Difficulties in translating legal terms

MINISTRY OF EDUCATION AND TRAINING HO CHI MINH CITY UNIVERSITY OF LAW DEPARTMENT OF LEGAL LANGUAGES GRADUATION THESIS B.A DEGREE IN ENGLISH Major: Legal English DIFFICULTIES IN TRANSLATING LEGAL TERMS Supervisor: L.L.M PHAM THI PHUONG ANH Student: NGUYEN PHUONG HA Student ID: 1452202010013 Class: LE 39 Ho Chi Minh City, 2018 ACKNOWLEDGEMENT Throughout nearly years studying at the University of Law of Ho Chi Minh City and months of practicing in HTC International law firm (HTC), I have learned so many things From the basic theories and skills to practical knowledge and experience Regarding to the school, I would like to express my sincere and profound gratitude to you, all my beloved teachers in the Department of Legal Languages - Ho Chi Minh City University of Law, who devoted wholeheartedly to cultivate, provide important and necessary knowledge for me to complete the course and be the basis for future work This thesis cannot be finished without the guidance of Ms Pham Thi Phuong Anh, you are always one of the best teachers for me I will cherish every lesson that you have given me and my classmates In additionally, the experience that I gained when I have the chance to intern in HTC also contribute to my work Finally, I would like to thank all my friends and my family, who are always encourage and motivate me throughout this journey TABLE OF CONTENT INTRODUCTION The urgency of the thesis Literature review Research objectives Research subjects Scope of research Research methodologies Research structure 4 5 CHAPTER 1: Legal terminology and legal translation: Legal terminology: Legal translation: CHAPTER 2: Legal dictionaries Monolingual dictionaries Bilingual dictionaries 11 CHAPTER 3: MAJOR ISSUES IN TRANSLATING LEGAL TERMS: Legal system-bound terms: Ordinary meaning vs legal meaning: Legal synonyms: 14 17 21 CHAPTER 4: TYPES OF EQUIVALENCE: Functional equivalence: Formal equivalence or linguistic equivalence: Transcription or a borrowing: A descriptive or self-explanatory translation: CONCLUSION 23 24 24 25 27 INTRODUCTION The urgency of the thesis In the context of globalization, the need to learn and access to foreign law by organizations and citizens in different countries has increased significantly In addition, the fact that a country has access to the laws of other countries to deal with legal issues involving foreign elements has become a commonplace, and that legal information in other countries is not only aimed to organizations and citizens of that country but also to foreign organizations and individuals It is clearly that English has become an international language, as evidenced by the fact that international conventions and international legal principles are almost promulgated in English The translation of legal documents from the mother tongue of many countries into common languages, especially English and vice versa, is essential for posting on the official websites of the countries so that foreign organizations and individuals can easily access Legal translation requires extensive knowledge of the law, a translator in addition to thorough knowledge in the professional field must have good command in the exact use of legal terms and writing style During my study in the legal environment, I realize that legal translation is a close combination between the use of the principles of linguistics and legal knowledge The role of linguistics is important when there is no equivalent appears, as we will not be able to produce an accurate translation, which is extremely important when it comes to the legal field, without in-depth understanding of the law Nowadays in Vietnam, a number of lawyers who familiar with Vietnamese law and foreign language and competent in linguistic are still insufficient Many people working in legal fields in general and lawyers in specific are still depends on translators or interpreters to translate foreign legal document or present in courts, who mainly expertise in linguistic not law As mentioned above, in order to create a good translation, none of requirements can be missed In addition, training courses for legal translation as well as reliable bilingual legal searching tools have not been paid enough attention, causing difficulties in translating legal documents, especially difficult caused by the legal terms "The law is a profession of words." – David Mellinkoff has begun his work “The language of the law” by that statement Contracts, statues, constitutions,…are built up by words Legal language is known by its complex and sophisticate of words The troubles arising out of translating legal terms also have a huge impact on the whole translation For the reasons above, I chose the topic “Difficulties in translating legal terms” as the topic of my graduation thesis Literature review : Throughout the world, there are many scholars who have dedicated their time and effort to study legal language as well as legal translation work: Deborah Cao has many years of experience in the study and application of linguistics, especially the legal language She has written a great deal of books on legal translation such as "Translating law", "Chinese language in law", etc In particular, "Translating law" is an extremely useful book for those who want to study legal translation The book mainly addresses the characteristics of translation, from general translation to the specificity of each type Particularly in the fourth chapter, she devotes herself to the translation of legal terminology and the confusion surrounding it Each issue is clearly divided and there are specific evidences The examples in this chapter illustrate the difficulty of translating the legal term between the Common Law and the Civil Law countries Susan Sarcevic with the book “New Approach to Legal Translation” dived into the study of the theory of language and translation in the first chapter to the fourth, then chapters five through eight are practiced for many languages The book does not forget to point out the difficulties of legal translation between countries in different legal systems In additional, there are many research work and journal about legal language and translation such as “A Beginner’s Course in Legal Translation: the Case of Culture – bound Terms” by Malcom Harvey discusses characteristics of legalbound terms and how to translate them; “Difficulties Encountered in the Translation of Legal Texts: The Case of Turkey” written by Dr Ayfer Altay demonstrated the issues in legal translation by case study; research work “Legal terminology in translation practice: dictionaries, googling or discussion forums?” by Lucja Biel studies about characteristics of legal terminologies and comparison among translation tools to find the advantages and disadvantages of those tools Regarding to Vietnamese authors, Mr Tran Huu Hai with the journal “Problems and difficulties encountered in the translation of legal texts between English and Vietnamese” has opened up many ideas about researching this field He mentioned a lot of aspects of legal translation, but has not gone into the ways of solving the problems Ms Do Phuong Dung has written her thesis “Analyzing lexical features applied in translation of legal texts, with special reference to commercial contracts” discussing many prominent lexical features in legal texts and contracts in specific Her work provides a detail analysis of many useful features that we frequently encounter in practice 3 Research Objectives The aim of this work is: (i) outlines the characteristics of legal translation; (ii) identifies a number of issues related to the translation of legal terms; and (iii) to deal with such problems in translating legal terms Research Subjects: The subjects of this thesis are characteristics of legal terminology and legal translation from English to Vietnamese and vice versa as well as major issues related to translation of legal terms such as legal system-bound terms, plain meanings and legal meanings of words and uncertainty in some particular legal terms Those issues are arisen not only from contracts or legal documents but also from different types of translation tools such as dictionaries, web search Scopes of Research: Due to limited time and access to resources, the scope of this thesis includes: (i) analysis of key issues identified as mentioned above about translating legal terms, in addition, there may be other cases that this work has not mentioned and (ii) translations from English to Vietnamese mentioned in this article are mainly cited from legal dictionaries, general dictionaries and commercial contracts, documents related to contracts Research Methodologies: The research methodologies used in this paper are (i) synthesis method: study, analyze and synthesize knowledge from books, articles and researches of the same genre to improve general knowledge theoretically; (ii) contrastive method: compare the translations and the source texts to determine the degree of equivalence between them in order to decide the appropriate translation strategies Research structure: This thesis is divided into three chapters: Chapter 1: Legal terminology and legal translation Chapter 2: Legal dictionaries Chapter 3: Major issues in translating legal terms Chapter 4: Typologies of equivalents Chapter 1: Legal terminology and legal translation: Legal terminology: “Words are the building blocks of language”, Cao D has stated that in her monument work “Translating law” to begin a chapter about legal terminology - “it is noticeable that one of distinctive feature of legal language is the complex and unique legal vocabulary” As legal language is a technical language, legal terminology also requires a certain precision and technique to translate successfully, which is considered to be the major source of difficulty in legal translation Legal vocabulary contains many terms associated with the legal system and culture of a country In law, words play a very important role in shaping the particular characteristics of this language, so to deal with legal terms, the user needs to thoroughly understand the law and how to use the terms in specific cases In translation, due to the differences between the legal and cultural systems, so in many cases, we cannot find the equivalent, causing both linguistic difficulties and problems to ensure the legality of the context The types of legal terms in English: • Phrasal verbs • Common words with uncommon meanings • Double synonyms also known as tautologies • Loan translations • Old English words • Borrowed words • Terms of art • Jargon • Latin terms Legal translation: Legal language refers to the language of and related to law and legal process It is a type of register, that is, a variety of language appropriate to different occasions and situations of use, and in this case, a variety of language appropriate to the legal situations of use As Tiersma suggests that legal language should be called an argot, a dialect, a register, a style and even a separate language In fact, it is best described with the relatively new term sublanguage, a sublanguage that has its own specialized grammar, a limited subject matter, contains lexical, syntactic and semantic restrictions and allows deviant rules of grammar that are not acceptable in the standard language Nevertheless, we describe it, legal language is a complex collection of linguistic habits that have developed over many centuries and that jurists have learned to use quite strategically (1999, p.142) Legal translation is a special type of LSP translation involving cross linguistic communication in the legal context As stressed by Wilss (1994, p38): “Many aspects of translation, in particular in the field of LSP, transcend cultural boundaries and are, in some sense, universal Simplifying somewhat, translation can be depicted as a domain of socioculturally determined linguistic behavior with both culture-specific and universal components.” The translation of law has played a very important part in the contact between different people and different cultures in history and is playing an even more important role in our globalized world However, legal translation is a Two major legal systems in the world are the Common Law and the Civil Law The Common Law legal system consists of countries such as England, America, Australia, New Zealand, Canada, etc The Civil Law legal system countries are France, Germany, Italia, Japan, South Korea, etc Vietnam is considered by our own scholars to be Socialist legal system, but we still share some characteristics of Civil Law one Cao D (2007, p60) has mentioned three categories of legal system-bound terms were: (1) words associated with legal personnel; (2) words associated with court structures; (3) words associated with particular areas of law and institutions Regarding words associated with legal personnel, it is noticeable to see the difference in the name of lawyer in England and Vietnam In England, lawyers are divided into solicitors and barristers The differences between these two titles are reflected not only in routine work: a solicitor usually prepares documents, consults clients on legal procedure, and a barrister will represent clients defending in court, but also in the excavation process, work environment, etc Meanwhile, in Vietnam, we also have phrases like “luật sư tư vấn” and “luật sư tranh tụng” However, these two types are similarly trained in the same way that they are trained in the judicial institute and get the certificate to practice law 15 For the court system, this is also an area associated with the legal system The common court system in Commonwealth countries is very different from the court system in the countries of Civil law Therefore, the terms associated with the names of the courts can hardly find equivalent in other languages For example, the court system in the UK is as follows: We can see how the arrangement, division and function of the courts are very different from that of Vietnam In addition to concepts such as "Criminal division", "Civil division", "High court", the translation of these names into Vietnamese can easily find equivalents, translators may apply linguistic equivalent or word-for-word translation technique for some of them, such as "Family Court" is “Tịa gia đình” or "Queen's Bench Division" become "Tịa Nữ hồng" However it is still very difficult for those who not have an understanding of the British legal system to understand the function of these courts unless they are further explained in terms of the concept behind them 16 However, as mentioned in the Legal dictionaries part, dictionaries mainly focus on providing the equivalent words for SL terminology, which rarely provide definitions of concepts associated with those terms Thus, only those who have knowledge of comparative law and the ability of foreign languages to understand the meaning of these terms in particular and the legal systembound terms in general And the last one is regarding to words associated with particular areas of law and institutions Each legal system will have division and branches that contain separate vocabulary For example, in the “Introduction to international legal English” textbook used for teaching LE students from the second year, right in the first reading section, the phrase "equity and trusts" has appeared as a core subject beside "criminal law, civil law, contract law, tort law, land law, administrative law and constitutional law" (Introduction to international legal English, 2013, p1) "Equity and trusts" are then translated in the glossary as "legal principles applied to achieve fairness where the strict rules of law would be too harsh" In addition, "Equity" is translated as "luật công bằng" However, one more time, since the concept of equity is a law division that does not exist in Vietnam, it creates confusion for learners In Vietnam and other Civil law countries, equity can be understood as fairness and equality, just like that However, in the Common law system, it is a very important legal division As such, this deficiency may lead to misconceptions about the existence of a division for non-Common law citizens Ordinary meaning vs legal meaning: Besides the specialized vocabulary used in the law, in English, there are also many words that contain both original meaning and legal meaning In her 17 graduation thesis, Ms Do Phuong Dung has also done a research about this kind of term which called “Semi-technical term” The fact that a word has a lot of meaning puts the translators in the challenge that they have to determine exactly what it means to be used in the particular context These terms are often encountered in contracts, or documents relating to contracts rather than state issued documents or administrative documents Let’s take an example of the term “secure”: “Please review the terms of this letter (referred to as the "Term Sheet") and if you agree to the principal terms and conditions below please sign and submit your intended investment towards the financing of the Picture in the amount no less than Five Thousand United States Dollars (US$500,000.00) ("Investment"), which shall be a non-secured, non-recourse investment and payable to Company under the following terms” (Hãy xem điều khoản thư (sau gọi “Bảng điều khoản”) đồng ý với điều khoản điều kiện bên xin kí tên gửi khoản tiền đầu tư dự định bạn để đầu tư cho Bức tranh với số tiền khơng trăm nghìn la, khoản tiền xem là khoản đầu tư khơng bảo đảm, khơng địi hỏi trả cho Công ty theo điều khoản sau) Normally, the word “secure” means to fix or to lock something firmly, but in this paragraph, the term “secure” has a meaning that a creditor is protected by a pledge, mortgage, or other encumbrance of property that helps ensure th financial soundness and confidence (Black’s law dictionary, edition), so it makes the phrase “non-secure investment” means that investment is not a protection for the creditor 18 Another popular case is that the term “perform” In general English, “perform” means to entertain people by dancing, singing, acting, or playing music, meanwhile, this term is used pretty often in contracts with the meaning that a party fulfill his obligations under a contract: “Ensure that it has sufficient capacity in accordance with the law to perform the work for Party B.” (Đảm bảo có đủ lực theo quy định pháp luật để thực công việc cho Bên B.) “Two Parties must continue performing the Contract right after the end of Force Majeure Event Time for Contract performance will be extended of time upon occurrence of Force Majeure Event when Affected Party can’t perform its obligations according to the Contract.” (Hai Bên phải tiếp tục thực Hợp đồng sau Sự kiện bất khả kháng chấm dứt Thời gian thực Hợp đồng kéo dài thời gian diễn Sự kiện bất khả kháng mà Bên bị ảnh hưởng thực nghĩa vụ theo Hợp đồng.) “Damages” and “Damage” are frequently used in legal documents They are not exactly one word, but they are so similar that can cause misunderstand for careless people Damages: Money claimed by, or ordered to be paid to, a person as compensation for loss or injury – according to Black’s law dictionary Damage: (n) harm or injury caused by something is broken or spoiled – according to The Oxford standard English English Vietnamese dictionary In case either Party’s violation of any term in this Contract results in damages to other Party, besides penalties as provided in this Contract, Offending Party 19 will take responsibility for indemnifying other Party Aggrieved Party is obliged to give evidences for its claims (Trường hợp Bên vi phạm điều khoản Hợp đồng mà gây thiệt hại cho Bên kia, ngồi khoản phạt vi phạm theo quy định Hợp đồng này, Bên gây thiệt hại có trách nhiệm bồi thường thiệt hại cho Bên lại Bên bị thiệt hại có nghĩa vụ chứng minh yêu cầu bồi thường mình.) The plaintiff seeks $8,000 in damages from the defendant (Nguyên đơn đòi 8000$ tiền bồi thường từ bị đơn) The term “interest” also concludes original meaning and legal meaning: As original meaning, interest means: “the feeling of wanting to give your attention to something or of wanting to be involved with and to discover more about something” However, when it comes together with the term “rate”, it become produce a legal meaning as: “The percentage that a borrower of money must pay to the lender in return for the use of the money, usu expressed as a percentage of the th principal payable for a one-year period.” (Black’s law dictionary edition) As used in a contract: In case Party B delays in paying service fee as stipulated in Article herein, Party B must pay interest on delayed payment according to prime interest rate as stipulated by the State Bank of Vietnam at the time of payment in proportion with the time of delayed payment In any case, delayed payment isn’t allowed to be more than 30 days 30day(s) Exceeding this period of time, Party A reserves the right to unilaterally terminate the Contract and not to return the amount paid by Party B 20 (Trường hợp Bên B chậm toán tiền mua hàng theo quy định Điều Hợp đồng này, Bên B phải trả lãi khoản tiền chậm trả theo lãi suất Ngân hàng Nhà nước quy định thời điểm toán tương ứng với thời gian chậm toán Trong trường hợp, việc chậm tốn khơng vượt q 30 ngày Quá thời hạn này, Bên A có quyền đơn phương chấm dứt thực Hợp đồng trả lại số tiền mà Bên B toán.) Legal synonyms: Another terminological problem is that a legal term may have several synonyms, some of them may resemble in some aspects, but differ in others There are terms considered as synonyms as they are translated to one meaning in Vietnamese Three words “Parliament”, “Congress” both can be translated as “Nghị viện” in Vietnamese However, the usages of these terms are varied from different legal system According to the Black law dictionary: “Congress” means the legislative body of the federal government, created under U.S Const art I, § and consisting of the Senate and the House of Representatives; “Parliament” means the supreme legislative body of some nations; esp in the United Kingdom, the national legislature consisting of the monarch, the House of Lords, and the House of Commons Therefore, we cannot use the phrase “Parliament of the USA” or “The UK’s Congress” when translate the phrase “Nghị viện Anh/Mỹ” Another common misconception of synonyms and causing difficulty of choosing a translation are the two "stock" and "share" words In the field of corporation law, we often see these two words refer to a portion of capital or 21 ownership in a company and many people believe that they are synonymous and can be used interchangeably However, the difference between the two words is there, although sometimes we decide to ignore it If we look closely at the meaning of the word, "stock" has a broader meaning than "share" “Stock” has the general meanings, which is a general term used to describe the ownership certificates of any company, when share refers to the ownership parts of a particular company “Stock” may include others types of ownership certificates rather than “share” such as bonds, notes In the English version of the Enterprise Law 2014, they used the terms “share” in the translation for Article 113 “Types of shares”; or the phrase “Giấy chứng nhận sỡ hữu cổ phần” shall be translated into “Shares ownership certificate” 22 Chapter 4: Types of equivalence: Translation is the process of finding the equivalent word in TL for a term in SL And when facing the difficulties mentioned above, translators have been using a lot of methods to overcome to bring the best and most accurate translation In this article, I only propose four methods that commonly use equivalent words The four main techniques may be placed on a continuum ranging from SLoriented strategies to TL oriented strategies The term 'equivalence' does not imply one-to-one correspondence, but has the more pragmatic meaning here of a possible translation, the acceptability of which is subject to a number of variables Functional equivalence: This means using a referent in the TL culture whose function is similar to that of the SL referent There will inevitably be connotational or denotational differences between the SL and TL term the translator should be satisfied that the referents are sufficiently close for the purposes of the TL text Authors are divided over the merits of this technique: Weston describes it as the deal method of translation" (1991:23), whereas Sarcevic claims it is misleading and should be avoided in the translation of law (1985:131) Experience shows that learners tend to overuse this device, no doubt because it is aesthetically satisfying and allows them to apply newly-acquired knowledge about the TL system This kind of equivalent is suitable for two legal system which are quite different However, when the two concepts stand too far from each other, functional equivalence may be able to be applied 23 Formal equivalence or linguistic equivalence: This equivalence means a word-for-word translation A number of formal equivalents are also functional equivalents since they correspond to institutions which exist or have existed in the TL culture The merits and demerits of formal equivalence are in many ways the mirror-image of those applying to functional equivalence In a text intended for the lay reader, such resolutely TL- oriented terms may appear stilted and at times obscure; but the meaning is generally clear lawyers, especially given the influence of French on legal English Furthermore, such terms are referentially unambiguous, easily passing the test of back translation This helps readers recognize the term if they need to consult a SL document or the work of another translator Authors differ over the acceptability of instances of formal equivalence, especially when they involve naturalisation The translation of “Equity law” and “The Queen’s Bench division” are example for this kind of equivalence Transcription or a borrowing: Those words stand at the far end of SL-oriented strategies If the term is formally transparent or is explained in the context, it may be used alone In other cases, particularly where no knowledge of the SL is presumed in the reader, transcription is accompanied by a gloss or a translator's note The gloss may point out significant conceptual or procedural differences For reasons of economy, the gloss is usually omitted in subsequent occurrences of the term The main advantage of this device is that it is referentially unambiguous However, the need for a gloss or footnote makes it somewhat stilted and longwinded, and makes the translator's presence intrusive Weston disapproves of this strategy on principle, claiming that it admits defeat (1991, p26) It is best 24 used sparingly in texts targeted at the lay reader, but can be appropriate for the specialised reader who requires a high degree of precision and for whom clarity takes precedence over fluency and conciseness An example for borrowing term that is commonly used in contract law is the name of a type of contract “License contract”, which is a written agreement by which the owner of a property gives another party permission to use that property under specified parameters, is used in Vietnam as “Hợp đồng lixăng” The word “li-xăng” is produced from the pronunciation of the word “license” and be used directly as a name of a type of contract without any further explanation because people has understood the concept and been using it for long time A descriptive or self-explanatory translation This method uses generic rather than culture-bound terms to convey the meaning Although technically a gloss, it is sufficiently concise to function as a quasi- autonomous term without the need for transcription This solution has the advantage of being transparent and easy to memorise It is appropriate in a wide variety of context equivalent considered insufficiently clear, text aimed at specialised reader, it can be helpful add the original SL avoid ambiguity Back translation can again provide a convenient acceptability From an ideological point of view, a descriptive translation can be seen as a compromise solution, avoiding the extremes of both SL and TL oriented strategies 25 CONCLUSION Legal language is a technical language, so it is difficult for ordinary people to study and understand, and the task of the translator is to make the translation as easy and accurate as possible However, it is not an easy task because legal translation contains specific features that make it difficult for the translator Legal vocabulary is one of those The legal vocabulary contains many words related to legal and cultural systems, different concepts between each countries and territories Therefore, in order to correctly translate the terms, the translator needs to have extensive knowledge of the law, not only of his country but also of the source language, and the techniques of linguistics to be able to convey the full meaning of the legal texts During the translation process, the translator may face difficulties related to terminology such as terminology associated with the legal system leading to the inability to find equivalents, or words that contain both common meanings and legal meaning are commonly used, so translators need to be very careful to correctly define the meaning to be applied, or synonyms in the source language, they may be similar in one In some cases, however, their meaning is different Therefore, when meeting these words, translators need to have extensive knowledge in the relevant legal field and comparative law in order to choose the most appropriate and accurate translation In addition, the article also mentions the types of equivalents used in the translation, the function and the context in which they are used I hope that, with this article, the issue of legal translation will receive more attention from law practitioners and linguistic scholars As we are living in an integrated world, the need of learning and applying international law is growing rapidly, that lead to the need for legal translation is so much more variable Law is 26 a highly specialized field, so the translations, even if they have reference value, are not binding, their importance are still essential 27 REFFERENCES Books: Deborah Cao, 2007, Translating law Clevedon: Multilingual Matters Company Mellinkoff, D (2004) The Language of the Law, Oregon: Wigf and Stock Publisher Sandor Hervey and Ian Higgin, THINKING TRANSLATION A Course in Translation Method: French-English, London and New York Susan Sarcevic, 2000, New Approach to Legal Translation The Hague/London/Boston” Kluwer Law International Tiersma, P.M (1999) Legal Language: London, University of Chicago Press Journals and researchs: Ayfer Altay, 2002, Difficulties Encountered in the Translation of Legal Texts: The Case of Turkey Łucja Biel, Legal terminology in translation practice: dictionaries, googling or discussion forums? Malcom Harvey, A Beginner’s Course in Legal Translation: the Case of Culture – bound Terms, University Lumire Lyon Marcus GALDIA, PhD, JD, Professor of Law, STRATEGIES AND TOOLS FOR LEGALTRANSLATION, International University of Monaco Peter Sandrini , Legal Terminology Some Aspects for a New Methodology Tran Huu Hai, Problems and difficulties encountered in the translation of legal texts between English and Vietnamese, Radegundis Stolze, Translation and Law, TU Darmstadt Dictionaries: th Black’s law dictionariy edition Legal dictionary English-Vietnamese