao rightly points out the principle of understanding the translated law after the initial

linguistic transfer since the culture behind it could only be identified in the English

common law instead of common law Chinese

Since the present study concerns itself not only with identifying such a linguistic

transfer but also justifying it we draw attention to the fact that such an adjustment is

more dramatic culturally than linguistically Regarding this Sin (1998) presents a

convincing argument

Before the Common Law integrates into the thought-world of the Chinese language the Chinese

text of Hong Kong law is as it stands a mere linguistic recoding of its English counter-parthellipIts

meaning is transparent only to those who have taken part in the process of translation but

opaque to uninitiated eyes Without the support of a legal culture the semantic link between

Chinese and the Common Law exists only between the two texts As has been noted in cultural

translation one cannot recode in one stroke a text and the culture behind it The culture has to be


developed hellip Yet the legal culture is in a very real sense already existing but embodied only in

English not in Chinese hellip Particularly it is there in the heads of Hong Kongrsquos bilingual

Lawyers who have the culture at their disposal hellip Culture always comes with the reader not the

text (p 138)

It may well seem difficult for the common Chinese language user to read cultural

meaning from the existing common law Chinese since the meaning of the common

law Chinese has to be construed against the English common law before the whole

conceptual system of the common law can be imported into the Chinese language By

pointing out that legal culture is critical to the understanding of common law Chinese

Sin highlights the significance of developing in Chinese the legal culture of the

common law Given that any legal culture resides within the competence and mastery

of legal professionals proficient in both Chinese and English one may ask how a

broadly analogous and comprehensible culture could be developed for the common

people As Sin noted that the meaning of common law Chinese is intelligible to the

legal translator who fully understands the process of translation providing the

justification of the linguistic transfer would be an effective way to tranfer the culture

which the reader has to read into the Common Law Chinese

As has been discussed in section 223 both Jakobson (1959) and Feyerabend

(1987) made clear the significance of metalinguistic operations in introducing cultural

concepts and establishing new languages in target language This applies especially to

legal translation since we can we not only formulate new languages but also

implement these languages by constructing new concepts of law In this sense the

legal translator is using metalanguage as the tool by which languages are established

in terms of other languages For example as indicated in section 422 Meijier (1950)


explained that Shenrsquos memorials were critical in understanding how and why the

foreign legal terms were translated In other words memorials as metalanguage are

vital for transmitting alien legal concepts into Chinese because they provide the

necessary theoretical framework and working principles It is now clear that apart

from linguistic transfer translation as cultural transfer is ultimately a conceptual

transfer at the metalinguistic level so that to give an account of cultural transfer in

legal translation is ultimately to give an account of how or why legal translators make

translational judgments corresponding to legal and cultural concepts Thus linguistic

transfer aiming to import the culture of the common law inevitably leads to the second

level of cultural transfermdashtransfer at the conceptual level

It is clear from the foregoing discussion that the theoretical framework for

cultural transfer in translating the common law into Chinese accommodates two levels

of transfer linguistic transfer ie transfer at the linguistic level which involves the

adjustment of Chinese language and conceptual transfer at the metalinguistic level

On this account Sin (1989 1993 1996) proposed the following general principles in

connection with translating the common law into the Chinese

(1) Fixing the semantic reference system

(2) Adjusting the target language

(3) Building metalinguistic devices to fill the conceptual gap

Cao (2004) echoes Sinrsquos first principle ldquoSuffice it to say that the Chinese translations of

common law concepts in Hong Kong need to be understood with reference to the common

law if the lsquotwo systemsrsquo are to remainrdquo (p 173) As for the second principle adjustment

on the linguistic level is a must The Chinese language has to be amplified to


accommodate new concepts Regarding the third principle there are several ways of

constructing a metalinguistic mechanism by which the ldquoconceptual gaprdquo (Joseph 1995

p34) could be bridged the ldquomissing linkrdquo (Sin 1998 p 195) could be reconnected and

the culture of the common law could be eventually transferred into Chinese

(1) Write commentaries or articles explaining why and how the translation was

done including explanatory remarks in the preface identifying the objective and

approach add footnotes in the translated work or appendannotations whenever

possible

(2) Translation of related legal works into Chinese

(3) Compiling English-Chinese legal dictionaries

Although the arduous labours of Hong Kongrsquos legal translators have succeeded

in translating a considerable body of common law terms into Chinese these are by

themselves far from sufficient to enable an understanding of the Common Law

concepts that they are supposed to convey The development of metalanguage fosters

the ability to treat language not just as a way of expressing meaning but as an object

of thought in its own right The justification of the translation in consequence can be

identified in the metalanguage where the cultural concepts are ultimately perceived

and transferred The reader once guided can turn to the metalanguage where the

usage of words in Chinese is modified and where the manner in which Common Law

concepts were translated into Chinese is explained As has been clear from our

foregoing discussion legal translation as cultural transfer takes place at two

levelsmdashlinguistic and conceptual In the next section we will analyze how these two


levels of transfers can be carried out presenting detailed analyses of selected

translations

62 Cultural Transfer in Translating the Common Law into Chinese -- Analysis

of Selected Translations

Thus far we have examined general problems in translating the common law into

Chinese and proposed the theoretical framework for viewing legal translation as cultural

transfer We have noted that transfer on the linguistic level requires adjustments of the

Chinese language thus establishing linguistic equivalents in Chinese for the source

language Such a conceptual semantic equivalence between the common law Chinese

and the original common law would eventually be achieved on the metalinguistic level

Metalanguage has proved to be effective device in transferring the culture of foreign laws

into Chinese As discussed in section 61 there are three major methods of constructing

the metalanguage for transferring the culture of the common law into Chinese In this

connection the proposed theoretical framework needs to be applied on two levels for a

thorough analysis of the cultural transfer involved 1) explain the linguistic transfer ie

adjustments of the Chinese legal language legal vocabulary in particular and 2) justify

the conceptual transfer at the metalinguistic level ie employment of metalinguistic

devices We will now explore such a two level transfer by analyzing selected translations

from the viewpoint of translated common law terminology

When translating an item of common law terminology into Chinese the legal

translator needs to conjure up a corresponding linguistic sign in Chinese which can

represent the same concept Since translation is much more than the substitution of lexical


and grammatical elements between two languages a problem arises from the very

beginning if the translator aims at finding the exact equivalent Where no such equivalent

exists the translator has to form (or redefine) a term to represent the original concept The

concept-formation process is what happens when ldquotranscodingrdquo the common law

terminology ie use Chinese to express common law concepts It has been noted that

linguistic adjustments representing a transfer on the linguistic level are indispensable for

concept-formation where there are no equivalents or only partial equivalents Chinese

legal vocabulary needs expanding and adjusting with common law concepts new to

Chinese being introduced in large numbers

Sager (1990) pointed out that the use of ldquolexical innovationrdquo including

neologisms to introduce new concepts (p 30) We can categorize the techniques

involved into two major kinds They are

(1) Lexical expansion (redefinition) by selecting an existent term in the target language

as the equivalent of the term in the source language a new definition is given to this

translating term which eventually results in the expansion of the lexical meaning

(2) Neologism a new word form may be created denoting the meaning of the

corresponding word in the SL There are several ways of coining new words in the TL

(a) Calque ie reproducing the morpheme structure of the SL lexical unit within the

means of the TL to create a new TL lexeme This approach is considered a species of

literal translation75

75 Cai Qilin (2002) points out that calque is the major technique used in translating Buddhist texts in

ancient China


(b) Paraphrase ie describing or rendering the meaning of a translated term which

has no counterpart in the TL76

(c ) Direct borrowing ie using transcription or transliteration where the TL lexicon

adopts the SL term

We will further discuss the use of above mentioned techniques and present various classes

of examples of translated common law terminology Some of these examples will also

show how the principles were adopted by the Bilingual Laws Advisory Committee77

when searching for appropriate linguistic equivalents for English legal terms As noted by

Jin amp Sin (2004) ldquoBLAC needs to scrutinize the translation by taking into account both

the legal concepts and linguistic rulesrdquo (p 90)78

(1) Translation of technical terms

For group onemdashtechnical terms which are unique to common law language and

culturemdashthe problem is that there is no Chinese equivalent What the translator has to

tackle is how best to conjure up Chinese equivalents for such technical terms given

always that such equivalents are likely to remain unreliable or speculative tools for

elucidating common law meanings or concepts

76 Also called ldquodescriptive paraphraserdquo by Šarčević (1997 p 252) 77 Under Section 4C (1) of the Official Languages (Amendment) Ordinance 1987 the independent

committee was established by the Governor on 28 October 1988 to scrutinize the translation of the

English legislation enacted before 1989 produced by the Law Drafting Division It is abbreviated as

BLAC 78 The original Chinese text is ldquo委員會審閱的內容既涉及法律概念也涉及語言規範rdquo


Valuable experiences drawn from the arduous work completed by the Hong Kong

translation team under LDD which completed the project of translating the English

common law into Chinese before 1997 reveal two possible major techniques

(a) Create new words in accordance with terminological creation principles

Forming a new term in English may involve techniques such as prefixing suffixing

and compounding As Chinese characters are pictographic they cannot be inflected as an

English word can but Chinese can form semantic representations by putting together two

or more existing linguistic forms to create a new term The principle means of word

formation is composition which has both advantages and disadvantages On the one hand

composition provides a convenient way of combining the meanings of two words to

express a new meaning Readers tend to derive the meaning of a new term which is

composed of two or more existing words simply by adding the meaning of the

components but without understanding the real meaning of the new term However when

coining new terms in Chinese composition remains a major tool Let us consider some

examples

Example 1 Chattels

The official translation for ldquochattelsrdquo is shichan (實產)79 In the common law

among the many terms relating to property chattels denotes the concept of personal

property contrasting with property relating to land The Chinese equivalent for chattels

needs to denote the concept of ldquohellip any kind of property which having regard either to 79 In Rule 27 of Chapter 6A the Chinese version for the expression ldquohellip and chattels in the possession

of the debtorrdquo is ldquo債務人所管有的hellip實產rdquo


the subject-matter or the quantity of interest therein is not freehold hellip in a more narrow

and more modern sense hellip means movable property or effects which belong personally to

the owner helliprdquo (Jowittrsquos Dictionary of English Law p 328)80

The BLAC first proposed to translate it as dongchan (動產) Later they found that

ldquo動產 as a Chinese legal concept was not an equivalent for lsquochattelrsquo embodied in the

legal concept behind the lsquoBills of Sale Ordinancersquohellip the Common Law concepts of

lsquopersonal propertyrsquo and lsquoreal propertyrsquo were not only alien to the Chinese legal concepts

it was also difficult to find their exact equivalents in the European legal system or

Canadian bilingual legislationrdquo (Minutes of the 3rd meeting of BLAC 17th September

1992 p 4) As shi (實) can be construed as shiwu (實物) ie an article or a thing thus

shichan (實產) can indicate the concept of chattels to some extent One may argue that

shi (實) can also mean shizaide 實在的 (concrete) if taken this sense real estate is also a

kind of property that is concrete ie shizaide (實在的) The Chinese equivalent cannot

pose a real contrast with real estate However it is already the best choice we have This

proves that a complete and precise understanding of the translated terminology requires

frequent reference to the common law semantic system

Example 2 Chose in action

The official translation for the term ldquochose in actionrdquo is jufa quanchan (據法權產)81

In the common law chose in action is a rather complicated and evolving concept relating

80 Further references to this dictionary will be made in the thesis and will be abbreviated as ldquoJowittrsquosrdquo 81 In Section 9 of Chapter 23 the Chinese version for the expression ldquohellip or other legal chose in actionrdquo

is ldquo或其他的法律據法權產rdquo


to property since it is a property right which can only be claimed or enforced by legal

action as distinguished from one which is enforceable by the taking of physical

possession

BLAC once considered using wuxin dongcha (無形動產) to translate this term

However they later found it unacceptable since ldquolsquochose in actionrsquo referred to property

derived from court it would be wrong to translate it as ldquo無形動產rdquo which referred to a

different conceptrdquo (Minutes of the 10th meeting of BLAC p 28) BLAC also proposed

quanwu (權物) or quanchan (權產) for ldquochoserdquo alone as it is a kind of personal property

and ldquotherefore lsquochose in actionrsquo will be translated as lsquo法據權物rsquo or lsquo法據權產rsquo and

lsquochose in possessionrsquo will be translated as lsquo實據權物rsquo or lsquo實據權產rdquo( Minutes of BLAC

Meeting Translation of the terms relating to property 1992)

However jufa quanchan (據法權產) was finally adopted as the equivalent for chose

in action Obviously jufa (據法) is a better expression than faju (法據) for it sounds more

natural and more compatible with the Chinese way of semantic expression Jufa (據法)

can be properly construed as gengju falu (根據法律) while faju (法據) sounds more

awkward Quanchan (權產) is better than quanwu (權物) since chose is considered as a

kind of personal property Therefore the translation for property should be consistently

chan (產) instead of wu (物) In Mainland China there are mainly two translations for this

term One translation is quanli dongchang (權利動產) which emphasizes that it is a kind

of quanli 權利 (right) relating to property (Xu 2004 p 296) The other translation is

sutiwu (诉体物) which sounds rather awkward and the emphasis is placed on the meaning

of susong 诉訟 (action) (Shi trans 1998) The official translation in Hong Kong is the

best of the three available since it effectively conveys the legal meaning of the English

term and seems more transparent to the readers


Example 3 Fee simple

The term ldquofee simplerdquo is translated as yongjiu chanquan (永久產權)82 In the

common law ldquofee simplerdquo describes the absolute title to land The term consists of two

words ldquofeerdquo and ldquosimplerdquo Fee means an estate of inheritance in real property while

simple means absolute or without limitation Thus fee simple is the largest recognized

estate in land a title without limitation or end The legal meaning of such a technical term

is clear Accordingly the Chinese equivalent of this term typically consists of two

existing Chinese words yongjiu (永久) and chanquan (產權) meaning permanent title to

real property The Chinese equivalent is easily understood One can see that this is

ownership which lasts forever but this in fact conveys only one essential part of the

meaning of fee simple The full and exact meaning resides in and must be retrieved from

the common law Fee simple is not only permanent ownership of indefinite duration but

something freely transferable and inheritable and is thus used to describe ldquoa freehold

estate of inheritance absolute and unqualified It stands at the head of estates as the

highest in dignity and the most ample in extentrdquo (Jowittrsquos p 779)

Example 4 Estoppel83

82 In Section 6 of Chapter 1014 the Chinese version for the sentence ldquohellip shall vest in the trustees in

fee simplerdquo is ldquo須以永久產權形式歸屬受託人rdquo 83 According to Jowittrsquos estoppel is ldquoa rule of evidence whereby a party is precluded from denying the

existence of some state of facts which he has previously asserted An action cannot be founded on an

estoppel hellip Unlike other evidence an estoppel must be pleaded An estoppel may be waivedrdquo (p 725)


The translation for the ldquoestoppelrdquo is burong fanhui fa (不容反悔法)84 Estoppel is a

very complex legal term dealing with the role of conscience and truth in a court

proceeding It ldquohellip is a principle of justice and of equity It comes to this when a man by

his words or conduct has led another to believe in a particular state of affairs he will not

be allowed to go back on it when it would be unjust or inequitable for him to do sordquo

(Denning MR p241)85 The doctrine of estoppel evolved over a period of one hundred

years to become a general principle in the common law

The Chinese translation of this technical term is phrasal in form and combines the

meanings ldquonot permittedrdquo (burong 不容)ldquodenyrdquo (fanhui 反悔) and ldquorulerdquo (fa 法)86 We

can partly understand the meaning of this newly created Chinese term from its form

However we still need to resort to the common law to understand it fully87 In Mainland

China there are several different translations for this term such as jinzhi fangong (禁止翻

供)jinzhi fanhui (禁止反悔)bude fouren (不得否认) (Shen 1993 p 65)jinzhi

fanyan(禁止反言) (Li 1988 p 596) and jin fanyan (禁反言) (Yang 1997 p 124) By 84 In Section 98 of Chapter 528 the Chinese version for the expression ldquolaw of estoppelrdquo is ldquo不容反悔

法rdquo 85 Denning MR in Moorgate Mercantile Co Ltd v Twitchings [1976] 1 QB 225 CA at p241 86 Susie Dent (2004) a language expert has an observation about the coined words The

extraordinary thing about new words is that probably only about one percent of them are new Most are

old words revived and adapted (p 8) Thus Semantic change of an old word namely specialisation

generalisation and metaphorical change of a word is a common way of coining new words 87 Stroundrsquos Judicial Words and Phrases also gives an interpretation of the term

Estoppel is a complex legal notion involving a combination of several essential

elementsmdashstatement to be acted upon action on the faith of it resulting detriment to the actor

Estoppel is often described as a rule of evidence as indeed it may be so described But the

whole concept is more correctly viewed as a substantive rule of law hellip Estoppel is different

from contract both in its nature and consequences But the relationship between the parties

must also be such that the imputed truth of the statement is a necessary step in the constitution

of the cause of action But the whole case of estoppel fails if the statement is not sufficiently

clear and unqualified (p 943)


comparison the official translation in Hong Kong is better since it conveys the legal

meaning of the English term more precisely emphasizing that estoppel is an important

legal principle in the common law

We can see that compound terms are essential in creating Chinese equivalents for the

technical terms Sager (1990) laid out the principles for such term creation88 However

he also acknowledged that the communicative dimension of term creation should be

considered relatively less important Perfect communication could never be achieved as it

required that ldquohellip the recipientrsquos state of knowledge after reception of the text corresponds

exactly to the senderrsquos intention in originating the messagerdquo (Sager 1990 p 100) In the

present case the target readers could be both legal specialists and ordinary people and

their knowledge of the law might differ greatly It is not possible for translators to take the

knowledge scope of all their readers into consideration To assume that a Chinese

translation can ever be produced which will be fully understood by Chinese native

speakers is entirely fallacious since the English common law is opaque for most English

native speakers To transfer the cultural meaning of common law terminology will always

requires conceptual adjustments of the translating language ie Chinese

(b) Adopting an existing word and assigning a new meaning to it89 88 Sager (1990) pointed out that ldquothe International Organization for Standardization (ISO) has for many

years been concerned with providing guidance on the creation of terms hellip ISO document ISOR 704

(Naming Principles)rdquo (pp 88-89) Sagerrsquos highly idealistic requirements include ldquoThe term must relate

directly to the concept the term must be lexically systematic hellip there should be no synonyms

whether absolute relative or apparent hellip terms should not have homonyms hellip be monosemicrdquo (pp

89-90) 89 The English lexicographer Susie Dent (2004) observes of coined words The extraordinary thing

about new words is that probably only about one percent of them are new Most are old words revived

and adapted (p 8) Thus semantic change of an old word namely specialization generalization and

metaphorical change is a common means of coining ldquonewrdquo words


Creating a new word may not always be the best way of translating terms of art in

the common law In some circumstances lexical expansion (redefinition) is another

option Examples include plaintiff (yuangao ren 原告人) defendant (beigao ren 被告人)

petitioner (chengqing ren 呈請人) respondent (dabian ren 答辯人)90 The legal translator

adopts the existing Chinese legal terms as the translations for the above three technical

terms in the common law However we should be aware that as Chinese equivalents for

common law terms they have different connotations under different legal systems

(2) Translation of semi-technical terms

Semi-technical terms ldquoare much more numerous and their number is constantly

growing as the law changes to meet the developing needs of a societyrdquo (Alcaraz amp

Hughes 2002 p 17) Moreover their semantic meanings are much more complicated

thus constantly setting traps for the translator and creating a labyrinth of semantic

connotation ambiguity partial synonymy and context-dependence A number of such

legal terms may not have a fixed legal meaning in the source text as they will carry

different and specific legal meanings in differing contexts these meanings being

90 BLAC came to a final decision after a number of meetings It once had the following list showing

the proposed Chinese translations for ldquodefendantrdquo ldquoespondentrdquo etc

Existing translation LDDrsquos

Proposal

1 Plaintiff 原告人原告人

2 Defendant 被告人答辯人

3 Respondent 答辯人應訴人

4 Petitioner 入稟人入稟人

5 Accused 被告被告

(Minutes of the 22nd meeting of BLAC p 7)


determined either by the definitions given within the context or by knowledge imported

from common legal practice When translating most of such terms there is no need to

deliberately create new equivalent terms in Chinese since most of them already have

Chinese equivalents for their ordinary meanings As such terms can be further divided

into three sub-categories a variety of translation methods will be discussed

(a) For the first typemdashwhere the legal meaning of the term is shared with its core

meaning the established Chinese equivalent will be adopted However we need to

refer to metalinguistic devices to redefine the meaning in a common law context The

following examples illustrate the nature of the problem

Example 1 Abandonment

Since this term has several legal meanings in the common law one of the official

translations for the term is fangqi (放棄)91 The core meaning of the term is to leave

completely to give up or withdraw One of its legal meanings is shared with its core

meaning ie ldquothe relinquishment of an interest or claimrdquo (Jowittrsquos p 3) So it could

be the ldquoabandonment of a vessel by the crewrdquo ldquothe surrender of a child to an adopted

parentrdquo or an abandonment of possession a right an undertaking or a contract

(Strouds Judicial Dictionary of Words and Phrases p 4)92 In all the above contexts

the existent Chinese term fangqi (放棄) is adopted to convey the said legal meanings

Example 2 Attempt

91 The heading Section 6 of Chapter 221G is ldquoabandonment of applicationrdquo and the Chinese version

reads ldquo申請的放棄rdquo 92 Further references to this dictionary will be made in the thesis and will be abbreviated as ldquoStroudrsquosrdquo


The official translation for ldquoattemptrdquo is qitu (企圖) The legal meaning of the term is

shared with its core meaningmdashto make an effort at something However as a common

law offence the term attempt is a rather complex legal concept and has been used in a

technical way Attempt ldquois an offence to do any act which is a step not being a merely

preparatory one towards the commission of an offencerdquo (Roebuck 1995 p 73)93 Thus

the legal intention or intent is an essential constituent of the offence of attempt to commit

a crime BLAC once proposed to borrow weixu zui (未遂罪) as used in Mainland China

and Taiwan as the translation However it later found that the concept behind weixu zui

ldquo未遂罪rdquo did not coincide exactly with that of ldquoattemptrdquo in the common law So after

rounds of discussions it finally adopted the existing Chinese term expecting that legal

experts or readers would turn to the numerous case laws to interpret the Chinese

equivalent of the term (Minutes of 10th meeting of BLAC p 12)94

Example 3 Confession

The official translation for ldquoconfessionrdquo is gongren(供認)95 The act of telling or

making known something that is seen as wrong or damaging to oneself is the core

meaning of the term In its legal usage it refers to telling the crime one has committed

93 It is ldquoan endeavour to commit a crime or unlawful act the doing of some offence an act done with

intent to commit a crime and forming part of a series of acts which would constitute its actual

commission if it were not interruptedrdquo (Jowittrsquos p 115) 94 Roebuck (1996) used the Chinese equivalent weixu zui (未遂罪) in the book Digest of Hong Kong

Criminal Law (p 39) However in the Index and Glossary of the book attempt was translated as qitu

zui (企圖罪)

95 In Section 51 of Chapter 227 the Chinese version for the expression ldquothe confession of the

defendant rdquo is ldquo被告人的供認rdquo


which can be admitted as evidence96 While gongren (供認) is capable of conveying the

termrsquos fundamental concept it should always be construed with reference to its common

law legal context This involves noting inter alia that ldquoIn civil procedure a confession is

a formal admission In criminal law a confession is an admission of guilt made either

judicially that is in the course of a judicial proceeding or not Judicial confession may

operate as an estoppel and if plenary is sufficient to found a conviction as where a

prisoner pleads guilty An extrajudicial confession never operates as an estoppelrdquo

(Jowittrsquos p 415)

Example 4 Negligence

The term ldquonegligencerdquo is officially translated as shuhu (疏忽)97 The core

meaning of the term is failure to act with the prudence In the common law

ldquonegligence is not just a state of mind but rather the failure to meet an objective

standard of behaviour the standard of conduct expected of a reasonable person helliprdquo

(Roebuck 1995 p 20) Since part of the termrsquos legal meaning overlaps with its

ordinary meaning the ordinary Chinese equivalent was adopted as its legal equivalent

In the common law the term ldquonegligencerdquo is a rather complex legal concept in the

law of tort The concept of negligence is central to the tort system of liability The

negligence concept centres on the principle that every individual should exercise a

96 Stroudrsquos gives interpretation for the term ldquoconfessionhellipis an admission the words of which

considered objectively and in their context expressly or substantially or inferentially admit guilt

(Anandagoda v R [1962] 1 WLR 817)rdquo (p 547) 97 In Chapter 71 the Chinese version for the expression ldquonegligence or other breach of dutyrdquo is ldquo疏忽

或其他不履行責任rdquo


minimum degree of ordinary care so as not to cause harm to others98 Thus duty of

care breach of the duty causality and injury are four essential elements of the offence

of negligence There is a long list of judicial interpretations for this term running to 21

entries in Stroudrsquos Again the legal concept of negligence could only be properly

construed against the semantic referential scheme of the common law

Example 5 Public Place

The term ldquopublic placerdquo is translated into gongzhong defang or gongzhong

changsuo (公眾地方公眾場所) which at first glance seems the same as the termrsquos

ordinary meaning in Chinese However a close examination would show that the

legal meaning of the term is not exactly the same since ldquothis expression occurs in

many Acts of Parliament which declare such and such a thing to be an offence if done

in a lsquopublic placersquo In each case the meaning depends upon the context and upon the

object of a statute A place may be a public place at one time and not at other timesrdquo

(Jowittrsquos p 1461) Strouds also has 21 entries for case law definitions and the Hong

Kong Ordinances also contained their own definitions99 The legal meaning of the

98 The term negligence has ldquotwo meanings in the law of tort it may mean either a mental element

which is to be inferred from one of the modes in which some torts may be committed or it may mean

an independent tort which consists of breach of a legal duty to take care which results in damage

undesired by the defendant to the plaintiff rdquo (Jowittrsquos p 1227) 99 Section 3 Interpretation of words and expressions of Chapter 1 INTERPRETATION AND

GENERAL CLAUSES ORDINANCE in the Hong Kong Ordinances stipulates

public place (公眾地方公眾埸所) means-

(a) any public street or pier or any public garden and

(b) any theatre place of public entertainment of any kind or other place of general resort

admission to which is obtained by payment or to which the public have or are permitted to have

access


term is thus heavily context-dependent100 It should be noted that translation of such a

semi-technical term usually needs much research on the part of the legal translator

including an examination of its different common law contexts

(b) For the second typemdashwhere part of the legal meaning of the term overlaps with its

core meaningmdashwe can once again use the ordinary Chinese equivalent plus lexical

expansion or we can create a new term The legal meaning of these terms can be

inferred from various interpretations of cases Therefore frequent reference to the

cases is a better way to understand meanings in different contexts Examples include

the following

Example 1 Discharge

The two main entries for ldquodischargerdquo in the official translations are jiechu or jieyue

(解除 or 解約) In its ordinary usage the core meaning of discharge is to relieve of

obligation responsibility etc In its legal usage meanings differ with different contexts

and part of the legal meaning overlaps with the ordinary meaning When used in the sense

of ldquoto discharge a right or obligationrdquo101 or to be ldquofreed from hellip debts provable in the

100 Roebuck (1995) also pointed out the different interpretation of the term in different contexts in the

Hong Kong case laws

The phrase lsquopublic or a section of the publicrsquo was discussed in Wong Pik-har [1987] HKLR 373

private premises may also be a public place A shop is a public place while it is open Ng

Chun-yip [1985] HKLR 427 Similarly the corridor of a domestic building is at all times a

public place hellip In Lam Shing-chow CA 18385 it was held that a common corridor on the

twelfth floor of a private building was not a public place because neither the public nor a section

of the public were permitted access to it (pp 164170) 101 For example in section 33 of Chapter 29 ldquoa good dischargerdquo is translated as ldquo充分的責任解除rdquo


bankruptcyrdquo (Jowittrsquos pp619-20)102 the existing Chinese equivalent jiechu (解除) was

adopted When used in the law of contract a discharge of contract means that the contract

is no longer binding Therefore another Chinese term jieyue(解約)103 was adopted to

express this concept

Example 2 Malice

The term ldquomalicerdquo is officially translated as eyi (惡意)104 When used as an ordinary

term malice means desire to cause pain injury or distress to another However this term

as applied to the common law does not necessarily mean that which must proceed from a

spiteful malignant or revengeful disposition but a wrongful act injurious to another The

Chinese equivalent eyi (惡意) also means spiteful mind but should be construed with

reference to its common law meaning105 We will further analyze in this section the

translation of malice in the context of translating the case law into Chinese to show the

significance of building a metalanguage and developing the semantic referential system of

the common law in Chinese

Example 3 Remainder

102 For example in section 30 of Chapter 401 ldquodischarge from bankruptcyrdquo is translated as ldquo解除債

務rdquo 103 For example in section 18 of Chapter 23 ldquodate of dischargerdquo is translated as ldquo解約日期rdquo 104 In Section 51 of Chapter 221 the Chinese version for the expression ldquostands mute of malicerdquo is ldquo出

於惡意而保持緘默rdquo 105 According to Jowittrsquos malice is ldquoa formed design of doing mischief to another technically called

militia praecogitata or malice prepense or aforethought hellip malice in common acceptance means

ill-will against a person but in its legal sense it means a wrongful act done intentionally without just

cause or excuserdquo (p 1136)


The official translation for the term ldquoremainderrdquo is shengyu quanyi (剩餘權益)

When used as an ordinary term remainder means something that remains or is left In its

legal usage remainder means the interest in land or property owned by a person who

enjoys no benefit from the property now but expects to come into possession in due

course of time and the term is thus used in rather technically in the law of property

Therefore a new compound term shengyu quanyi (剩餘權益) was created to express

this concept The term is obviously composed of two Chinese terms shengyu (剩餘

remaining) and quanyi (權益 interest)

(c) The third typemdashwhere the legal meaning of the term totally deviates from its ordinary

meaningmdashcan be treated in the same way as terms of the first type ie terms of art or

legal terms having a technical meaning The two major approaches are the creation of

a new term or the adoption of existing term with redefinition


The other official translation for the term as used in the expression ldquonotice of

abandonmentrdquo is weifu tongzhi (委付通知)106 This legal meaning is totally different

from the core meaning It should be thus noted that ldquo the word lsquoabandonrsquo is one in

ordinary and common use and it in its natural sense well understood but there is not

a word in the English language used in a more highly artificial and technical sense

that the word lsquoabandonrsquo in reference to constructive total loss it is defined to be a

cession or transfer of the ship from the owner to the underwriter and of all his

property and interest in it with all the claims that may arise from its ownership and

all the profits that may arise from it including the fright then being earned (per Martin 106 We can find the term in Section 57 of Chapter 329 Marine Insurance Ordinance


B Rankin v Potter 42 LJCP 169 at p 200)rdquo (Stroudrsquos p 3) Therefore a new

Chinese term was created as the equivalent for this term in order to convey effectively

the common law legal concept

Example 2 Personal Representative

The official translation for the term ldquopersonal representativerdquo is yichan daili ren

(遺產代理人) The ordinary meaning of the term is a person who manages the affairs

of another In its legal usage it means ldquoexecutors and administrators whether acting

with regard to personal property or with regard to real propertyrdquo (Jowittrsquos p 1356)

This legal meaning deviates from the termrsquos ordinary meaning and a new Chinese

term was coined to express the concept instead of using its equivalent in Chinese as

ordinary term ie geren daibiao (個人代表)107

Example 3 Warranty

The two official translations of ldquowarrantyrdquo baozheng (保證) and baozheng tiaokuan

(保證條款) capture two different legal meanings The core meaning of the term is a

guarantee or assurance One of its legal meanings overlaps with the core meaning and is

thus translated as baozheng (保證)108 The other legal meaning is ldquoa subsidiary term in a

contract as distinct from a vital term which is called conditionrdquo (Jowittrsquos p 2979)109

107 Stroudrsquos interpretation of this term reads ldquothis phrase (except when otherwise controlled by a

context) is synonymous with legal representativerdquo (p 2014) 108 The heading Section 33 of Chapter 329 is ldquoNature of warrantyrdquo and the Chinese version reads ldquo保

證的性質rdquo 109 Section 2 of Chapter 26 gives the interpretation of the term ldquowarrantyrdquo


Thus in the law of contract warranty is different from condition since a breach of

condition justifies the termination of the contract while a breach of warranty does not110

This legal meaning deviates from the termrsquos core meaning and is thus officially translated

into baozheng tiaokuan (保證條款) which is a newly created compound term in Chinese

One might well think that baozheng tiaokuan (保證條款) has a close connection with

baozheng (保證) but as a matter of fact they express two different common law concepts

Another suggested translation is ciyao tianjian (次要條件) which is also a testimony to

the value of neologism and may convey the legal meaning of warranty against condition

more precisely111 In this case the creation of a new term would seem a better choice

Thus far we have illustrated the process of translating common law terminology

where adjustments of the Chinese legal vocabulary on the linguistic level and frequent

reference to the semantic referential system of the common law are both indispensable

It will be remembered that in section 61 of this chapter we have already provided a

summary of the metalinguistic tools that could be employed by the legal translator on

ldquowarranty (保證條款) means an agreement with reference to goods which are the subject of a contract

of sale but collateral to the main purpose of such contract the breach of which gives rise to a claim for

damages but not to a right to reject the goods and treat the contract as repudiated

(Amended 59 of 1989 s 20) 110 Lord Denning in Oscar Chess Ltd v Williams [1957] 1WLR 370 111 Zhao (1995) also discusses the translations of condition and warranty She remarks

In Chinese legal terminology we have zhuyao tiaokuan (主要條款 major terms) and ciyao

tiaokuan (次要條款 subordinate terms) But the Chinese contract law does not take the same

approach as Common Law to distinguish between terms in order to determine remedies hellip It

is submitted that the better choice will be the use of functional equivalents zhuyao tiaokuan

(主要條) and ciyao tiaokuan (次要條款) to express ldquoconditionrdquo and ldquowarrantyrdquo Both Chinese

terms can achieve the desired legal effects (pp 300-01)

Functional equivalence is not a good choice for translating the common law into Chinese since it

will result in confusion between the legal terms used in different legal systems


the conceptual level to effect cultural transfer Let us scrutinize these methods of

constructing a metalinguistic mechanism

(1) Appending translatorrsquos preface or footnote or any other commentaries or

explaining why and how the translation was done in related articles

The classic example here is the ldquoMemorialsrdquo in which Shen Jiaben expounded the

translated concepts of foreign laws already referred to in section 422 Especially

where the translation of Hong Kong Ordinances is concerned we find that legal

translators strive to spell out explanatory remarks identifying the translation objective

and approach and explain why and how the translation was done in related articles

The Bilingual Laws Information System (BLIS) is a valuable database of laws of

Hong Kong providing both English and Chinese versions of the current laws of Hong

Kong a glossary and other useful information which testifies to the impressive

translation project completed by the former Legal Department under the supervision

of the Bilingual Laws Advisory Committee (BLAC)112 The minutes of BLAC

meetings also serve as important metalanguage explaining how and why the

translations are made as shown by our discussions above Another method which is

particularly important is the translatorrsquos notes which he adds to the translated text to 112 Thus the Law Drafting Division of the Department of Justice as the statutory body of translating

the Common Law into Chinese has created as its flagship product the BLIS (Bilingual Laws

Information System) one of the largest ever legal databases and a valuable metalinguistic tool With its

many products including a CD-ROM English-Chinese Glossary of legal terms published in 1995 and a

Chinese-English Glossary of Legal Terms published in December 1999 the Law Drafting Division of

the Department of Justice has made very significant efforts to enhance the learning of common law

terminology and promote the Chinese semantic referential system of the common law It also writes

articles on bilingual legal issues for the well received magazine Hong Kong Lawyer


give some specifications or provide further information Necessary knowledge of the

context can be given more effectively through explanations in the text or in footnotes

But in translating the common law legislation this format may not prove practical If

we look at the current English Ordinances of Hong Kong we find that Chapter One

Interpretation and General Clauses Ordinance provides overall guidance on how to

interpret the Chinese equivalent for the English terminology with reference to the

common law context Every chapter also has a section headed ldquoInterpretationrdquo which

gives the proper construction of some English terms used in the ordinance

supplemented with their Chinese equivalents This is a significant step providing a

conceptual link between English terms and their Chinese equivalents and in fact

serves much the same function s a translatorrsquos note If we look at the ldquoDiscussion

Paper on the Laws in Chineserdquo prepared by the Attorney Generalrsquos Chambers of Hong

Kong we find there a statement concerning the use of metalanguage ldquothe

Interpretation and General Clauses Ordinance should be amended hellip to deal with the

problem of a discrepancy between the meaning of the English text of a law containing

an expression of the Common Law and the Chinese text using an expression which is

not one of the Common Lawrdquo Also the methodologies employed in the process of

establishing well-formed Chinese equivalents for common law terminology have been

clearly set out by the Law Drafting Division of the Department of Justice in a number

of articles in Hong Kong Lawyer the official journal of the Law Society of Hong

Kong113 113 An article provided by The Law Drafting Division of the Department of Justice examines the need

for the gradual development of standard Chinese terms to explain Common Law and statutory concepts

An extract reads

When selecting the Chinese term we must consider the lsquoadequacyrsquo and lsquoacceptabilityrsquo of the

term hellip Usually semantic mapping is used for legal translation There are two ways of semantic

mapping One is to employ an existing Chinese term to represent a Common Law concept The

other is to coin a new Chinese legal term by combining existing morphemes Bilingualism in the



The following legal works have already been translated into Chinese (a) reports

of Chinese cases in the Hong Kong Law Reports and Digest and Hong Kong Cases (b)

important cases provided by the Judiciary and some law reports have been published

in both English and Chinese versions (c) Hong Kong Lawyer as the official

magazine of the Law Society of Hong Kong carries a section which provides the

Chinese translations of key legal phrases taken from judgments (d) 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 Kong114 In addition to the above works it is also desirable to

translate specialized Common Law dictionaries into Chinese such as A Dictionary of

Modern Legal Usage115 Strouds Judicial Dictionary of Words and Phrases and

compile books focusing on the legal concepts of Common Law such as Digest of Case

Law Principles

Common Law necessarily involves the use of Chinese A collection of Chinese Common Law

terms that are stable and clear will assist greatly in the development of bilingualism in the

Common Law For this purpose if there is standardisation of the translation of Common Law

concepts these concepts will be matched more readily with their Chinese equivalents This is

beneficial for the lsquorootingrsquo of the Common Law in the Chinese language and provides standard

Chinese references for Common Law concepts hellip Standardisation of the translations will

expedite the absorption of Common Law concepts by the Chinese language Standardisation of

translations for Common Law concepts is also beneficial for judicial interpretationhellip

Nevertheless a translation produced with due regard to all these factors will be much more

concerned with lsquoadequacyrsquo and may lack lsquoacceptabilityrsquo as it presently stands (in ldquoThe Common

Law and the Chinese Languagerdquo Hong Kong Lawyer February 1999) 114 This is a project conducted by Roebuck Derek and King-kui Sin 115 In its first edition A Dictionary of Modern Legal Usage became a classic in its field The first

comprehensive guide to legal style and usage it filled a gap in reference literature by giving practical

advice on how to write clear jargon-free legal prose


(3) Compiling an English-Chinese legal dictionary

Another efficient way to build the semantic referential system for the Chinese

equivalents of common law terms is to compile a dictionary with commentary We

have demonstrated that the basic requirement in translating terminology is to achieve

semantic equivalence However semantic equivalence alone is not enough since

meanings can often only be worked out when terms are considered in context and

when the cultural concept of terms is properly transferred Such contextual knowledge

can be supplied by amplifications in the translated text (footnotes) or separately in

appendices (glossaries) Adequate cross-referencing of entries thus seems an ideal

metalinguistic tool to establish a common law semantic reference system116 The

Hong Kong English-Chinese Legal Dictionary (2005) published by Butterworth is a

good recent example of its kind

To illustrate the two levels of cultural transfer and further justify the conceptual

transfer at the metalinguistic level further analysis of selected translations will be

furnished The foregoing discussion shows where new terms are created in Chinese

their meaning may seem transparent and can be easily identified Yet the reader still

needs to resort to metalanguage to understand the concepts of the newly-created terms

In translating semi-technical terms legal translators often employ lexical expansion

using an existing Chinese term to express the new common law concept This makes

it difficult for the reader to determine whether the term is common law Chinese or

116 Trsquosou amp Kwok (2003) also point out the immaturity of English-Chinese dictionaries in Hong Kong

There are many comprehensive English dictionaries of law (eg Garner 1999) but standard

references for legal Chinese in Hong Kong have not matured to the same level Most of them

exist in the form of a glossary with only very crude definitions if any (eg Department of

Justice 1998 Department of Justice 1999 Li amp Poon 2000) (p 612)


ordinary Chinese In such a case it is even more important to resort to metalanguage

as a mirror for cultural transfer at the conceptual level

The analysis of translated legal terms serves as the paradigm of cultural transfer

at the lexical level Discussions of translated legislative texts and judgments would

further illustrate the operation of cultural transfer In addition translation of the

judgments itself is of vital importance to construct the metalanguage since judgments

are not only important because they settle specific disputes and contain solutions to

legal problems but also because they have shaped much of the culture of the law ie

legal concepts and legal principles We shall take the example of translations of the

term ldquomalicerdquo in the legislation and case law as a simplified case to illustrate cultural

transfer on the textual level We will analyze how the legal concepts and legal

principles relating to ldquomalicerdquo are developed in the case law117

117 Poon (2005) points out that BLAC used to refer to the case law in defining the Common Law terms

She also uses the example of ldquomalicerdquo defined thus

In law an act is malicious if done intentionally without just cause or excuse (per Bayley J

Bromage v Prosser 4B amp C 255)

1 ldquoMaliciouslyrdquo means and implies an intention to carry out an act which is wrongful to the

detriment of another (Mogul Co v McGregor[1892] AC 25 (HL))

2 The word ldquomalicerdquo refers not to intention but to motive (R v Tolson (1889) 23 QBD 168)

3 Where any person wilfully carries out an act injurious to another without lawful excuse he

does it maliciously (per Lord Blackburn R v Pembliton (1874) LR 2 CCR 119)

4 Where a person has a malicious intent against another and in carrying it out injures a third

person he is guilty of malice against the person he has injured (per Coleridge v Latimer 17

QBD 359)

5 ldquoMaliciouslyrdquo in S 16 Offences Against the Person Act 1861 means ldquowilfully or intentionally

and without lawful excuserdquo (R v Mowatt [1968] 1 QB421)

6 For a person to be guilty of ldquomalicious woundingrdquo mere recklessness is not enough (W (A

Minor) v Dolbcy [1983] Crim LR681) (p 319)


Example 11 (legislation)

In an action for a libel contained in any newspaper it shall be competent to the defendant to set up

as a defence that the libel was inserted in the newspaper without actual malice and without gross

negligence hellip (Cap4 Sect 21)

The official translation is as follows

在因任何報刊刊載的永久形式誹謗而進行的訴訟中被告人有權提出在該報刊刊登的永久形

式誹謗並不含實際惡意亦無嚴重疏忽hellip(第 4 章第 21 條)

We see that ldquomalicerdquo is translated as eyi (惡意) which is also an ordinary Chinese

term Evidently the legal translator has employed the technique of lexical expansion to

give it new meaning On the linguistic level the common law term ldquomalicerdquo has been

successfully encoded as eyi (惡意) in Chinese and we can appropriately say that eyi

(惡意) is the semantic equivalent of ldquomalicerdquo Now let us see how translations of the

excerpted case law transfer the legal culture at the metalinguistic level By translating

the excerpted judgments the concept of ldquoactual malicerdquo in the common law and

related legal principles especially in defamation cases can be transferred into

Chinese

Example 12 (judgment)

There are two sorts of malice malice in fact and malice in law the former denoting an act done

from ill-will towards an individual the latter a wrongful act intentionally done without just cause

or excuse118

118 Bayley J in Bromage v Prosser


Translation by the author is as follows

惡意分兩種事實惡意與法律上的惡意前者指對他人出自的惡意行為後者是蓄意的錯誤

作為且沒有確當的原因或辯解


Express or actual malice is ill will or spite towards the plaintiff or any indirect or improper

motive in the defendants mind which is his sole or dominant motive for publishing the words

complained of


顯明惡意或實際惡意是在被告的思想中對原告存有或非直接的不恰當的動機且此動機

為被告在發佈他所被控的言辭時獨有或主要動機


Malice could also be established by inference if the court was satisfied that the defendant did not

believe what she said was true or she knew or believed that the defamatory statements were

false119


惡意可被推定建立如法庭信納被告不相信她自己所說的是事實或她知道或相信誹謗的陳述

是假的

119 HO PING KWONG V CHAN CORDELIA [1989] 2 HKC 415



Where a person kills another in the course or furtherance of some other offence the killing shall

not amount to murder unless done with the same malice aforethought (express or implied) as is

required for a killing to amount to murder when not done in the course or furtherance of another

offence (Cap339 Sect 2)


(1) 凡殺人行為並非在犯其他罪行的過程中或為了進行其他罪行而作出而該殺人行為

必須具備某種(不論是明示或默示的)的預懷惡意(下稱ldquo前述預懷惡意rdquo)方足以構成謀

殺罪則任何人如在犯其他罪行的過程中或為了進行其他罪行而殺死他人其殺人

行為除非具備與前述預懷惡意相同的預懷惡意否則不構成謀殺罪(第 339 章第 2

條)

When faced with such a legislative text the legal translator must delve into the

cultural concepts of the specified legislation in order to produce a Chinese legal text

with the same meaning The ordinance belongs to an important branch of the

Common Lawmdashthe criminal law and deals with one offence in criminal law murder

The doctrine presumes malice aforethought on the basis of the commission of a felony

inherently dangerous to human life Now let us look at how the concept of ldquomalice

aforethoughtrdquo is defined in the case law120

120 Roebuck (1995) also explained malice aforethought (express or implied) in his Hong Kong

Criminal Law which provided the Chinese translation of the judicial interpretations lt杀人罪條例gt第 2 條第(1) 款提到ldquo明示的或默示的rdquo 惡意預謀明示的惡意指殺人的故

意默示的惡意指重傷的故意[見常威強 Tsang Wai-keung(1973)]HKLR 159 一案 (p 84)



There is no doubt that murder is killing with malice aforethought and there is no doubt that

neither the word malice nor the word aforethought is to be construed in any ordinary sense

The whole phrase is to be interpreted according to principles that have been laid down in

decided cases Next it is clear that there is malice aforethought if a person kills with intent to kill

or do grievous bodily harm see R v Vickers121


毫無疑問謀殺就是ldquo有預懷惡意的rdquo 殺人且毫無疑問的是ldquo惡意rdquo 一詞與ldquo預懷rdquo 一詞都不

可用它們平常的意思來理解這個詞組應按照先例中定下的法律原則來解釋其次很明

顯凡有人意圖殺人或嚴重傷人必有預懷惡意存在


We are not here concerned with the meaning of malice in the Common Law definition of murder

still less with its meaning in relation to the law of libel and slander where indirect motive is of

importance There is no case other than R v Syme and R v Johnson (with which we will presently

deal) in which it has ever been suggested that indirect motive has anything to do with the

meaning of the word maliciously in Acts creating criminal offences122


在此我們並不是要討論在惡意一詞在普通法謀殺罪定義中的意思更不是要討論它在誹謗

法中的意思在這兩者中非直接的動機佔有重要位置沒有其他案例能象在 R v Syme

121 All England Law Reports1973Volume 3 R v Hyam - [1973] 3 All ER 842 122 All England Law Reports1969Volume 3 R v Solanke - [1969] 3 All ER 1383


和 R v Johnson 案件中(這是我們目前審理的案件)非直接的動機與ldquo惡意地rdquo 一詞在法例

中構成刑事罪行的意思更為相關

We can observe that the common law standard of malice generally required the

tort law to support an award of punitive damages In the law of slander we can see

that malice is one of the elements of liability and the plaintiff may meet a case of

privilege thus made out on the part of the defendant by proving actual malice that is

actual intent to cause the damage complained of In dealing with the criminal law an

act malicious in common speech means that harm to another person was intended to

come of it and that such harm was desired for its own sake as an end in itself

Therefore as discussed in section 61 legal translation as cultural transfer takes place

at two levelsmdashlinguistic level and conceptual level When translating the term

ldquomalicerdquo in the legislation the legal translator produces the Chinese equivalent for the

term on the linguistic level by adjusting the translating language Metalinguistic

devices should be built in order to transfer all the cultural elements behind this legal

term into Chinese One effective method is to translate the judgments related to the

legal concept under review The above translations of excerpted legislation and

judgments serve as a simple example of the type of work needed to establish the

metalanguage of the common law in Chinese

Using study of cultural transfer in legal translation in this thesis as its basis a

more comprehensive examination of the translation of legislation and judgments

relating to legal terminology could be an interesting field of further research This

might include the translation of legislation and judgments relating to legal

terminologies studied previously such as abandonment fee simple chose in action

chattel confession and warranty to name a few To conclude transfer of the culture

of the common law into Chinese requires adjustments on both the linguistic and


conceptual level in particular the building of metalinguistic tools in Chinese until the

whole semantic reference system of common law Chinese is eventually laid bare

Chapter 7

Concluding Remarks

We began this study by reflecting on the notion of cultural transfer in translation theory

As noted in the introductory chapter translation theorists expended much effort in developing

theories centering on linguistic transcoding especially on linguistic equivalence The

characterization of translation as cultural transfer is an outcome of the cultural turn in

translation theory

We have particularly in section 21 noted that the notion of cultural transfer when

employed to characterize translation as a socio-cultural activity as opposed to a mere act of

linguistic transcoding can be understood in two diametrically opposite senses On the one

hand it is taken to mean the mapping of cultural elements of the source text onto their

equivalents in the culture of the target text On the other hand it is taken to mean the

importation of the source culture into the target culture which necessitates linguistic and

conceptual adjustments of the translating language Understood this way translation as

cultural transfer requires that a choice be made between the two basic translation strategies

ie domestication and foreignization The cultural concepts of the source language may be

either domesticated in order to facilitate cross-cultural communication or foreignized by

making both linguistic and conceptual adjustments of the target language As has been

pointed out in section 22 translation as cultural transfer is no longer a matter of finding

linguistic equivalents between languages but rather an operation of creating conceptual

semantic equivalence on the metalinguistic level Thus understood foreignization is simply a

metalinguistic operation whereby cultural transfer is effected

CONCLUDING REMARKS 190

The clarified notion of cultural transfer is vital for understanding legal translation as

cultural transfer both in respect of its theoretical foundations and practical applications In

section 22 we noted that when translating a legal text for the purpose of producing another

authentic version of the same text the legal translator is bound to foreignize the language of

the latter version to a certain extent in order to establish semantic equivalence between the

two versions Translation of the common law into Chinese thus serves as a paradigm of

cultural transfer in legal translation

That being the case our understanding of legal culture must be carefully reconditioned

by its practical reference to the common law and account for the evidence of its transference

in the legal text itself As analyzed in section 31 the very notion of legal culture has been

understood in previous studies either as peoplersquos conceptions of law or the combination of

peoplersquos conceptions and practices of law However it is not possible for the legal translator

to deal with legal culture in the sense of the practices and behaviors by legal professionals as

the final encounter of the legal translator is the legal text which embodies peoples conception

of law The aspect of legal culture which informs and underpins legal translation is the

conceptual thinking shared by legal professionals We argued in section 33 that the common

law is a deep-rooted historically molded conceptual thinking shared by legal professionals

Its legal culture is mainly reflected in two aspects legal concepts and legal principles We

also investigated in section 34 the legal culture of traditional and modern Chinese law

showing that borrowing from other legal systems and transfer of foreign laws into China has

shaped the modern Chinese law

In our analysis in section 41 of the transfer of legal culture we classified legal

transplant into two kinds legal imposition at the socio-political level and legal translation at

the socio-linguistic level On the one hand a fairly wholesale transplantation of legal system


is possible for socio-political reasons even without any translation of the imported law into

the indigenous language On the other hand it is often through legal translation that foreign

laws are introduced to the indigenous people at the socio-linguistic level Compared with

legal imposition legal translation is a more fruitful way of legal transplant and cultural

transfer as is evident from Chinarsquos long history of legal translation It has also been shown in

our analysis of the memorials prepared by legal translators that the successful transfer of a

legal culture always requires the adjustments of the translating language by means of

metalinguistic devices

As this study is both a theoretical inquiry and a case study chapter 5 examined the

specific features of the common law language in which the legal concepts and legal principles

are embodied We argued that differences between the Chinese language and common law

English should not be emphasized at the expense of the translatability of the common law

legislation into Chinese Legislative translation is no doubt a limiting case of translation For

it is mandated by law that its different language texts must convey the same legal meaning so

as to regulate the same social behaviour among the people it governs If this condition cannot

be satisfied if it can be shown that equivalence in meaning is in principle unattainable then

not only will legislative translation become a futile endeavour but the foundation of all

multilingual legal systems will also collapse

To show how semantic equivalence is possible in legislative translation we proposed in

section 61 a theoretical framework for effecting cultural transfer at two different levels One

is linguistic transfer ie transfer at the linguistic level which involves the adjustments of the

Chinese language and the other is conceptual transfer at the metalinguistic level We then

carried out a detailed analysis of selected translations The focus is placed on the analysis of

the translation of common law terminology We made clear in section 62 how the two levels


of transfer take place Not only should the legal translator produce the Chinese equivalents on

the linguistic level by adjusting the Chinese language but with the use of metalanguage

heshe transfers the cultural concepts into Chinese and establishes the semantic reference

system for common law Chinese ie a special domain of the Chinese language developed

for incorporating the common law

Basing our views on the works of legal and translation scholars in Hong Kong we have

shown in this study that equivalence in meaning indeed does not exist between languages as

they stand This has led many to dismiss the whole notion as illusory However equivalence

in meaning is by nature not a descriptive term Rather it is a stipulative term That is to say

two terms are equivalent in meaning if and only if they are stipulated to be so Equivalence in

meaning is established by the metalinguistic device of definition It is created not found In

the case of legislative translation this metalinguistic device operates on the legislative level

ie as part of the legislative process In other words in legislative translation equivalence in

meaning between the different language texts of the law is established by legislation not

through translation on the object-language level

Translation is of course not merely a matter of language Many things are involved in

the process Nevertheless however complicated the process is translation is invariably a

process beginning with a text and ending with another textmdashit is always from language to

language always a cross-linguistic event Whether we call this transcoding or recoding

translation remains essentially an operation with words Even when one follows cultural

theorists such as Vermeer and Snell-Hornby and re-labels translation a cross-cultural event

what we see in the end-product ie the target text remains a matter of words The

dichotomy between translation as transcoding and translation as cultural transfer is as has


been shown in this study totally misguided There can be no cultural transfer without

transcoding as culture is for the most part embodied in language

As with translating Buddhist scriptures into Chinese translating the common law into

Chinese is a paradigm case of cultural transfer But again legal culture is illusory unless and

until it is embodied in language We have shown that the culture of the common law covers

the whole conceptual framework and socio-cultural background whereby the various

components of the common law are understood Part of that culture manifests itself in the

mere form of words and has to be preserved by following the same form of words in the

translation In such cases translating words is at the same time translating culture The

dichotomy between word and sense on the one hand and between word and culture simply

breaks down here But a large part of the culture of the common law can only be found

beyond the words of the law That part like equivalence in meaning cannot be handled by

translation on the same object-language level It must be handled either at the metalinguistic

level or in a separate object-level translation Once we have a clear view of how language

works and how it can be used to do what we want it to do many of the problems in

translation studies can be clarified and resolved

If this study can help clarify some of the fundamental problems concerning the notion of

translation as cultural transfer it will have achieved its intended skopos

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Wacks R (1989) (Ed) The future of the law in Hong Kong Hong Kong Oxford

University Press

Watson A (1974) Legal transplants An approach to comparative law Edinburgh

Scottish Academic Press Ltd

207

Watson A (1991) Legal culture v Legal tradition American Journal of

Comparative Law 39

Watson A (2001a) Legal transplants and European private law Electronic Journal

of Comparative Law (December 2000) Vol 44 Website

httpwwwejclorgejcl4444-2html

Watson A (2001b) The evolution of western private law Baltimore The Johns

Hopkins University Press

Watson B (1998 April) Have our English language documents passed their

lsquouse-byrsquo date Hong Kong Lawyer 1998 23

Wesley-smith P (1993) The common law of England in the Special Administrative

Region In R Wack (Ed) Hong Kong China and 1997 essays in legal theory

(pp5-40) Hong Kong Hong Kong University Press

Wesley-smith P (1994) The sources of Hong Kong law Hong Kong Hong Kong

University Press

White JB (1990) Justice as translationmdashAn essay in cultural and legal criticism

The University of Chicago Press

Willliam R (1961) Culture and society 1780-1950 Harmondsworth Penguin

Wilss W (1982) The science of translation problems and methods Tubingen

Gunter Narr Verlag

Wong K C (1998) The Behavior of Qing Dynasty Speech Crime Law in China A

Cross-Cultural Application of Blackrsquos Theory of Law A Bell and Howell

Information Company Ann Arbor MI

Wong H M (1999 November) The myth of legal bilingualism in Hong Kong Hong

Kong Lawyer 31-32

208

Chinese Works

蔡奇林 (2002) lt六群比丘」與「六眾苾芻」－兼談佛典仿譯及其對漢語的影

響gt 「漢文佛典語言學國際學術研討會」論文佛學研究中心學報 2004

年第 9 期台北市台灣大學文學院佛學研究中心

httpccbsntuedutwFULLTEXTcfb_cbsj-2htm

何勤華等編著 (1994) 中西法律文化通論復旦大學出版社

江必新 (2003) 中國法文化的淵源與流變北京市法律出版社

金聖華冼景炬 (2004) 香港法律中譯的幾個問題翻譯學報 2004 年第九期

香港香港中文大學翻譯系

梁治平主編 (1994) 法律的文化解釋生活`讀書`新知三聯書店

劉作翔 (1999) 法律文化理論北京商務印書館

沈達明編著 (1993) 英美合同法引論北京對外貿易教育出版社

楊楨 (1997) 英美契約法論北京北京大學出版社

周長齡 (1997) 法律的起源北京中國人民公安大學出版社

張德美 (2003) 晚清法律移植研究北京清華大學出版社

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趙秉志主編 (1996) 香港刑法北京北京大學出版社

張中秋 (2003) 比較視野中的法律文化北京市法律出版社

CITY UNIVERSITY OF HONG KONG 香港城市大學

Cultural Transfer in Legal Translation A Case Study of the Translation of the

Common Law into Chinese in Hong Kong


Submitted to Department of Chinese Translation and Linguistics

中文翻譯及語言學系 in Partial Fulfillment of the Requirements

for the Degree of Doctor of Philosophy 哲學博士學位

by

Wang Ling 王淩

April 2008 二零零八年四月

ii




Abstract



















iii

























iv

Acknowledgments







gratitude














v




joys of my study





piece of work

vi

TABLE OF CONTENTS

Title Page i

Abstract ii

Acknowledgments iv

PART I




Translation 1










vii















411 Introduction 89





viii

PART II















Bibliography 194

Chapter 1

Introduction


Translation




















INTRODUCTION 2

























INTRODUCTION 3






















win out (p 9)

INTRODUCTION 4






















They remarked

INTRODUCTION 5






(p 47)2






















INTRODUCTION 6

























INTRODUCTION 7


remarked






















INTRODUCTION 8
























INTRODUCTION 9


























INTRODUCTION 10


























INTRODUCTION 11
























INTRODUCTION 12























INTRODUCTION 13








Kong






Chapter 2





















15
























16







of target receivers














equivalence (p 21)


17










mathematics

















18























footnote 5 above)


19














1b My son is six






sentence pair

2a 地上有黃金



20






















into is 19 etc (1965 p 30)


21




following remark




















22
























23



hellip























24


















as follows




25

























26



















transferred]






27


























28























29



























30










(1988 pp 1-2)














31







clear











school





32
























33











of words






(p 2)






34








atmosphere




University


Vortivkirche


hellip hellip










35























36


























37




























38







form alone










naturalized









39



















section








40













law









41



















hellip





42












same as before16
















43















converge








44

























45


























46














substantive








697


47


























48


























49

















aspect(s)











96-99)


50


achieve such a goal























51

























52



























perceived


53








observable objects
















54


























55


level









56)















56


















Chapter 3



311 Law and Culture









law


































and habits (p 83)



society
























of crystallization



























(1987 p 323)


187-205)











practices of law32















































39)















































(p 195)33


















































































































diagram



Legal culture

embedded in

source text

Transference of

the legal culture


Which

sense of legal

culture could

find

representation

in the source

legal text

-Legal ideology


and legal theory


beliefs


thinking

Variations of

the concept of

legal culture

in literature

Which

sense of legal

culture could

find

representation

in the target

legal text

ST

(Source

Text)

TT

(Target

Text)

Language of

the source

legal text

Language of

the equivalent

legal Text






















form
























way (pp 289-90)

















law into Chinese













single jurisdiction






















subject area








negligence






Sect 21)



















































































that





Chinese law









































4)





















































(pp16-17)







Confucianism












































Chinese law (p 4)































































Chen remarks





























law into Chinese





Chapter 4



411 Introduction

































criticism remarking





















































































































































religious context















(1998 p 603)














played












Chinese Law








(1903) (Svarverud 1998)

























































PRC (1998 p162)



































laws



1976 Glendon 1985 Varga 1992) (p474)


































(1950) also noted













remarked

















70-71)





















Chapter 5
















follows




























































view








Sin (1993) argued









































































sections



























































features
















equivalents









LanguageLanguage

Areaof Shared

Concept

Source Target












structure (p 14)










referential system






































































公眾場所)




剩餘權益)



次要條件)


































documentsrdquo80







linguists



































19)















































































































verbs (pp 20-21)

































































order


ldquowhenrdquo















































































culture (p 98)



































(2004)89































































Maley explained






































































elements (p 15)

































































Chapter 6












her work













1948 Jan pp 78-9)






the following case































Ordinance 1988








Version 1




Version 2













of the source text




















































































































平的款額





















offender must pay










worldrsquo



















ST is the

representa-

tion of SC

SC is

embedded

in ST

Text of the English

common law


law)

Linguistic

transcoding

Text of the English

common law in


and case law)

The missing link

between the

Chinese translation

and the culture of

the common law





















Culture of the

common law legal

concepts and legal


Culture of the

common law legal

concepts and legal

principles

Transference of

the legal culture









































convincing argument











text (p 138)





















































possible

















translations











































ancient China





adopts the SL term
































examples

Example 1 Chattels































possession



















































































































Proposal


























Example 2 Attempt
























zui (企圖罪)



















































access










the following

Example 1 Discharge







Hong Kong case laws












Example 2 Malice










Example 3 Remainder










































Example 3 Warranty




















































































An extract reads




















Law Principles
































































QBD 359)





















Chinese




or excuse118









complained of







false119



是假的













條)





























































Chapter 7

Concluding Remarks





translation theory













































































































Bibliography

English Works


Jerome Publishing


University Press


Law Review 46 1117-1136





Routledge



55-78







McGraw-Hill


195



Birmingham


6 1 1-10





Publishing Company







1 (Winter) pp 1-41








196







Publishers






Lectura




Wheatsheaf









197


445-564



505-509


University Press




Co Ltd
















198


amp Maxwell


















Education







199















Academic Press






Journal 27 187-205


University

200



Wydawnictwo Edytor






















York Academic Press

201








Press




Company



Language Teaching






Munchen


Leiden E J Brill



202





Academic Press













Collier


University Press







203




Manchester St J







Publishing Company











St Jerome Pub




Press

204




and Law 509-515














Benjamins







205



Bahri Publications




Press


Publishers




Boston Brill


University of Aston







Benjamins Pub




206










No 5 305-311


Westview Press



Routledge London


London







University Press



207


Comparative Law 39












University Press





Gunter Narr Verlag





Kong Lawyer 31-32

208

Chinese Works


















ii




Abstract



















iii

























iv

Acknowledgments







gratitude














v




joys of my study





piece of work

vi

TABLE OF CONTENTS

Title Page i

Abstract ii

Acknowledgments iv

PART I




Translation 1










vii















411 Introduction 89





viii

PART II















Bibliography 194

Chapter 1

Introduction


Translation




















INTRODUCTION 2

























INTRODUCTION 3






















win out (p 9)

INTRODUCTION 4






















They remarked

INTRODUCTION 5






(p 47)2






















INTRODUCTION 6

























INTRODUCTION 7


remarked






















INTRODUCTION 8
























INTRODUCTION 9


























INTRODUCTION 10


























INTRODUCTION 11
























INTRODUCTION 12























INTRODUCTION 13








Kong






Chapter 2





















15
























16







of target receivers














equivalence (p 21)


17










mathematics

















18























footnote 5 above)


19














1b My son is six






sentence pair

2a 地上有黃金



20






















into is 19 etc (1965 p 30)


21




following remark




















22
























23



hellip























24


















as follows




25

























26



















transferred]






27


























28























29



























30










(1988 pp 1-2)














31







clear











school





32
























33











of words






(p 2)






34








atmosphere




University


Vortivkirche


hellip hellip










35























36


























37




























38







form alone










naturalized









39



















section








40













law









41



















hellip





42












same as before16
















43















converge








44

























45


























46














substantive








697


47


























48


























49

















aspect(s)











96-99)


50


achieve such a goal























51

























52



























perceived


53








observable objects
















54


























55


level









56)















56


















Chapter 3



311 Law and Culture









law


































and habits (p 83)



society
























of crystallization



























(1987 p 323)


187-205)











practices of law32















































39)















































(p 195)33


















































































































diagram



Legal culture

embedded in

source text

Transference of

the legal culture


Which

sense of legal

culture could

find

representation

in the source

legal text

-Legal ideology


and legal theory


beliefs


thinking

Variations of

the concept of

legal culture

in literature

Which

sense of legal

culture could

find

representation

in the target

legal text

ST

(Source

Text)

TT

(Target

Text)

Language of

the source

legal text

Language of

the equivalent

legal Text






















form
























way (pp 289-90)

















law into Chinese













single jurisdiction






















subject area








negligence






Sect 21)



















































































that





Chinese law









































4)





















































(pp16-17)







Confucianism












































Chinese law (p 4)































































Chen remarks





























law into Chinese





Chapter 4



411 Introduction

































criticism remarking





















































































































































religious context















(1998 p 603)














played












Chinese Law








(1903) (Svarverud 1998)

























































PRC (1998 p162)



































laws



1976 Glendon 1985 Varga 1992) (p474)


































(1950) also noted













remarked

















70-71)





















Chapter 5
















follows




























































view








Sin (1993) argued









































































sections



























































features
















equivalents









LanguageLanguage

Areaof Shared

Concept

Source Target












structure (p 14)










referential system






































































公眾場所)




剩餘權益)



次要條件)


































documentsrdquo80







linguists



































19)















































































































verbs (pp 20-21)

































































order


ldquowhenrdquo















































































culture (p 98)



































(2004)89































































Maley explained






































































elements (p 15)

































































Chapter 6












her work













1948 Jan pp 78-9)






the following case































Ordinance 1988








Version 1




Version 2













of the source text




















































































































平的款額





















offender must pay










worldrsquo



















ST is the

representa-

tion of SC

SC is

embedded

in ST

Text of the English

common law


law)

Linguistic

transcoding

Text of the English

common law in


and case law)

The missing link

between the

Chinese translation

and the culture of

the common law





















Culture of the

common law legal

concepts and legal


Culture of the

common law legal

concepts and legal

principles

Transference of

the legal culture









































convincing argument











text (p 138)





















































possible

















translations











































ancient China





adopts the SL term
































examples

Example 1 Chattels































possession



















































































































Proposal


























Example 2 Attempt
























zui (企圖罪)



















































access










the following

Example 1 Discharge







Hong Kong case laws












Example 2 Malice










Example 3 Remainder










































Example 3 Warranty




















































































An extract reads




















Law Principles
































































QBD 359)





















Chinese




or excuse118









complained of







false119



是假的













條)





























































Chapter 7

Concluding Remarks





translation theory













































































































Bibliography

English Works


Jerome Publishing


University Press


Law Review 46 1117-1136





Routledge



55-78







McGraw-Hill


195



Birmingham


6 1 1-10





Publishing Company







1 (Winter) pp 1-41








196







Publishers






Lectura




Wheatsheaf









197


445-564



505-509


University Press




Co Ltd
















198


amp Maxwell


















Education







199















Academic Press






Journal 27 187-205


University

200



Wydawnictwo Edytor






















York Academic Press

201








Press




Company



Language Teaching






Munchen


Leiden E J Brill



202





Academic Press













Collier


University Press







203




Manchester St J







Publishing Company











St Jerome Pub




Press

204




and Law 509-515














Benjamins







205



Bahri Publications




Press


Publishers




Boston Brill


University of Aston







Benjamins Pub




206










No 5 305-311


Westview Press



Routledge London


London







University Press



207


Comparative Law 39












University Press





Gunter Narr Verlag





Kong Lawyer 31-32

208

Chinese Works


















iii

























iv

Acknowledgments







gratitude














v




joys of my study





piece of work

vi

TABLE OF CONTENTS

Title Page i

Abstract ii

Acknowledgments iv

PART I




Translation 1










vii















411 Introduction 89





viii

PART II















Bibliography 194

Chapter 1

Introduction


Translation




















INTRODUCTION 2

























INTRODUCTION 3






















win out (p 9)

INTRODUCTION 4






















They remarked

INTRODUCTION 5






(p 47)2






















INTRODUCTION 6

























INTRODUCTION 7


remarked






















INTRODUCTION 8
























INTRODUCTION 9


























INTRODUCTION 10


























INTRODUCTION 11
























INTRODUCTION 12























INTRODUCTION 13








Kong






Chapter 2





















15
























16







of target receivers














equivalence (p 21)


17










mathematics

















18























footnote 5 above)


19














1b My son is six






sentence pair

2a 地上有黃金



20






















into is 19 etc (1965 p 30)


21




following remark




















22
























23



hellip























24


















as follows




25

























26



















transferred]






27


























28























29



























30










(1988 pp 1-2)














31







clear











school





32
























33











of words






(p 2)






34








atmosphere




University


Vortivkirche


hellip hellip










35























36


























37




























38







form alone










naturalized









39



















section








40













law









41



















hellip





42












same as before16
















43















converge








44

























45


























46














substantive








697


47


























48


























49

















aspect(s)











96-99)


50


achieve such a goal























51

























52



























perceived


53








observable objects
















54


























55


level









56)















56


















Chapter 3



311 Law and Culture









law


































and habits (p 83)



society
























of crystallization



























(1987 p 323)


187-205)











practices of law32















































39)















































(p 195)33


















































































































diagram



Legal culture

embedded in

source text

Transference of

the legal culture


Which

sense of legal

culture could

find

representation

in the source

legal text

-Legal ideology


and legal theory


beliefs


thinking

Variations of

the concept of

legal culture

in literature

Which

sense of legal

culture could

find

representation

in the target

legal text

ST

(Source

Text)

TT

(Target

Text)

Language of

the source

legal text

Language of

the equivalent

legal Text






















form
























way (pp 289-90)

















law into Chinese













single jurisdiction






















subject area








negligence






Sect 21)



















































































that





Chinese law









































4)





















































(pp16-17)







Confucianism












































Chinese law (p 4)































































Chen remarks





























law into Chinese





Chapter 4



411 Introduction

































criticism remarking





















































































































































religious context















(1998 p 603)














played












Chinese Law








(1903) (Svarverud 1998)

























































PRC (1998 p162)



































laws



1976 Glendon 1985 Varga 1992) (p474)


































(1950) also noted













remarked

















70-71)





















Chapter 5
















follows




























































view








Sin (1993) argued









































































sections



























































features
















equivalents









LanguageLanguage

Areaof Shared

Concept

Source Target












structure (p 14)










referential system






































































公眾場所)




剩餘權益)



次要條件)


































documentsrdquo80







linguists



































19)















































































































verbs (pp 20-21)

































































order


ldquowhenrdquo















































































culture (p 98)



































(2004)89































































Maley explained






































































elements (p 15)

































































Chapter 6












her work













1948 Jan pp 78-9)






the following case































Ordinance 1988








Version 1




Version 2













of the source text




















































































































平的款額





















offender must pay










worldrsquo



















ST is the

representa-

tion of SC

SC is

embedded

in ST

Text of the English

common law


law)

Linguistic

transcoding

Text of the English

common law in


and case law)

The missing link

between the

Chinese translation

and the culture of

the common law





















Culture of the

common law legal

concepts and legal


Culture of the

common law legal

concepts and legal

principles

Transference of

the legal culture









































convincing argument











text (p 138)





















































possible

















translations











































ancient China





adopts the SL term
































examples

Example 1 Chattels































possession



















































































































Proposal


























Example 2 Attempt
























zui (企圖罪)



















































access










the following

Example 1 Discharge







Hong Kong case laws












Example 2 Malice










Example 3 Remainder










































Example 3 Warranty




















































































An extract reads




















Law Principles
































































QBD 359)





















Chinese




or excuse118









complained of







false119



是假的













條)





























































Chapter 7

Concluding Remarks





translation theory













































































































Bibliography

English Works


Jerome Publishing


University Press


Law Review 46 1117-1136





Routledge



55-78







McGraw-Hill


195



Birmingham


6 1 1-10





Publishing Company







1 (Winter) pp 1-41








196







Publishers






Lectura




Wheatsheaf









197


445-564



505-509


University Press




Co Ltd
















198


amp Maxwell


















Education







199















Academic Press






Journal 27 187-205


University

200



Wydawnictwo Edytor






















York Academic Press

201








Press




Company



Language Teaching






Munchen


Leiden E J Brill



202





Academic Press













Collier


University Press







203




Manchester St J







Publishing Company











St Jerome Pub




Press

204




and Law 509-515














Benjamins







205



Bahri Publications




Press


Publishers




Boston Brill


University of Aston







Benjamins Pub




206










No 5 305-311


Westview Press



Routledge London


London







University Press



207


Comparative Law 39












University Press





Gunter Narr Verlag





Kong Lawyer 31-32

208

Chinese Works


















iv

Acknowledgments







gratitude














v




joys of my study





piece of work

vi

TABLE OF CONTENTS

Title Page i

Abstract ii

Acknowledgments iv

PART I




Translation 1










vii















411 Introduction 89





viii

PART II















Bibliography 194

Chapter 1

Introduction


Translation




















INTRODUCTION 2

























INTRODUCTION 3






















win out (p 9)

INTRODUCTION 4






















They remarked

INTRODUCTION 5






(p 47)2






















INTRODUCTION 6

























INTRODUCTION 7


remarked






















INTRODUCTION 8
























INTRODUCTION 9


























INTRODUCTION 10


























INTRODUCTION 11
























INTRODUCTION 12























INTRODUCTION 13








Kong






Chapter 2





















15
























16







of target receivers














equivalence (p 21)


17










mathematics

















18























footnote 5 above)


19














1b My son is six






sentence pair

2a 地上有黃金



20






















into is 19 etc (1965 p 30)


21




following remark




















22
























23



hellip























24


















as follows




25

























26



















transferred]






27


























28























29



























30










(1988 pp 1-2)














31







clear











school





32
























33











of words






(p 2)






34








atmosphere




University


Vortivkirche


hellip hellip










35























36


























37




























38







form alone










naturalized









39



















section








40













law









41



















hellip





42












same as before16
















43















converge








44

























45


























46














substantive








697


47


























48


























49

















aspect(s)











96-99)


50


achieve such a goal























51

























52



























perceived


53








observable objects
















54


























55


level









56)















56


















Chapter 3



311 Law and Culture









law


































and habits (p 83)



society
























of crystallization



























(1987 p 323)


187-205)











practices of law32















































39)















































(p 195)33


















































































































diagram



Legal culture

embedded in

source text

Transference of

the legal culture


Which

sense of legal

culture could

find

representation

in the source

legal text

-Legal ideology


and legal theory


beliefs


thinking

Variations of

the concept of

legal culture

in literature

Which

sense of legal

culture could

find

representation

in the target

legal text

ST

(Source

Text)

TT

(Target

Text)

Language of

the source

legal text

Language of

the equivalent

legal Text






















form
























way (pp 289-90)

















law into Chinese













single jurisdiction






















subject area








negligence






Sect 21)



















































































that





Chinese law









































4)





















































(pp16-17)







Confucianism












































Chinese law (p 4)































































Chen remarks





























law into Chinese





Chapter 4



411 Introduction

































criticism remarking





















































































































































religious context















(1998 p 603)














played












Chinese Law








(1903) (Svarverud 1998)

























































PRC (1998 p162)



































laws



1976 Glendon 1985 Varga 1992) (p474)


































(1950) also noted













remarked

















70-71)





















Chapter 5
















follows




























































view








Sin (1993) argued









































































sections



























































features
















equivalents









LanguageLanguage

Areaof Shared

Concept

Source Target












structure (p 14)










referential system






































































公眾場所)




剩餘權益)



次要條件)


































documentsrdquo80







linguists



































19)















































































































verbs (pp 20-21)

































































order


ldquowhenrdquo















































































culture (p 98)



































(2004)89































































Maley explained






































































elements (p 15)

































































Chapter 6












her work













1948 Jan pp 78-9)






the following case































Ordinance 1988








Version 1




Version 2













of the source text




















































































































平的款額





















offender must pay










worldrsquo



















ST is the

representa-

tion of SC

SC is

embedded

in ST

Text of the English

common law


law)

Linguistic

transcoding

Text of the English

common law in


and case law)

The missing link

between the

Chinese translation

and the culture of

the common law





















Culture of the

common law legal

concepts and legal


Culture of the

common law legal

concepts and legal

principles

Transference of

the legal culture









































convincing argument











text (p 138)





















































possible

















translations











































ancient China





adopts the SL term
































examples

Example 1 Chattels































possession



















































































































Proposal


























Example 2 Attempt
























zui (企圖罪)



















































access










the following

Example 1 Discharge







Hong Kong case laws












Example 2 Malice










Example 3 Remainder










































Example 3 Warranty




















































































An extract reads




















Law Principles
































































QBD 359)





















Chinese




or excuse118









complained of







false119



是假的













條)





























































Chapter 7

Concluding Remarks





translation theory













































































































Bibliography

English Works


Jerome Publishing


University Press


Law Review 46 1117-1136





Routledge



55-78







McGraw-Hill


195



Birmingham


6 1 1-10





Publishing Company







1 (Winter) pp 1-41








196







Publishers






Lectura




Wheatsheaf









197


445-564



505-509


University Press




Co Ltd
















198


amp Maxwell


















Education







199















Academic Press






Journal 27 187-205


University

200



Wydawnictwo Edytor






















York Academic Press

201








Press




Company



Language Teaching






Munchen


Leiden E J Brill



202





Academic Press













Collier


University Press







203




Manchester St J







Publishing Company











St Jerome Pub




Press

204




and Law 509-515














Benjamins







205



Bahri Publications




Press


Publishers




Boston Brill


University of Aston







Benjamins Pub




206










No 5 305-311


Westview Press



Routledge London


London







University Press



207


Comparative Law 39












University Press





Gunter Narr Verlag





Kong Lawyer 31-32

208

Chinese Works


















Documents

Cultural Transfer in Legal Translation: A Case Study of