Application of house’s model for translation quality assessment in assessing the english version of the vietnam’s law on investment no. 59/2005/qh11

Application of house’s model for translation quality assessment in assessing the english version of the vietnam’s law on investment no. 59/2005/qh11

LƯƠNG TỐ LAN

APPLICATION OF HOUSE’S MODEL FORTRANSLATION QUALITY ASSESSMENT INASSESSING THE ENGLISH VERSION OF THE

VIETNAM’S LAW ON INVESTMENT NO 59/2005/QH11

ÁP DỤNG MÔ HÌNH ĐÁNH GIÁ CHẤT LƯỢNGBẢN DỊCH CỦA HOUSE VÀO VIỆC ĐÁNH GIÁ

BẢN DỊCH TIẾNG ANH LUẬT ĐẦU TƯ SỐ 59/2005/QH11

M.A Thesis

Combined Programme Thesis

English Linguistics60 22 15

HA NOI - 2007

LƯƠNG TỐ LAN

APPLICATION OF HOUSE’S MODEL FORTRANSLATION QUALITY ASSESSMENT INASSESSING THE ENGLISH VERSION OF THE

VIETNAM’S LAW ON INVESTMENT NO 59/2005/QH11

ÁP DỤNG MÔ HÌNH ĐÁNH GIÁ CHẤT LƯỢNGBẢN DỊCH CỦA HOUSE VÀO VIỆC ĐÁNH GIÁ

BẢN DỊCH TIẾNG ANH LUẬT ĐẦU TƯ SỐ 59/2005/QH11

M.A Thesis

Combined Programme Thesis

Major: English Linguistics

Code: 60 22 15

Supervisor: Asso Prof Dr Lê Hùng Tiến

HA NOI - 2007

STATEMENT OF AUTHORSHIP

This work contains no material which has been accepted for the award of any otherdegree in any university or other tertiary institution and, to the best of myknowledge and belief, contains no material previously published or written by otherpersons, except where due to references has been made in the text.

First of all, I would like to send my deepest gratitude to my supervisor, Asso Ph.D.Lê Hùng Tiến, who guided me throughout the accomplishment of this research If ithad not been for his kind guidance, insightful comments and valuable support, mythesis would not have been completed.

I also owe my gratitude to my family, who have always been very supportive withmy study My parents always encourage me in difficult times And my mother,especially, often helps me to do housework so that I can have more time to work onmy papers.

Personally, I highly appreciate all the assistance I am greatly interested in this studyas it is of great help for myself However, I am responsible for any remainingmistakes and short comings that are found in this work

In today’s world where no nation can ignore the economic integration trend,the demand for easy access to the body of legal documents of a country is greaterthan ever before More and more legal documents are being translated into English,the international language of communication, for reference purposes This calls forstudies into the field of legal translation to come up with methods and strategies oftranslation, as well as assessment and evaluation of translations.

This study aims at revealing the most basic features of Vietnamese andEnglish legal language, and basic concepts of translation theory in general, legaltranslation in particular Then it will test the appropriateness of House’s model fortranslation quality assessment in assessing English translations of Vietnamese legaldocuments This is done through the application of the model in assessing theEnglish version of the Law on Investment 2005 of Vietnam and conclusions basedon the findings Finally, implications for translating Vietnamese legal documentsinto English will be proposed

1.1.1 An overview of legal traditions in the world 4

1.1.3.1 History of Vietnamese legal language 71.1.3.2 Linguistic features of Vietnamese legal language 7

1.1.4.1 History of English legal language 101.1.4.2 Linguistic features of English legal language 11

1.2.3 Translation equivalence and assessment 21

CHAPTER 2 APPLICATION OF HOUSE’S MODEL

3.3 Implications for translating Vietnamese legal documents into English 59

LIST OF ABBREVIATIONS

SL: Source LanguageTL: Target LanguageST: Source TextTT: Translation Text

LIST OF DIAGRAMS

The schema for analyzing and comparing original and translation texts Page 30

INTRODUCTION1 Rationale for the study

Globalization and integration is an inevitable trend in today’s world Anycountry that rejects this trend will soon be lagged behind in all major fields of sociallife But communication is successful only when the participants can understandeach other This cannot be achieved if nations with different languages never try tounderstand the language of another Therefore, the need for translation betweenlanguages is greater than ever before And because English is an acceptedcontemporary international language, more and more documents in other languagesare being translated into it These are documents of all fields: politics, economics,culture, etc But when can a translation be considered ‘good’ still draws muchdiscussion Translation theorists have their own founded criteria for translationquality assessment Among distinguished scholars of this field is Julian House, aGerman linguist, with her model for translation quality assessment

On its route to international economic integration, Vietnam has to makemany new laws as objectively required Laws in Vietnamese obviously have legal

validity But reliable English versions of these laws are desirable to foreigninvestors before and on coming to do business in Vietnam Though these Englishversions do not have legal value, they should facilitate the process of understanding

and obeying Vietnam’s laws of foreign enterprises A good translation of a legaldocument will mitigate misinterpretations and misapplications.

Of the most recently enacted laws in Vietnam, the Law on Investment of2005, number 59/2005/QH11 is one that has received much attention anddiscussion The Law has been translated into English by several translators An

assessment of the English version of this law is thus desirable.

2 Significance of the study

The results of this study will help test the quality of the English translation ofthe Law on Investment 2005 of Vietnam under the model developed by the Germanlinguist House, and suggest any timely changes should there be to limit avoidablemisunderstandings by foreign investors in interpreting the law.

Besides, the study will also propose some suggestions concerning thetranslation of Vietnamese authoritative legal documents into English.

3 Scope and objectives of the study

3.1 Scope of the study

The Law on Investment 2005 consists of eighty-nine articles, divided into tenchapters A study of the whole document is therefore an overload for this paper So

the paper will analyze chapter II only, the title of which is “Bảo đảm đầu tư” There

are seven articles in this chapter, from Article 6 to Article 12.

3.2 Research questions

The study aims at finding answers to two questions:

1 How good is the translation according to House’s model and what are theremaining problems of the translation?

2 What are some implications for the translation of Vietnamese legaldocuments into English?

4 Research methods

This study aims at assessing the quality of the English translation of the Lawon Investment of Vietnam Therefore, a set of parameters for assessment isnecessary Among the various criteria and models for translation qualityassessment, House’s model is chosen in this study because it is deemed to have acomprehensive set of parameters for assessing functional and pragmatic equivalenceof the translation text Furthermore, as House argues, the model can be applied witha wide range of texts.

In applying House’s model, a source text is first selected, then analyzed todraw its textual profile along the eight situational dimensions and a statement offunction of the ST will be made Similarly, a profile of the translation text will become up with and compared with the ST’s to find out mismatches before astatement of quality can be drawn about the TT.

5 Overview of the study

The study contains three chapters:Chapter 1 – Review of Literature

The first part of this chapter will first introduce the main legal traditions inthe world and then give a brief introduction to the legal system of Vietnam Afterthat, it will elaborate linguistic features of Vietnamese and English legal languages.

The second part discusses different aspects of translation: definition,methods and strategies, and equivalence and assessment Basic characteristics oflegal translation will also be presented.

Chapter 2 – Application of House’s model for translation quality assessment

In this chapter, House’s model for translation quality assessment will first bepresented and then applied in assessing the English translation of the Law onInvestment 2005 of Vietnam

Chapter 3 – Discussion of results and implications

Findings about the quality of the translation text which is based on theapplication of the model will be discussed and implications for translatingVietnamese legal documents into English will also be come up with.

CHAPTER 1

REVIEW OF LITERATURE1.1 CHARACTERISTICS OF LEGAL LANGUAGE

Statutes are generally promulgated by the state to govern people’s behaviorsin all aspects of social life They create, modify, or terminate the rights andobligations of individuals and institutions

Once enacted, a legal document becomes authoritative and no law-makerwill be there to explain the wording and to guide the application of the rules in thelaw Therefore, the rules set out in legal documents have to be clear, precise andunambiguous, on the one hand, to avoid misinterpretations and misapplications ofthem, and inclusive, on the other, to cover all the possible cases that can emergewithin the governing scope of the law To ensure these dual characteristics of legalrules, law-makers have to make full use of the written language, may it be English,French, Vietnamese or any other one Therefore, the language of this type ofdocuments is highly specialized

In this study, the term “legal texts” refers to any document within the field oflaw, and “legal documents” to statutes, documents issued by the law-making bodyof the country And “legal language” is restricted to the language of these legaldocuments

1.1.1 An overview of legal traditions in the world

Before the serial collapse of some socialist countries in the world in the early1990’s, there existed a strong belief among scholars in socialist countries that therewere only two traditions of law, i.e the socialist and the capitalist ones, with thelatter including Anglo-American as well as Continental (Civil) law systems.Western scholars, on the contrary, distinguish between two main traditions, i.e theAnglo-American and the Continental traditions, with socialist legal systemsbelonging to the latter one (Bogdan, 1994:63).

Today, it is commonly agreed that there are five groups of legal systemsworldwide distributed as follow:

Global Distribution of Legal Systems

Source: large.html

http://www.droitcivil.uottawa.ca/world-legal-systems/eng-monde-Of these five traditions, Civil Law and Common Law are predominant andwill be discussed further in details.

Civil Law, also known as Continental Law or Roman Law, originated fromRoman law, more specifically, from the sixth century “Corpus Juris Civilis”, a codeconsolidating all of the laws in continental Europe during the reign of Romanemperor Justinian In countries that follow the civil law tradition, statutes are thebasis of the legal system Solutions for each individual case are prescribed in theprovisions of the legal codes, on which sentences have to be based National legalsystems developed through the process of codification

Common Law shares roots in Roman law with Civil Law but has a muchdifferent evolution from that of Civil Law The general principles of Common Lawgrow out of the judicial decisions in court cases by individual judges over a long

period of time The main source of law and the basis for rules of conduct are pastcases, not codes or legislation The common law systems include all present andformer members of the British Empire, as well as the United States of America Butit should be noted that the present common law of the U.S differs to a great extentfrom the common law of Britain, despite the two countries being significantrepresentatives of Common Law Therefore, the language of these two systemsposes considerable differences in terms of technical terminologies

1.1.2 Vietnamese legal system

As stated above, the legal system of Vietnam, like those of other socialistcountries, is now considered a member of the Civil (or Continental) law tradition Ittakes nationally enacted legal documents as its basis Vietnamese statutes areenacted by the National Assembly of Vietnam, the highest organ of State power andthe only organ with legislative power of the Socialist Republic of Vietnam (the1992 Constitution of Vietnam, amended in 2000).

In a socialist-oriented country like Vietnam, law is an important means ofrealizing lines and policies of the Communist Party – the leading party – to ensurethe right path of development of the country, the foundation of which is publicownership This explains why the idea of public ownership appears quite frequentlyin Vietnamese statutes.

Vietnamese laws have a wide governing scope, from the organization andoperation of the State organs to the rights and obligations of the citizens, as well asthe operation of the different aspects of social life (Nguyen Dang Dung et al., 1995).The legal system of Vietnam consists of a constitution – the fundamentalstatute of the whole system, more than 100 statutes, and thousands of by-lawdocuments of all kinds (Hệ thống văn bản quy phạm pháp luật, Bộ Tư pháp, 2007).Since its independence in 1945, there have been five constitutions, with the onebeing in effect dated in 1992 And during its economic integration, Vietnam iscontinuously perfecting its legal system by amending old laws and enacting newones.

1.1.3 Vietnamese legal language

1.1.3.1 History of Vietnamese legal language

The history of Vietnamese legal language cannot be traced as clearly as itsEnglish counterpart because of its shorter history of development, as well as of theshorter history of the legal system

The development history of the Vietnamese language can be summarized asfollows, according to Tran Chi Doi, Nguyen Thien Giap (2005: 15-19) and theNational Center of social sciences and humanity (2002: 13-15):

Vietnamese as a distinct language did not start to develop until the 9th

century From the 9th century through the early 14th century, Vietnamese was usedby ordinary people as their mother tongue, but Chinese was still used as anadministrative tool.

The script of Vietnamese, the Nom, appeared in the period from the early14th to the late 15th centuries, during which Vietnamese had not gained its status asan administrative language This period also witnessed the development of a classof Chinese-Vietnamese words.

In 1651, with the Annam-Lustin-Latin dictionary by priest A de Rhodes,Vietnamese started to be recorded in Latin, which contributed to its emergence to bea scholarly language and even at times the state’s administrative language duringthe period from the early 16th to the early 19th centuries.

By the early 20th century, Vietnamese had almost completed its development.And after the August Revolution, it was recognized as the official language ofVietnam It is now the language of all socio-economic activities, including politics.

1.1.3.2 Linguistic features of Vietnamese legal language

Before Tien’s doctoral thesis in 1999, which studied linguistic features ofVietnamese legal language as a separate discourse type, legal documents were onlytreated as a sub-type of documents of the administrative style Some notable worksare those of Dinh Trong Lac and Nguyen Thai Hoa; and Cu Dinh Tu A study of

these works points out the following linguistic features of the language ofVietnamese legal documents:

1.1.3.2.1 Lexical features

* Words are rhetorical and there is a moderate number of bookish words * There is technical vocabulary for both the general legal field and specific

branches of law: chế tài, biện pháp hành chính, năng lực pháp luật, quy phạm pháp

luật, xét xử sơ thẩm, xét xử giám đốc thẩm, etc (general), bị can, đương sự, thếchấp, giao kết hợp đồng, thoả thuận hợp đồng, etc (specific)

* Nouns are used with a high frequency, especially nouns formed from verbs,making the document highly nominalized.

* There is a high percentage of words with Chinese origin

* Lexical items are carefully selected There are no vague or ambiguous words,no jargons, slangs or colloquial words.

1.1.3.2.2 Syntactic features

* Post-modifications in nominal groups are often extended to a rather

abnormal length: (doanh nghiệp) có vốn đầu tư nước ngoài đã đầu tư trong các lĩnh

vực không thuộc lĩnh vực đầu tư có điều kiện, (đầu tư) thông qua mua, bán cổ phần,cổ phiếu, trái phiếu và giấy tờ có giá khác của tổ chức, cá nhân (theo quy định củapháp luật), etc.

* Impersonal constructions

+ Avoidance of first and second personal pronouns

Nhà đầu tư được đầu tư phát triển

+ Passives

+ Nominalizations

Việc ưu đãi đầu tư, (thời hạn) hoạt động, (phù hợp với) quy hoạch sử dụngđất

* Use of modal verbs to establish rights and obligations

For establishing obliged and forbidden actions, the modal verbs “phải, không

được” are used For establishing permitted actions, the modal verb “được” is used.

Besides the explicit use of modal verbs, the sense of obligation can also be

expressed implicitly in Vietnamese: có thể (được), (phải) theo

* Long complex sentences with co-ordinate structures to classify or to detailthe circumstances of application of the provision.

Điều 87 Xử lý vi phạm

1 …

2 Người lợi dụng chức vụ, quyền hạn cản trở hoạt động đầu tư; có hành vi sáchnhiễu, gây phiền hà đối với nhà đầu tư; không giải quyết kịp thời yêu cầu của nhàđầu tư theo quy định; không thực thi các công vụ khác do pháp luật quy định thìtuỳ theo tính chất, mức độ vị phạm mà bị xử lý kỷ luật, xử phạt hành chính hoặc bịtruy cứu trách nhiệm hình sự.

(Law on Investment 2005 of Vietnam)* A system of enumeration with numbers I, II, III, …, 1, 2, 3, … or letters a, b,c, … is used to separate the parts of complex structures, making them clear in termsof meaning.

* Use of syntactic discontinuity

* Chapters and articles are summarized with a noun phrase: Điều 45 Thủ tục

đăng ký đầu tư đối với dự án đầu tư trong nước, Điều 66 Bảo lãnh của Nhà nước

cho một số công trình xây dựng và dự án quan trọng.

1.1.3.2.3 Textual features

* Repetition of nouns

Điều 36 Ưu đãi về sử dụng đất

1 Thời hạn sử dụng đất của dự án đầu tư không quá năm mươi năm; đối với dự ánđầu tư có vốn đầu tư lớn nhưng thu hồi vốn chậm, dự án đầu tư vào địa bàn cóđiều kiện kinh tế - xã hội khó khăn, địa bàn có điều kiện kinh tế - xã hội đặc biệtkhó khăn mà cần thời hạn dài hơn thì thời hạn giao đất, thuê đất không quá bảymươi năm.

* Use of anaphoric and cataphoric reference

Điều 29 Lĩnh vự đầu tư có điều kiện

1 …

2 Đối với nhà đầu tư nước ngoài, ngoài các lĩnh cự quy định tại khoản 1 Điều này,

* Avoidance of pronouns

* Cognitive structure of “(Nếu) X (+ X’ + X’’ + …) thì Y (+ Y’ + Y’’ + …)”In this structure, X and Y are the core, and X’, X’’ … as well as Y’, Y’’ … aredetailing parts.

Điều 36 Ưu đãi về sử dụng đất

1 …

Khi hết thời hạn sử dụng đất, nếu nhà đầu tư chấp hành đúng pháp luật về đấtđai và có nhu cầu tiếp tục sử dụng đất thì sẽ được cơ quan nhà nước có thẩmquyền xem xét gia hạn sử dụng đất phù hợp với quy hoạch sử dụng đất đã được phêduyệt.

The core of this provision is “( Nếu) nhà đầu tư có nhu cầu tiếp tục sử dụng đất thìđược xem xét gia hạn.”

1.1.4 English legal language

1.1.4.1 History of English legal language

Modern legal English is shaped by the long history of development ofCommon Law of Britain According to Peter Tiersma, the history of English legallanguage can be summarized as follows:

The Anglo-Saxons drove away the Celtic language of the original inhabitantsof England and their laws left traces in present legal English Some Anglo-Saxon

words or legal terms still exist today, such as write, ordeal, witness, deem, oath.

In the late 6th century, Christian missionaries came and brought with themLatin This language became predominant over English and was the language offormal written legal documents.

After the Norman conquest in 1066, French became the language of power,but Latin was still used as a written language of the law until the end of the 13th

century And up to today, legal maxims (like per pro – with the authority of, as in

‘the secretary signed per pro the manager’), names of writs and terminology for

case names (versus, ex rel, etc.) are still in Latin But by the 14th century, Frenchhad replaced Latin to be the language of statutes Some characteristics of this

French are still found in modern legal English: addition of initial e to words;addition of –ee to words to indicate the person who was the recipient or object of anaction; adjectives that follow nouns (as in attorney general, letters testamentary,

malice aforethought.

But as the language for legal purposes, Latin and French were only used bypeople of the upper class and by legal professionals So soon after its ascendancy tobe the predominant language of the law, French declined to be a living language andfinally started to be replaced by English in the legal field in the late 15th century.

Along with the colonization of the British Empire, English common law andlegal English were transported to many countries in the world, including NorthAmerica Yet, the English legal language of these two systems are not identical.There are different concepts as well as different words for similar concepts For

example, there is no distinction between solicitor and barrister in the United Statesas in Britain; and American corporate law is equivalent to British company law.

1.1.4.2 Linguistic features of English legal language

Since the 1980s, there has been a growing number of studies into the field ofEnglish legal language Some notable studies are those of Bhatia, Melinkoff, Maleyand Tiersma In this section, their findings will be summarized in terms of lexical,syntactic and textual features of English legal language.

1.1.4.2.1 Lexical features

Perhaps the lexicology of legal English is the most distinctive feature makingit highly specialized

a) Technical vocabulary

* Legal English makes use of a great deal of terminology that is generally

unfamiliar to the lay audience These are words and phrases like restrictive

covenant, restraint of trade, promissory estoppel, etc

- restrictive covenant: clause in a contract which prevents someone from

doing something

- restraint of trade: (i) situation where a worker is not allowed to move to

another job in the same trade, (ii) attempt by companies to fix prices or createmonopolies or reduce competition, which could affect free trade

- promissory estoppel: promise made by one person to another, so that the

second person relies on the promise and acts to his detriment, and the first personis stopped from denying the validity of the promise

(Dictionary of Law, Collin: 1993)* Many words and phrases have a peculiar meaning, completely different from

their ordinary meaning For example, consideration is a common ordinary word butin legal English, it means the price (but not necessarily money) paid by one person

in exchange for the other person promising to do something, an essential element inthe formation of a contract (Dictionary of Law, Collin: 1993: 53) Other examples

are personal property, construction, prefer, redemption, furnish, hold, etc.

b) Unusual and archaic words and phrases

* Many words and phrases in legal English have their origins in French or

Latin, as described above Some examples are proposal, effect, society, assurance,

insured, schedule, duly, signed, agreeing, policy, subject, rules, form, terms,conditions, date, entrance, accepted (French origins); basis, table, declaration,registered, stated, part (Latin origins).

* Unfamiliar pronouns like the same, the said, the aforementioned are used notto replace the nouns, but to supplement them, as in the said John Smith.

* Here-, there- and where- words and their derivatives (-at, -in, -after, -before,-with, -by, -above, -on, -upon, etc), which are uncommon in ordinary English, are

used primarily to avoid the repetition of names of things in the document or of the

document itself The parties to this contract shall then be reduced to the parties

hereto.

* Legal English makes great use of wordy and redundant phrases where the

use of a single word would be enough: at slow speed instead of slowly, subsequent

to instead of after, etc.

1.1.4.2.2 Syntactic features

a) Word and phrase levels

* Very often in legal English, two or three words of the same grammaticalcategory are strung together with ‘and’ or ‘or’ to convey a single legal concept; for

example null and void; fit and proper; perform and discharge; dispute, controversy

or claim; signed and delivered; I give, devise and bequeath the rest, residue andremainder; act or omission; wholly and exclusively; etc Words used in such

constructions at times mean exactly the same thing (null and void; will and

testament), and at other times do not (dispute, controversy or claim)

* Complex prepositional phrases (with the construction of P-N-P) are used in

place of simple prepositions to enhance precision and clarity: for the purpose of, in

respect of, in accordance with, etc.

* There is a tendency in legal English to imitate French grammatical structures

to arrange words in a distinctly strange order, as in the provisions for termination

hereinafter appearing or will at the cost of the borrower forthwith comply with thesame.

* Post-modifications in nominal groups are often extended to a rather

abnormal length: any installment then remaining unpaid, hereinbefore reserved and

agreed to be paid during the term.

b) Sentence level

* Lengthy and complex sentences

Sentences in legal language are often longer and more complex than in other stylesbecause they have more embeddings Here is an excerpt – one sentence - fromsection 9 of the Unfair Contract Terms Act 1977, UK: 9.(2) Where on a breach the

contract is nevertheless affirmed by a party entitled to treat it as repudiated, this does notof itself exclude the requirement of reasonableness in relation to any contract term

* Syntactic discontinuity

One reason for sentences in legal documents to be so lengthy and confusing is thefact that the subject is often separated from the verb, or the verb complexes are split.For example:

The Lord Chancellor may from time to time prescribe and publish forms ofcontracts and conditions of sale of land, and the forms so prescribed shall, subjectto any modification, or modification, or any stipulation or intention to the contrary,expressed in the correspondence, apply to contracts by correspondence, and may,but only by express reference thereto, be made to apply to any other cases forwhich the forms are made available.

(Section 46, Law of Property Act 1925, UK)

In the above example, modifications have split the following verb complexes: may

prescribe and publish; shall apply; may be made to apply

Legal English makes use of a considerably great amount of negation* Impersonal constructions

+ Avoidance of first and second personal pronouns

Sex offenders shall register with the police …

+ Passives

+ Nominalizations

No will shall be revoked by any presumption of an intention on the ground ofan alteration in circumstances.

* Use of modal verbs to establish rights and obligations

The major aim of statutory provisions is to establish rights and obligations withintheir scope of regulation They can either point out what the subjects are obliged todo, what they are not allowed to do, or what they can choose to do or not Forestablishing obliged and forbidden actions, the modal verbs “must” and “shall” are

used, with “shall” being preferred and not being used simply as a marker of futuretense as it often is For establishing permitted actions, the modal verbs “may” and“can” are used, with “may” being preferred.

A person guilty of a simple offence may be summarily convicted by 2 justices in petty sessions

An offence not otherwise designated is a simple offence

* Use of anaphoric and cataphoric reference

Anaphoric and cataphoric references are often used to refer the reader to anotherprovision either before or after the present one They may also refer to a provisionin another statute

598 Kidnapping; alternative verdict

Upon an indictment charging a person with an offence under section 332 theperson may be convicted of an offence under section 333

* Avoiding pronouns

One means of gaining precision is to repeat nouns (e.g., player), rather than using apronoun (e.g., he) after a person or thing is introduced Pronouns can sometimeshave ambiguous reference, so this technique can indeed enhance precision

* Cognitive structure of “if X, then Z shall be (do) Y”

In this underlying structure, “if X” is made up of conditional or concessiveadverbial clauses Examples of coordinated adverbials in this structure are: on theexpiration … Or on the previous death … / subject to any authorized endorsement… And to the production …

All these linguistic features of English legal language are well manifest in anexample from the General Agreement of Tariffs and Trade below:

GATT Article II (1)(b)

1 (b) The products described in Part I of the Schedule relating to any contracting party, which are the products of territories of other contracting parties, shall, on their importation into the territory to which the Schedule relates, and subject to the terms, conditions or qualifications set forth in that Schedule, be exempt from ordinary customs duties in excess of those set forth and provided for therein Suchproducts shall also be exempt from all other duties or charges of any kind imposedon or in connection with importation in excess of those imposed on the date of thisAgreement or those directly and mandatorily required to be imposed thereafter bylegislation in force in the importing territory on that date.

The core of this provision is only “The products described in Part I of theSchedule shall be exempt from ordinary customs duties Such products shall also beexempt from all other duties in excess of those imposed on the date of thisAgreement.”

1.2 TRANSLATION THEORY

Until now, there has been no agreed theory of translation among scholars.They all approach translation studies from different angles, and propose what theyconsider reasonable Yet, there are common points in their works: definition oftranslation, translation strategies, methods or principles, translation equivalence andtranslation assessment, all of which will be discussed hereafter in terms oftranslation definition, translation strategies/methods, and translation equivalenceand assessment.

1.2.1 Definition of translation

For most ordinary people, ‘to translate’ simply means to put somethingoriginally in one language into another language so that the reader/listener of thesecond language understands what the writer/speaker of the first language says Butfor theorists, things are seldom that simple

- In Approaches to Translation Newmark defines translation as “a craft consisting

in the attempt to replace a written message and/or statement in one language by thesame message and/or statement in another language” (1981)

Later, in A Textbook of Translation he says translation is “rendering the

meaning of a text into another language in the same way that the author intended thetext” (1988: 5)

- Translation means the “replacement of a text in one language (SL) by anequivalent in another language (TL)” (Cartford, 1965)

- Jokobson in his paper in 1959 offered a much more detailed definition oftranslation when he distinguished between three kinds:

+ Intralingual translation or rewording is an interpretation of verbal signs by

means of other signs of the same language.

+ Interlingual translation or translation proper is an interpretation of verbal

signs by means of some other language.

+ Intersemiotic translation or transmutation is an interpretation of verbal

signs by means of signs of nonverbal sign systems.

- House (1977: 29) after discussing the three aspects of meaning, proposed atentative definition of translation: “translation is the replacement of a text in thesource language by a semantically and pragmatically equivalent text in the targetlanguage” And these are only written texts.

No matter how diverse these definitions can be, they all share the basic ideathat translation does not deal with language as a system, but with language in useand that there should be some kind of equivalence between the two languages.

1.2.2 Translation methods and strategies

Generally speaking, the process of translation involves three steps:

- analyzing the ST to identify: the intention of the text, the intention of thetranslator, text styles, the readership, stylistic scales, attitude, setting, thequality of the writing, connotations and denotations, and the culturalaspect of the text;

- translating into TL: before starting the actual work of translating, thetranslator should (i) choose an appropriate approach or method, whichshall be discussed later, based on the analysis of the ST and his purposeof doing the translation, and (ii) work on possible translation strategies;- revising and/or reconstructing the translation.

Semantic translation Communicative translation(Newmark, 1988: 45)Newmark briefly explained these methods as:

- Word-for-word translation: The SL word-order is preserved and words

translated singly by their most common meaning, out of context

- Literal translation: The SL grammatical constructions are converted to

their nearest TL equivalents but the lexical words are translated singly, out ofcontext

- Faithful translation: attempts to reproduce the precise contextual meaning

of the original within the constraints of the TL grammatical structures

- Semantic translation: takes more account of the aesthetic value of the SL

text than does faithful translation, compromising on ‘meaning’ where appropriate so

that assonance, word-lay or repetition jars in the finished version Therefore, it ismore flexible, allows for the translator’s intuitive empathy with the original.

- Adaptation: In adaptation, the themes, characters, plots are preserved, and

the SL culture is converted to the TL culture and the text is rewritten.

- Free translation: is usually a paraphrase much longer than the original, a

so-called ‘intralingual translation’, often prolix and pretentious, and not translationat all.

- Idiomatic translation: reproduces the ‘message’ of the original but tends

to distort nuances of meaning by preferring colloquialisms and idioms where thesedo not exist in the original.

- Communicative translation: attempts to render the exact contextual

meaning of the original in such a way that both content and language are readilyacceptable and comprehensible to the readership.

(Newmark, 1988: 45-7)Of the above eight methods, only semantic and communicative translationare considered by Newmark to fulfill the two main aims of translation, namelyaccuracy and economy In other works on translation theory, these two methods arealso most frequently discussed.

In concluding the chapter on translation methods in A Textbook of

Translation, Newmark goes on to clarify five more translation methods:

(1) Service translation: is translation from one’s language of habitual use

into another language.

(2) Plain prose translation: this is translation of poems and poetic drama.

Usually stanzas become paragraphs, prose punctuation is introduced,original metaphors and SL culture retained, no sound-effects arereproduced.

(3) Information translation: This conveys all the information in a

non-literary text, sometimes rearranged in a more logical form, sometimespartially summarized, and not in the form of a paraphrase.

(4) Cognitive translation: This reproduces the information in a SL text

converting the SL grammar to its normal TL transpositions, normallyreducing any figurative to literal language.

(5) Academic translation: This reduces an original SL text to an ‘elegant’

idiomatic educated TL version which follows a literary register It ironsout the expressiveness of a writer with modish colloquialisms.

(Newmark, 1988: 52-3)The chosen translation method will help the selection and use of appropriatetranslation strategies, which are going to be discussed in the next part.

1.2.2.2 Translation strategies

After a translation method has been selected, the actual work of translatingcan now take place To achieve the goal of transferring the text from the SL into theTL, the translator will have to combine several of the following translationstrategies, elsewhere referred to as translation procedures.

1 Transcription (‘loan words’, adoption, transfer)

2 One-to-one translation

3 Through-translation (‘loan-translation’ or calque): is the literal translation of

common collocations, names of organizations, the components of compounds.

4 Lexical synonymy: this is translation by a close TL equivalent, used for a SL

word where there is no clear one-to-one equivalent

5 Componential analysis: this is preferred to synonymy particularly if the lexical

unit is a key-word or is important in the context.

6 Transposition (Vinay and Darbelnet) or shift (Catford): is the replacement of one

grammatical unit by another without changing the sense It is probably the mostcommon structural change undertaken by translators.

7 Modulation: is “a variation through a change of viewpoint, of perspective and

very often of category of thought” (Vinay and Darbelnet) This is considered thetouchstone of a good translator

8 Compensation: when loss of meaning or sound effect or metaphor in one part of

sentence is compensated in another part.

9 Cultural equivalence: is an approximate translation where a SL cultural word is

translated by a TL cultural word.

10 Translation label: that is an approximate equivalent, sometimes proposed as a

collocation in inverted commas, which may later be accepted.

11 Definition (descriptive equivalent): usually recast as a descriptive noun-phrase

or adjectival clause.

12 Paraphrase: an amplification or free rendering of the meaning of a sentence: the

translator’s last resort.

13 Expansion: grammatical expansion14 Contraction: grammatical reduction

15 Recasting sentences: splitting of one sentence in the SL into two or more

sentences in the TL or grouping several sentences in the SL into one sentence inthe TL.

16 Rearrangement, improvements (jargon, mistakes, misprints, idiolect, clumsy

writing, etc.) Only justified if (a) the SL text is concerned mainly with facts, or(b) the writing is defective.

17 Translation couplet: literal translation or translation label plus transcription

The choice of strategies for the translation of a text depends on the purposeof the translation and the componential analysis of the ST.

1.2.3 Translation equivalence and assessment

Of these two terms or concepts, translation equivalence is a central one intranslation theory Equivalence in translation can be broadly defined as therelationship between texts in two different languages, not between the languagesthemselves Equivalence is the main criterion in assessing the quality of atranslation A translation is generally said to be ‘good’ if it can maintain a certaindegree of equivalence to the ST.

In this part, some different views on equivalence will be discussed but thereshall be no separate discussion of translation assessment; instead, it is implied thatassessment of a translation is based on the respective kind of equivalence discussed.

1.2.3.1 Jakobson (1959): linguistic meaning and equivalence

Jakobson sees translation as three separate kinds: intralingual, interlingualand intersemiotic, with the second kind corresponding to others’ definition oftranslation.

In terms of linguistic meaning, Jakobson takes up Saussure’s view that thelinguistic sign, which composes of the signifier (the spoken and the written signal)and the signified (the concept signified), is arbitrary or unmotivated.

In terms of equivalence in meaning, he holds that ‘there is ordinarily no fullequivalence between code-units’ (1959/2000: 114) Therefore, it should not beexpected that the code-units in ST and TT are similar, even when the message is‘equivalent’ in ST and TT.

1.2.3.2 Nida (1964): formal equivalence and dynamic equivalence

- Formal equivalence: the message in the TL should be conveyed byelements that are as closely matching as possible with those in the SL.- Dynamic equivalence: the message should produce an effect on TL

receptors equivalent to that on ST receptors.

A translation, in Nida’s opinion, is successful if it can achieve equivalent responsein the two languages, which means dynamic equivalence is the goal of translation.To be ‘good’, a translation must meet these four basic requirements:

- making sense

- conveying the spirit and manner of the original- having a natural and easy form of expression- producing a similar response

1.2.3.3 Newmark (1981 & 1988): semantic translation and communicativetranslation

Although he shares similar ideas of translation equivalence with Nida,Newmark uses ‘semantic translation’ and ‘communicative translation’ for ‘formalequivalence’ and ‘dynamic equivalence’ respectively Communicative translationaims at producing “the same effect (or one as close as possible) on the readership ofthe translation as was obtained on the readership of the original” Semantictranslation, on the other hand, attempts to render the exact contextual meaning ofthe original.

1.2.3.4 Koller (1979): five types of equivalence

Koller describes five types of equivalence to answer the question as to whatexactly has to be equivalent These are presented in Munday (2001: 47) as follow:

- Denotative equivalence: is related to equivalence of the extralinguistic

content of a text.

- Connotative equivalence: is related to the lexical choices, especially

between near-synonyms.

- Text-normative equivalence: is related to text types, with different kinds

of texts behaving in different ways.

- Pragmatic equivalence (or communicative equivalence): is oriented

towards the receiver of the text or message This is Nida’s dynamicequivalence.

- Formal equivalence: is related to the form and aesthetics of the text; it

includes word plays and the individual stylistic features of the ST This isdifferent from Nida’s formal equivalence.

Koller also proposes a checklist whereby a text can be analyzed fortranslation:

- language function- content characteristics

- language-stylistic characteristics- formal-aesthetic characteristics- pragmatic characteristics

1.2.4 Translation of legal documents

Legal texts in general can be grouped into the following four categories: Nationally-enacted legal documents: the legal effect of these documents are

limited to the territory of their countries of origin To be effective, they haveto be involved in the country’s legal system Unless validated, any translationof the document purely serves to inform the addressee of the original one,and TT functions as a parallel text, a commentary to be used to access theoriginal.

 Documents drawn up in bi-lingual and/or bi-juridical countries, for exampleCanada: both texts in the two languages are of equal legal validity.

 “Hybrid texts”: these are texts “produced in a supranational multiculturaldiscourse community where there is no linguistically neutral ground”(Trosborg, 1997: 145-146 in Garzone) Every version of the documents inany of the official languages of the issuing international agency is supposedto have the same meaning as other versions, and after ratification, is of legalvalidity in its territory But when translated into another language rather thanthe official ones, the translation is purely informative These are treaties,protocols, conventions, etc.

 International documents regulating the relationships between privatesubjects in different nations These are not always authoritative and areinterpreted according to the law governing them.

This paper focuses on the first category of legal texts, i.e nationally-enactedlegal documents, which Sarcevic (1997:10 in Garzone) concludes as beingconnotative in nature.

Any legal document is embedded in a culture that determines the structure ofthe legal system of that document as well as the legal language of that system Thelanguage of the law of any legal system is typically formulaic, archaic, and at timesobscure Legal discourse highly reflects its culture And legal documents have aspecial pragmatic status.

Legal writing follows very strict stylistic conventions that may notcorrespond to conventions in a target culture There may be no direct structureequivalence between the SL and the TL Certain concepts may exist in the ST legalsystem but not in the TT system.

Most legal documents attempt to perform legal actions and to establishclearly defined rights and duties for certain groups of individuals involved indifferent social relations This can only be done through the validity conditions setforth by the cultures of the texts.

The reader of the translations of these authoritative legal documents is oftensomeone who is familiar with another legal system and its language And thesetranslations are only parallel texts without legal validity.

This distinct nature of legal documents poses two major issues concerningthe translation work The first question is which style and format should the TTfollow if there are profound linguistic differences between the SL and the TL Someprofessionals try to preserve the original style and format, even if this would hinderthe TT’s clarity Others stick to the TL style and format But this in certain caseswould bring about the drawback of affecting the reader’s impression on the‘technicality’ of the ST This is true of Vietnamese legal documents If followingthe style and format of English legal language, the English version of a Vietnamesestatute will appear to be more precise and more technical to a reader from theCommon Law system And because statutes are translated into other languages, themost popular being English, for reference only, the former approach should befavored.

The second issue is related to the actual work of translating The essence oftranslation lies in the preservation of the legal actions and the clearly defined rightsand duties set forth in the ST This can only be achieved when linguistic gaps can beovercome Terminology alone raises difficulties for a translator One concept and itsterm may exist in the SL only; there is no equivalent in the TL Similarly, a term inthe SL and the one in the TL often accorded to it are not identical in terms of

conceptual meaning For example, in the Vietnamese legal system, there exists the

crime of “xâm phạm tài sản xã hội chủ nghĩa” while in the British or American

system there is no such offence Any reader who is familiar with the British systemwill not understand the translation term the same way a Vietnamese does The terms

hội thẩm nhân dân in Vietnamese and juror in English are again not identical They

are both present in a trial but hội thẩm nhân dân has more power than a juror.According to the dictionary of law of the Hanoi University of Law, hội thẩm nhân

dân is appointed to hear a case within the court’s jurisdiction and “ngang quyền vớithẩm phán, độc lập và chỉ tuân theo pháp luật” while juror is a member of a jury

which is defined in the Dictionary of Law (Collin, 1993: 132) as “group of twelve

citizens who are sworn to decide whether someone is guilty or not guilty on thebasis of the evidence they hear in court” So on the word level, different methods

and strategies can be made use of regarding the rendering of concepts and terms.And it depends on the purpose of the TT as well as on the translator’s choice as toconvey the underlying idea or merely the words.

Besides lexical items, structural differences and means of creating textualcoherence and cohesion are another source of obstacles Linguistic structures thatare often found in the SL may have no direct equivalent structures in the TL Thetranslator therefore has to find TL structures with the same functions as those in theSL Textual means in the two languages do not always correspond to each other.

It is clear that legal translation differs from other kinds of translations in anumber of ways due to the special characteristics of this kind of documents Certaintranslation procedures and assessment should be adopted for legal translation.

In the following chapter, House’s model for translation quality assessmentwill be applied in assessing the English translation of the Vietnamese Law onInvestment of 2005.

CHAPTER 2.

APPLICATION OF HOUSE’S MODEL FOR TRANSLATION QUALITY ASSESSMENT2.1 Presentation of the model

Julian House is a German linguist She first proposed her model for

translation quality assessment in 1977 in A Model for Translation Quality

Assessment The original model attracted many criticisms which are said to have

been tackled in her revised model in 1997 – Translation Quality Assessment: A

Model Revisited.

2.1.1 An overview of the model

Not until the 1970s did the translation science begin to deal with translationcriticism, which in House’s words is translation quality assessment House wasamong the theorists who tried to provide a scientifically based framework fortranslation quality assessment For her, translation is “the replacement of a text inthe source language by a semantically and pragmatically equivalent text in thetarget language” (1997: 31) To be equivalent, the TT has to preserve the meaningof the ST There are three aspects of this meaning: a semantic aspect, a pragmaticaspect, and a textual aspect House considers equivalence to be the fundamentalcriterion of translation quality and argues that it is functional, pragmaticequivalence that should be achieved for ‘meaning’ to be preserved across twodifferent languages By pointing out that ‘any two linguistic items in two differentlanguages are multiply ambiguous’ and that ‘languages cut up reality in differentways’, House stresses that functional, pragmatic equivalence “is the type ofequivalence which is most appropriate for describing relations between original andtranslation” But in the model, poetic-aesthetic texts are excluded.

As written in House’s report on Meta (2001: 247), the assessment model is“based on Hallidayan systemic-functional theory, but also draws eclectically onPrague school ideas, speech act theory, pragmatics, discourse analysis and corpus-based distinctions between spoken and written language” And after being revised,House’s model still aims at providing for ‘the analysis and comparison of anoriginal and its translation on three different levels: the levels of Language/Text,Register (Field, Mode and Tenor), and Genre’ (House, 2001: 247), or for thediscovery of ‘mismatches’ between the TT and the ST on the same three levels.

2.1.2 Operation of the model

A key concept in the operation of House’s model is the context of situationor ‘situational dimensions’ The author states that the function of a text is “theapplication or use which the text has in the particular context of situation” (p.36).There are two components of a text’s function: the ideational and the interpersonalcomponents And functions of texts are different from functions of language Atranslation is functionally equivalent to its ST if it does not only match its ST infunction, but also employs equivalent situational-dimensional means to achieve thatfunction.

The ‘situational dimensions’ can be collapsed into two sections: Dimensionsof Language User and Dimensions of Language Use.

A Dimensions of Language User1 Geographical Origin2 Social Class

3 Time

B Dimensions of Language Use1 Medium: simple/complex2 Participation: simple/complex3 Social Role Relationship4 Social Attitude

5 Province

Each of these situational dimensions is realized through syntactic, lexical andtextual means Textual means refers to:

1 theme-dynamic: thematic structure and cohesion;

2 clausal linkage: additive (and, in addition), adversative (but,

however), alternative, causal, explanatory, illative relations, etc.;

3 iconic linkage: parallelism of structures.

From House’s assumption that in order to make qualitative statements abouta TT, the TT’s textual profile must be compared with the ST’s textual profile, hermodel for translation quality assessment operates as follows:

1 ST is analyzed in details to produce a profile of the ST register with specific linguistic correlating to the situational dimensions (syntactic,lexical, and textual means).

text-2 A description of the ST genre realized by the register is added.

3 A statement of function of the ST is made, including the ideational andinterpersonal component of that function.

4 A similar profile and statement of function is made of the TT.

5 The TT profile is compared to the ST profile (using the schema below)and a statement of ‘mismatches’ is produced, categorized according togenre and to the situational dimensions of register and genre Thesedimensional errors are distinguished from denotative mismatches ortarget system errors.

6 A ‘statement of quality’ is made of the translation.

7 Finally, the translation is categorized into either overt translation orcovert translation.

(Munday, 2001: 93)

The schema for analyzing and comparing original and translation texts(House, 1997: 108):

Register in House’s model resembles Halliday’s register analysis but hassome additions Field refers to subject matter or topic, social action or social activityand covers the specificity of lexical items Tenor refers to the nature of theparticipants and the relationship between them, including the ‘text producer’stemporal, geographical and social provenance as well as his intellectual, emotionalor affective stance (his “personal viewpoint”) […] ‘social attitude’, i.e differentstyles (formal, consultative and informal) Mode refers to both the channel – spokenor written, and the degree of participation between writer and reader (House, 2001:248).

subject matter and social action

participant relationship+ author’s provenance and stance

+ social role relationship+ social attitude

+ medium (simple/complex)+ participation (simple/complex)

Language/textIndividual textual function

(generic purpose)

But register analysis alone is not sufficient for a statement of text function tobe made The analysis of the text, may it be ST or TT, has to incorporate Genre –which is ‘the conventional text type’ associated with ‘a specific communicativefunction’ Genre is conditioned by the socio-cultural environment and itselfdetermines other elements in the systemic framework As House says, Genre‘connects texts with the “macro-context” of the linguistic and cultural community inwhich texts are embedded” (2001: 248).

There are criticisms that House’s analytical schema is over-complicated.There are even more criticisms regarding House’s distinction of two types oftranslation: overt translation and covert translation An overt translation is “one inwhich the addressees of the translation text are quite ‘overtly’ not being directlyaddressed” (1997: 66) A covert translation is “a translation which enjoys the statusof an original source text in the target culture” (1997:69) In overt translation,equivalence is necessary at the level of Language/Text and Register, as well asGenre In covert translation, equivalence is desirable at the level of Genre and theindividual text function But in covert translation, the translator has to apply what iscalled a “cultural filter” to modify cultural elements and to give receivers theimpression that the TT is an original The translator assessor also has to make use ofthis ‘cultural filter’ in judging the quality of a covert translation.

2.2 Application of the model

The source text examined in this study is chapter II of the Law on Investmentof Vietnam, promulgated on November, 29th 2005 The target text is the translationpublished by the Transportation Publishing House.

As stipulated in Article 1, this Law

“regulates investment activities for business purposes; the rights andobligations of investors; the guarantee of lawful rights and interests ofinvestors; encouragement of investment and investment incentives; Stateadministration of investment activities in Vietnam and offshore investmentfrom Vietnam.”