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Chapter 1: Introduction
1.1. Aims of the study
Whenever a person thinks of law, (s)he will associate it with complication and a sense of
hesitation. In my opinion, they are quite reasonable to have such stereotypes.
The first reason is the language of law, as Tiersma (2000) said, is a “separate language” that
differs dramatically from everyday speech. He also added that legal language is decidedly
peculiar and hard to understand, especially for the perspective of the lay public. The oddity of
the language is due to many Anglo-Saxon, Latin and Norman French relics. Beside archaic
vocabulary, legal language is also famous for its lengthy and complex sentences. Tiersma
(2000) explained that the lengthy sentences are used because they can place all information on
a particular subject into a self-contained unit, so the ambiguity will be reduced.
The language of law has many other features, which made it becomes a kind of variety. The
followings parts will clarify this kind of variety.
The second reason lies in the fact that legal systems in different countries operate not the same
way. The two most common kinds of law are common and civil law. According to Wikipedia,
the free encyclopedia, common law is often referred to as "judge-made-law". It requires
judges to use their discretion in making judgments. It is used when no appropriate statute law
exists. A judges' decision may set a precedent, which must then be followed by all lower
courts when the facts of the case are similar (Retrieved from
http://en.wikipedia.org/wiki/Lawyer). Civil law has its roots in Roman law, Canon law and the
Enlightenment. The legal systems in many civil law countries are based around one or several
codes of law, which set out the main principles that guide the law. The main difference that is
usually drawn between the two systems is that common law draws abstract rules from specific
cases, whereas civil law starts out with abstract rules, which judges must then apply to the
various cases before them.
The difference in legal systems is also the main obstacle for foreigner to understand the legal
language of the other countries.
The study aims at contrasting systems of professional words denoting titles in legal systems of
Vietnam and of other countries, mainly the United States. From the contrast, the sameness and
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differences will be concluded, so I hope it will help Vietnamese learners in general and law
students in particular to have proper understanding and use of legal titles.
1.2. Methodology
In order to contrast legal titles in American legal system with those in Vietnamese legal
system, I will adopt contrastive method suggested by James C. (1980). The contrastive method
requires two steps:
- Step one: In this step, a full description of legal titles in American and Vietnamese
legal system will be made.
- Step two: After the descriptive process is the comparison stage. At this stage,
similarities and differences are inferred.
Beside contrastive method, qualitative method is used. Data from many sources related to the
topic are collected to serve for description and comparison stages.
1.3. Scope of the study
Since there are many titles in legal system, the study will choose to compare professional titles
in judicial branch and only some prominent titles are selected. It should be noted that the legal
system of the United States of America is chosen to compare with those of Vietnamese.
The main reason explained for the differences of the two legal systems is the legal culture of
the two countries and the study only deals with linguistic aspect.
1.4. Significance of the study
The study will be of great help for foreign language learners as well as for law students. It will
help them to have proper understanding of legal titles as they can use a checklist of legal titles
as a reference source.
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Chapter 2: Theoretical background
2.1. General description of legal language
Language, as Yon Maley (1994) said in his article “The language of law”, is the medium,
process and product in the various arenas of the law. Although the law system of Vietnam and
the United States of America is not the same, the legal languages of both systems, share some
characteristics as follows:
Legal language is often full of antiquated, archaic or unnecessary words. It is also famous for
its definiteness, preciseness and technical words. Legal language tends to spell things out
without painstaking attention to minute detail. In everyday language, in order to reach our
communicative purposes, we ordinarily try to leave the obvious unsaid, we take it for granted
that people know what we are thinking and understand what we mean. In a legal discourse,
nothing can be taken for granted, individual significant details must be stated explicitly.
Besides, the complexity of certain legal concepts demands a corresponding complexity in
sentence structure. In the legal language, the structure of a sentence can by surprisingly
complicated. Hardly can we find a simple sentence. In stead, we often find sentences with
qualifying phrases and dependent clauses.
In the next parts, we will examine in more detail the features of legal English and Vietnamese.
2.1.1. Characteristics of English legal language
When discussing language of law, Tiersma (2000) held the view that legal language is strange
and often hard to understand, especially from the perspective of the lay public. He even
classified legal language as a separate language. Lawyers, as he said, often use long, complex
and redundant sentences, conjoined phrases, impersonal instruction and arcane words or
phrases. The reason for the use of lengthy and complex sentences is explained as due to the
desire to place all information on a particular topic into one self-contained unit. Tiersma
(2000) said this tendency presumably reduces the ambiguity that might result if conditions on
a rule or provision are placed in separate sentences.
Tiersma (2000) also added that the language of law can sometimes be informal and versatile.
In discussing the language of law, Bhatia K. (1993) indicated that legal language encompasses
several usefully distinguishable genres depending on communicative purposes, the settings, or
contexts in which they are used to classify, the communicative events or activities they are
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associated with, the social or professional relationship between the participants bring to the
situation in which that particular event is embedded and a number of other factors. The result
is that the author classified the language of law into many subtypes, such as textbooks,
journals, cases, judgements, contracts, agreements, insurances, jury instructions.
When González (1999) wrote about ways of gripping legal language, he also gave out some
features of the language that cause problems for learners , i.e. grammatical and syntactical
difficulties, terminological and phraseological conventions of the field, the differences that
hold between the legal systems, for instance, in the case of the English-Spanish language pair.
Furthermore, students of legal English are exposed to certain technical concepts that they
might not yet have come across in their Law course.
From discourse analysis perspective, legal text is considered from different levels. Llopis
María Ángeles Orts (1999) divided legal text into two main different levels: Intra-discourse
level and Inter-discourse level.
The intra-discourse level of analysis includes the textual level and the discourse level. At
textual level, as far as lexical terms are concerned, “the text under analysis shows the
appearance of typical features, namely technical terms or terms of art, i.e., words specific to
the genre” ( Llopis (1999)),
With regard to syntactic features, the author stated that legal text often includes the use of
nominalization, passives, conditionals, use of unique determiners, parallel structures, as well
as a high frequency of prepositional phrases in unusual position.
The discourse level “includes the strategies to achieve cohesion and coherence in the text”
(Llopis (1999)).Coherence is achieved in “the conceptual and formal obscurity, aimed at
being understandable to the legal specialist , to offer clarifications about various aspects of the
policy and make it unambiguous –confusing and hermetic though it may seem to the layman”
(Llopis (1999)).
From the inter-discourse level of analysis, the author noted that most legislation has to be
understood against a background of related law, mostly common law.
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Concluding remarks: The language of law is a kind of register, and legal English is a mixture
of many difference antique languages of the Celt, Anglo-Saxon, Dane, French and Latin. As a
special kind of register, it requires separate systems of vocabulary, structure and terminology
which cause considerable challenges for non-professional people.
2.1.2. Characteristics of Vietnamese legal language
Beside common features of legal language, Vietnamese laws have its own characteristics. The
language of law is considered to be the most typical example of scientific style, which is
characterized by precision and objectiveness. However, in order to reach the preciseness,
sometimes the documents are considered to be too complicated and hard for reader to
interpret.
Since Vietnamese itself is not clear in terms of time and tense, some legal documents in some
cases do not indicate time and tense precisely, which causes considerable problems when the
law is applied.
According to Anh Luu (2006), despite significant improvements, Vietnamese legislation work
is still weak resulting in the legal system being inadequate and unstable. Besides, the laws in
Vietnam are still inconsistent, so sometimes law terms in different document are not
consistent. That is the reason why it is required that law terms should be precise and popular.
(From “Mt s vn v k thut son tho vn bn qppl”)
There is a tendency that Vietnamese legal language uses short sentences with a logical
sequence.
For example, the term below is a lengthy sentence and difficult to understand. There are many
repetitions which can be eliminated. Such phrases as “kinh doanh, hàng hoá, dch v” are
repeated many times, and the term can be shortened. The example below is extracted form
website http://my.opera.com/mauvanban/blog/index.dml/:
The long form:
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" i vi hàng hoá, dch v kinh doanh có iu kin, các t chc hoc cá nhân không
c phép kinh doanh mà kinh doanh, hoc c phép kinh doanh mà trong quá trình kinh
doanh không thng xuyên m bo các iu kin qui nh cho loi hàng hoá, dch v ó, u
coi là hành vi kinh doanh trái phép, tu theo mc vi phm s b x lý hành chính hoc b
truy cu trách nhim hình s theo qui nh ca pháp lut hin hành " (Article 15 Decision 36-
CP5 January 1995 of the Government) .
And the reduced form:
" Vic kinh doanh nhng hàng hoá, dch v có iu kin khi không c phép hoc
không m bo các yêu cu qui nh i vi hàng hoá dch v ó u b coi là hành vi kinh
doanh trái phép và có th b x lý hành chính hoc truy cu trách nhim hình s tu theo mc
vi phm ".
From 90 words, the term has been reduced to 60 words but the content is unchanged.
Vietnamese legal language is often seen as colloquial language, as a result, some documents
are redundant. The main reason for the redundancy is that compilers’ negligence and they use
many synonyms of terms.
For example:
" Hp ng kinh t là s tho thun bng vn bn, tài liu giao dch gia các bên ký kt v
vic thc hin công vic sn xut, trao i hàng hoá, dch v, nghiên cu, ng dng tin b
khoa h c k! thut vàcác tho thun khác nhm mc ích kinh doanh vi s quy nh rõ ràng
quyn và ngh"a v ca m#i bên xây dng và thc hin k hoch ca mình ".
(Article 1 Law on Economic Contract).
If the repetition of terms that have the same meaning is avoided, the article will be shortened,
thus, it will make the regulation more precise and easy to understand. In the example, the two
terms “vn bn” and “tài liu” have the same meaning.
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Concluding remarks: There are a lot of problems with Vietnamese legal language. The
reason may be due to the fact that our legal system is still new compared with hundreds of
years of countries like England and the United States. Our legal language will need more time
to evolve.
2.2. Overview of Vietnamese and American legal system
2.2.1. An overview of Vietnamese legal system
According to Vietnam Union of Science and Technology Associations’ website
(http://www.vusta.vn/English/law.asp), from early history, Vietnamese feudal administrations
were quite aware that in order to reign and administer the country they ought to set out their
law. The Lý, Trn and Lê dynasties followed that way, however, only until the Anterior Le
and then the Nguyn, was ruling by written law attached so much attention to. So far, the
Hng c Code (15th century) has been regarded a great and advanced code of the
Vietnamese feudal dynasties.
Compared to that of Europe and America, the building up of the law and governing over the
country by the law in Vit Nam were many centuries behind theirs; only when a new State -
the Democratic Republic of Vit Nam - came into existence, was building the new law
considered an important task of the State.
According to an article introducing legal system in Vietnam on website
http://www.thna.com/legalsys.htm of Tran. H. N. & Associates, legal system in Vietnam is
based on communist legal theory and French civil law, with major modifications and additions
from Marxist-Leninist ideology.
There are many similarities to the laws of former socialist countries, especially the former
Soviet Union. Still, some French influence also remains due to a long colonial period from the
19
th
into the mid 20
th
century.
From the end of the 80
ies
the Vietnamese legal system has undergone important changes
following the country's economic reform. Within only a few years, the National Assembly
enacted several laws and codes replacing decrees being the only legal basis for a long period.
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One important purport of the legislation in Vietnam is to cope with international standards in
order to promote international transactions from and into Vietnam.
However, Vietnamese law has not covered all fields of life or sometimes there is overlap
between the regulations of the laws. That is the reason why Vietnamese government is trying
hard to perfect Vietnamese legal system.
2.2.2. An overview of American legal system
According to Wikipedia - the online dictionary, the law of the United States was originally
largely derived from the common law of the system of English law, which was in force at the
time of the Revolutionary War. However, the supreme law of the land is the United States
Constitution and, under the Constitution's Supremacy Clause, laws enacted by Congress and
treaties to which the U.S. is a part of. These form the basis for federal laws under the federal
constitution in the United States, circumscribing the boundaries of the jurisdiction of federal
law and the laws in the fifty U.S. states and territories.
In the United States, the law is derived from four sources. These four sources are
constitutional law, administrative law, statutes, and the common law (which includes case
law). The most important source of law is the United States Constitution. All other law falls
under, and is subordinate to, that document. No law may contradict the United States
Constitution. For example, if Congress passes a statute that conflicts with the Constitution, the
Supreme Court may find that law unconstitutional.
Notably, a statute does not disappear automatically merely because it has been found
unconstitutional; it must be deleted by a subsequent statute. Many federal and state statutes
have remained on the books for decades after they were ruled to be unconstitutional. However,
under the principle of stare decisis, no sensible lower court will enforce an unconstitutional
statute, and any court that does so will be reversed by the Supreme Court.
Federal law in the United States originates with the Constitution, which gives Congress the
power to enact statutes for certain limited purposes like regulating commerce. Nearly all
statutes have been codified in the United States Code. Many statutes give executive branch
agencies the power to create regulations, which are published in the Federal Register and
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codified into the Code of Federal Regulations. Regulations generally also carry the force of
law under the Chevron doctrine. Many lawsuits turn on the meaning of a federal statute or
regulation, and judicial interpretations of such meaning carry legal force under the principle of
stare decisis.
The fifty American states are separate sovereigns with their own state constitutions and state
governments. They retain plenary power to make laws covering anything not preempted by
the federal Constitution, federal statutes, or international treaties ratified by the federal Senate.
2.3. The structure of Vietnamese and American courts
2.3.1. The structure of Vietnamese courts
According to website http://www.country-data.com/cgi-bin/query/r-14709.html, Vietnamese
court can be seen as the diagram below:
Vietnam's judicial bodies are the Supreme People's Court, the local People's Courts at the
provincial, district, and city levels, the military tribunals, and the People's Organs of Control.
It must be added that there is another name of The People’s Organ’s of Control, i.e. Supreme
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People’s Procuracy of Vietnam. Under special circumstances, such as showcase trials
involving breaches of national security, the National Assembly or the Council of State may set
up special tribunals.
The Supreme People's Court is the highest tribunal and is charged with the supervision of
subordinate courts. As a court of first instance, it tries cases involving high treason or other
crimes of a serious nature; and as the highest court of appeals, it reviews cases originating
with the lower courts. Appeals are infrequent, however, because lower courts tend to act as
final arbiters.
Local people's courts function at each administrative level except at the village level, where
members of the village administrative committees serve in a judicial capacity. Proceedings of
local courts are presided over by “hi thm nhân dân” (people's assessors). The tribunal panels
at the first instance are composed of both judges and people's assessors (usually one judge and
two people's assessors).
The Supreme People's Organs of Control function as watchdogs of the state and work
independently of all other government agencies, although they are nominally responsible to
the National Assembly.
A judging council, made up of a judge and one or more people's assessors (lay judges),
determines guilt or innocence and also passes sentence on the convicted. The relevant people's
council appoints people's jurors, who are required to have high moral standards but need not
have legal training.
2.3.2. The structure of American courts
American courts can be diagrammed as follows, according to website
http://usinfo.state.gov/products/pubs/legalotln/index.htm
[...]... nh t su t hai n m qua i v i v ki n l lùng M và thu hút s chú ý l n c a d lu n: “Ch ti m gi t i Custom Cleaners không vi ph m lu t b o v Ông Roy Pearson, Th m phán Lu t Hành chính th ng i tiêu dùng c a thành ph ô Washington DC g i qu n i Custom Cleaners nh s a Qu n th t l c Vài ngày sau, ch ti m ti m gi t a qu n ra tr , Pearson nói không ph i qu n c a ông và do ki n (…)” In the headline, the term “quan... Venezuela, sát h i phó Ch ng Lý Danilo Anderson Venezuela cho hay m t cu c t n công b ng bom ã sát h i Phó Ch c an ch ng Lý Danilo Anderson 21 Hôm nay, các gi i ch c Venezuela ã nói v i ài Ti ng Nói Hoa K r ng ã xác ch c ch n là xác ng i cháy en tìm th y trong chi c xe chính là xác c a Phó Ch nh c ng Lý Anderson (…).” Concluding remarks: The term “judge” in American legal system is equivalent to “th m... x “th y cãi” Lê B o Qu c Sáng 19/7, TAND t%nh Bình D &ng ã s V n phòng Lu t s Ba a ra xét x s& th$m v án Lê B o Qu c (nguyên lu t ình, Hà N i) ph m các t i: l'a o chi m o t tài s n; l m d ng 23 tín nhi m chi m o t tài s n; tr n kh(i n&i giam gi ; ch c và Lê c Tuân (tài x c a Qu c) v t i “ a h i l ; làm gi tài li u c& quan, t a h i l ” (…)” (From website http://www.vnmedia.vn/newsdetail.asp?CatId=22&NewsId=96688)... Chapter 4: Lawyers, Litigants, and Interest Groups in the Judicial Process, there is one part named Government Attorneys in the Judicial Process, in Vietnamese version, it is translated as Các lu t s c a chính quy n trong th t c t t ng” In my opinion, “attorney” in this case is not one hundred percent means “lu t s ” in Vietnamese As we have known in the previous part, the term “attorney” is particularly... Thus, in this case, I think “attorney” in “Government Attorneys in the Judicial Process” should be translated as “lu t s và công t viên” 32 There is another case that in my opinion, there should be some changes when the phrase “U.S Solicitor General” is translated as “T ng C v n pháp lu t Hoa K ” According to Wikipedia online-dictionary, “solicitor” has many meanings: “A solicitor is a type of lawyer... function of a prosecutor Thus, in this case, “U.S Solicitor General” must be translated as “Chánh án Hoa K ”, not “T ng C v n pháp lu t Hoa K ” In other cases, I think the translation version is quite accurate For example, the phrase “State Attorneys General” is translated as Các t ng ch ng lý c a bang” Let us consider the context: “Each state has an attorney general who serves as its chief legal official... give legal advice for people, represent and other people in courts However, gradually, there are other terms to denote specific functions of lawyers For example, there is an article named “Ngh lu t s doanh kinh Vi t Nam” on website http://www.nclp.org.vn/News/ykls/2005/06/779.aspx which requires that there should be other terms to call lawyers in Vietnam According to “T" i!n ti ng Vi t”, the two words... “th m phán c p qu n” In chapter 2 of the document “Introduction to the U.S Legal System”, HISTORY AND ORGANIZATION OF STATE JUDICIAL SYSTEMS, the term “magistrate” is translated as “th m phán hòa gi i và ti!u hình” That way of translation is a bit long and may cause difficulties for people to understand There are not many documents in Vietnamese related to legal titles translated into English If available,... are those who declare their opinions and recommendations to the parties in a lawsuit and who provide contact with the barrister To overcome the conceptual confusion, barrister is translated as "lu t s tranh t ng," meaning the "lawyer in court," whereas "the solicitor" is translated as " lu t s t v n" which means the "consultant lawyer." Concepts peculiar to the Western legal and parliamentary systems . kinh doanh có iu kin, các t chc hoc cá nhân không
c phép kinh doanh mà kinh doanh, hoc c phép kinh doanh mà trong quá trình kinh
doanh không. dch gia các bên ký kt v
vic thc hin công vic sn xut, trao i hàng hoá, dch v, nghiên cu, ng dng tin b
khoa h c k! thut và các tho