An overview of translation theories and its implications for the translation of english vs vietnamese legal texts

MINISTRY OF EDUCATION AND TRAINING HO CHI MINH CITY UNIVERSITY OF LAW GRADUATION THESIS B.A DEGREE IN ENGLISH Major: Legal English AN OVERVIEW OF TRANSLATION THEORIES AND ITS IMPLICATIONS FOR THE TRANSLATION OF ENGLISH VS VIETNAMESE LEGAL TEXTS Supervisor : PHAM THI THUY DUNG, MA Student : NGUYEN HONG PHUC Student ID : 1552202010046 Class : LE40B Ho Chi Minh City, 2019 HO CHI MINH CITY UNIVERSITY OF LAW Socialist Republic of Vietnam FACULTY OF LEGAL LANGUAGES Independence – Freedom - Happiness Major: Legal English COMMENTS OF SUPERVISOR Student: NGUYEN HONG PHUC Student ID: 1552202010046 Class: LE40B Thesis title: AN OVERVIEW OF TRANSLATION THEORIES AND ITS IMPLICATIONS FOR THE TRANSLATION OF ENGLISH VS VIETNAMESE LEGAL TEXTS Thesis objectives: Submission date of thesis: Supervisor: Comments of Supervisor: Score of thesis evaluated by Supervisor: Contents and objectives of thesis were passed through the Supervisor and Department Date … Month … Year 2019 SUPERVISOR’S SIGNATURE ACKNOWLEDGEMENT First and foremost, I would like to express my sincere gratitude to my research supervisor Ms Pham Thi Thuy Dung for the continuous support, for her patience, motivation and enthusiasm Without her assistance and dedicated involvement in every step throughout these past three months, this paper would have never been accomplished I am hugely indebted to Mr Nguyen Thai Son (lecturer in Department of Legal English) for spending his time answering all my questions, for being ever so kind to show interest in my research and for giving his precious and kind advices regarding to the topic of my study I would like to express my special thanks to my head teacher Ms Pham Thi Phuong Anh (lecturer in Department of Legal English) for her useful advices and inspirations from the very first days of my university life Besides, allow me to extend my gratitude to all lecturers whom I have had the opportunity to collaborate with during my four years in this University In addition, I would also like to thank Ms Ngo Kim Thanh (my colleague) for her immense interest in my topic, for providing me with materials and books that I could not possibly have discovered on my own, for her kind words and suggestions Getting through my dissertation required more than academic support, and I have many, many people to thank for listening to and, at times, supporting me spiritually during this difficult time I want to express my gratitude and appreciation for their friendship during the time I spent at the Ho Chi Minh City University of Law Most importantly, none of this could have happened without my family I take this opportunity to express gratitude to my parents and my sister for the unceasing encouragement, support and attention throughout my years of study and through the process of researching and writing this thesis This dissertation stands as a testament to their unconditional love and encouragement Ho Chi Minh City, 28th May 2019 i LIST OF ABBREVIATIONS SL : Source Language TL : Target Language ST : Source Text TT : Target Text LSP : Language for Special Purpose CIDE : Cambridge International Dictionary of English 1997 BLD : Black‟s Law Dictionary 1999 ii LIST OF TABLES Table Functional characteristics of text types to translation methods (Reiss, 1977) 21 Table Differences between ordinary meaning and legal meaning of some terminologies 31 Table Popular Latin terminologies definition in English and Vietnamese .33 Table Landscape of translation methods 35 Table Translation theories‟ implications for the legal translation 358 iii LIST OF FIGURES Figure Conceptual Framework of the study 17 Figure Overview of translation theories 19 iv TABLE OF CONTENTS ACKNOWLEDGEMENT LIST OF ABBREVIATIONS LIST OF TABLES LIST OF FIGURES CHAPTER 1: INTRODUCTION 1.1 Background to the study 1.2 Aim of the study 1.3 Research questions 1.4 Significance of the study 1.5 Scopes of the research 1.6 Outline of the thesis CHAPTER 2: LITERATURE REVIEW 2.1 Definition of the key terms .10 2.1.1 Translation – Translation theories 10 2.1.1.1 Translation 10 2.1.1.2 Translation theories 11 2.1.2 Legal translation 11 2.1.3 Legal texts 12 2.2 Previous studies 13 CHAPTER 3: METHODOLOGY 3.1 Research questions 16 3.2 Design and context of the study .16 3.3 Research instruments 16 3.4 Conceptual framework 17 CHAPTER 4: RESULTS AND DISCUSSION 4.1 Overview of translation theories 19 4.1.1 Philological Theories 19 4.1.2 Linguistic Theories 20 4.1.3 Functional Theories 20 4.1.3.1 Text-type Theory 20 4.1.3.2 Translational Action Theory 22 4.1.3.3 Skopos Theory 22 4.1.4 Sociolinguistic Theories 23 4.1.5 Relevance Theory 23 4.2 The nature of legal language 24 v 4.2.1 The normative nature of legal language 24 4.2.2 The performative nature of legal language 24 4.2.3 The technical nature of legal language 25 4.2.4 The indeterminate nature of legal language 25 4.3 Characteristics of the legal language 26 4.3.1 Lexicon 27 4.3.2 Syntax 27 4.3.3 Pragmatics 28 4.3.4 Style 28 4.4 Difficulties of legal translation 29 4.4.1 Different legal systems 29 4.4.2 Language problems 29 4.4.2.1 Terminology 29 4.4.2.2 Ambiguity 34 4.4.2.3 Long and complex sentences 34 4.5 Translation theories’ implications for dealing with the difficulties of legal translation 35 CHAPTER 5: CONCLUSION 5.1 Conclusion 39 5.2 Limitations of the study 39 5.3 Recommendation for further study 39 REFERENCES ERROR! BOOKMARK NOT DEFINED vi CHAPTER 1: INTRODUCTION 1.1 Background to the study It is clear that English has become a vital and mandatory communication language in Vietnam since the opening of its doors to the world in 1986 Many English-speaking foreigners from across Asia, Australia, America and Europe started coming to invest in Vietnam, as evidenced by the fact that international conventions, international legal principles and contracts are almost promulgated in English This has motivated the people of Vietnam to learn English to facilitate efficient and effective communication among their counterparts Along with the development of the demands of learning English, the needs 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 aimed to organizations and citizens of that country but also to foreign organizations and individuals This means that the translation of legal documents from the mother tongue of many countries into common languages, especially in English and vice versa, not only has a crucial role in our life but also is essential for organizations and individuals can easily learn, research as well as analyze legal texts People believe that the legal system of one country is different from the other Law and order of a country are defined and personalized according to the cultural attitudes of the citizens Legal terminologies are vast and complex, and certain terms which exist in one language may not be present in another language; so in that cases, legal translation helps by describing the meaning and the procedure of the legal term, without changing the original meaning of that legal document Throughout the time, there are a lot of scholars around the world trying to investigate and analyze translation theories in order to find the best way to deal with the issues of the legal translation Therefore, it will raise a question “Which theory is the most appropriate method to produce an accurate translation, especially in legal field?” For the reason above, I choose the topic “An overview of translation theories and its implications for the translation of English vs Vietnamese legal texts” as the topic of my graduation thesis 1.2 Aim of the study This study is conducted in order to (a) clearly summarize the major strands of translation theories, (b) outline the characteristics of legal translation and its nature as well as the difficulties of legal translation, and (c) suggest which translation theories should be applied to translate English – Vietnamese legal documents 1.3 Research questions This study is done in order to give answers to the following research questions: From identifying (i) what are the translation theories to (ii) finding the main characteristics of legal translation as well as (iii) determining the difficulties when translating legal texts, by doing these, (iv) proposing which mentioned translation theories should be applied to deal with the difficulties of the translation of English – Vietnamese legal texts 1.4 Significance of the study By the result of this study the researcher hopes to establish an understanding not only on the translation theories but also the legal translation In addition, it will highlight what measures based on translation theories are appropriate to solve the difficulties when translating legal documents The findings which this thesis will reveal, may benefit certain groups and the benefits they may be able to gain are as follow: (a) students who have major in language and law – this group may use this study as a reference to upgrade their knowledge during the learning process; (b) future researchers – the finding of this study will be serving as a good source of accurate and useful information for them to conduct new researches or to test the validity of other related findings 1.5 Scopes of the research Different translation theories are used in different translation purposes This research will present the key issues of translation theories and legal translation as well as analyses the application of functional equivalence theory and functional approaches to legal translation Because of the limited time and access to resources in legal a fear in another is sufficient Also, a “battery” does not require an actual beating, the use of any degree of force against the body would suffice, for example, spitting on a person, or kissing without consent (A H Loewy, 1987, Criminal Law in a Nutshell, 2d ed., quoted in Black‟s Law Dictionary, 1999: 109) Moreover, more examples of the meanings of terms have been established through the legal process, with little regard to the everyday meaning of the term, such as “purchase”, “domicile” or “adultery” (Charrow et al 1982: 185) The following Table shows the differences between ordinary meaning and legal meaning of some terms: Table Differences between ordinary meaning and legal meaning of some terminologies Ordinary meaning Legal meaning A sudden violent attack on (criminal & tort law) (someone), esp a sexual The threat or use of force one (Cambridge on another that causes that International Dictionary of person to have a reasonable English, 1997 – CIDE) apprehension immediate Assault of an battery by means of an act amounting to an attempt or threat to commit a battery (Black‟s Law Dictionary 1999 – BLD) To batter – to hit and (criminal law) The behave violently towards application of force to Battery (a person, esp a woman or another, resulting child) repeatedly over a harmful or in offensive long period of time (CIDE) contact (torts) An intentional and offensive touching of another without justification (BLD) 31 lawful Thing(s) you have The act or an instance of bought buying An/The act of buying The acquisition of real Purchase property by one‟s own or (CIDE) another‟s act(as by will or gift) rather that by descent or inheritance (BLD) The place where a person The place at which a lives (CIDE) person is physically present and that the person regards as person‟s home; true, a fixed, principal, and permanent home, to which that person Domicile intends to remain return even currently and though residing elsewhere The residence of a person or corporation for legal purposes (BLD) Sex between a married Voluntary man or woman and intercourse someone who is not their married Adultery sexual wife or husband (CIDE) person between a person other and than a the offender‟s spouse (BLD) Note: different definitions in different states 32 American According to Al-Nakhalah (2013: 74), Latinism (Latin-originated terms) is another noticeable feature of the English legal lexicon, which leaves legal translators in trouble sometimes A large amount of Latin terms are used quite frequently in legal documents The Table below introduces some popular Latin terms that could be easily found in certain legal texts: Table Popular Latin terminologies definition in English and Vietnamese Term or phrase Bona fide (adj) Definition Vietnamese meaning „With good faith' Ngay tình, thiện ý, trung thực „In fact‟ – Existing Thực tế/ Trên phương diện thực De facto (adj; adv) as a matter of fact tế rather than of right „Of law‟ – As a Luật pháp/ Trên phương diện De jure (adj; adv) matter of legal right; luật pháp by right „Among other Trong số khác/ người things/ Inter alia (adv) among khác others‟ – The phrase is used to make it clear that a list is not exhaustive „A guilty mind‟ – Ý chí phạm tội (Một The state of mind yêu cầu tội phạm that the prosecution phải thực hành vi phạm must Mens rea prove a tội, phải có ý chí phạm tội, hành defendant to have vi) had at the time of committing a crime in order to secure a conviction 33 Alcaraz and Hughes (2002: 5) link the existence of Latin terms to a number of reasons, two of which are that English law was influenced by Latin when the Roman church stretched its power over Europe at that time and that Latin language was broadly used throughout Europe as a language of learning and literature for centuries 4.4.2.2 Ambiguity The ambiguous feature of legal language is not considered a defect but as an inherent characteristic to be preserved in translation (Jolicoeur 2000) According to Harvey (2002: 182), legal translators should play a more proactive role, rather than purely a “text producer” to decide if deliberate ambiguity should be retained For example, assume that a homeowner enters into a contract with an electrician to conduct work throughout the home The contract indicates that the services must be rendered in June The homeowner is interpreting the language to say that the services must be rendered and complete by June 30; however, the electrician might be interpreting the language to say that he must begin the work in June but that doesn‟t necessarily mean that he needs to have the work complete by June 30 4.4.2.3 Long and complex sentences Of all the challenges a translator may encounter in the translation of English legal texts, perhaps the greatest one lies in the rendition of syntactically complex sentences into the target language The following sentence is a good example of this: Restricted party means a person that is: (i) listed on, or owned or controlled by a person listed on, or acting on behalf of a person listed on, any Sanctions List; (ii) located in, incorporated under the laws of, or owned or (directly or indirectly) controlled by, or acting on behalf of, a person located in or organized under the laws of a country or territory that is the target of country-wide or territory-wide Sanctions; or (iii) otherwise a target of Sanctions (target of Sanctions signifying a person with whom a US person or other national of a Sanctions Authority would be prohibited or restricted by law from engaging in trade, business or other activities) (Quoted from a Loan Agreement) This illustrated sentence is truly a very long one (115 words) with a high level of embedding This is completely normal to legal instruments where lengthy sentences 34 are frequently used and the longer a sentence is, the higher the embedding level is, rendering it difficult to be interpreted accurately if close reading is not properly done 4.5 Translation theories’ implications for dealing with the difficulties of legal translation Legal translation, like any other type of translation work, is the replacement of the source language with the target language However, legal translation is different because law is culture-dependent It uses content and terms within the legal system prevailing in the country where the source document originated As the world becomes more globalized, the need for legal translation escalates Aside from the language barriers, the differences in legal systems make legal translation very complex It is unquestionable that the legal translation should rely on some kind of theoretical foundation In order to overcome the difficulties which have mentioned above, some suggestions of which translation theories should be applied will be proposed It is possible to have different co-existing theories each directed toward the same object of study, but each with a different approach and focus Translation theories have an important role not only in determining the suitable translation methods but also providing a background for problem solving, especially in legal field From my perspective, the most common translation theories that can help the translators or lawyers to find the best solution for dealing with the difficulties when translating legal texts are Functional Theories, Linguistic Theories as well as Sociolinguistic Theories For each theory there will be appropriate translation methods applied, these methods are based on the nature and characteristics of each theory To be more specific, according to Newmark (1981/ 1988), he provides the landscape of translation methods The Table below will present those methods: Table Landscape of translation methods Translation methods Content This method can produce the precise Faithful translation contextual meaning of the original within the constraints of the TL grammatical structures Example: 35 - English version: In the case of unilateral termination of this Agreement without fault of Party B, Party A shall lose the deposit - Vietnamese version: Trong trường hợp Bên A đơn phương chấm dứt Hợp đồng không lỗi bên B, Bên A bị khoản tiền đặt cọc This Semantic translation method differs from „faithful translation‟ only in as far as it must take more account of the aesthetic value of the SL text It attempts to render the exact contextual Communicative translation meaning of the original in such a way that both content and language are readily acceptable and comprehensible to the readership (1981/ 1988: 45-47) Example: - English version: This contract is made into 04 copies; each party keeps 02 copies which has the same legitimacy This contract comes into effect from the date of signing - Vietnamese version: Hợp đồng lập thành 04 bản, bên giữ 02 có giá trị pháp lý có hiệu lực kể từ ngày ký hợp đồng However when using these theories to find appropriate translation methods, we cannot just focus only on one theory The combination of translation theories is a more effective way to give us hints or restricted rules for translating legal texts These theories relate closely to the issues translators usually faced with, such issues arise from the differences in legal systems and language problems (legal terminology, ambiguity, long and complex sentences) As Susan Šarčević stated in her book „New Approach to Legal Translation‟, “Govert van Ginsbergen compares the translator‟s search for equivalents with the legal process of qualification In cases with a foreign element, the judge must determine which law is to be applied in respect of certain terms, parts of instruments, or the entire instrument This process requires considerable comparative law skills Comparative 36 law does not consist of a body of rules but of methods for comparing concepts and institutions of different legal systems and even entire legal systems One of the methods of comparison that has found widespread support is the functional approach.” Like identifying the concept in the foreign legal system, when searching for equivalents in the target legal systems, translators should approach the matter if they were solving a legal problem Similar to judge, translator should identify the nature of the issue at hand and determine how that issue is dealt with in the target legal system In other words, they must have the awareness of the concept or institution in the target legal system that has the same function as the concept concerned in the source legal system Šarčević (Šarčević 1988: 964; 1989: 278-279) defines the legal functional equivalent as a term in the target legal system designating a concept or institution, the function of which is the same as that in the source legal system Weston describes the value of functional equivalence in legal translation by suggesting that the technique of using a functional equivalent may be regarded as the ideal method of translation (Weston 1991:23) Like other areas of translation, the translation of legal texts is receiver oriented The skopos theory and the sociolinguistic theories have modernized translation theory by offering an alternative to traditional translation In traditional translation, where the translator is expected to reconstruct the form and the substance of the source text in the target language, the function of the target text is always the same as that of the source text Apart from tradition, the functional/ receiver-oriented approach assumes that the same text can be translated in different ways depending on the communicative function of the target text As for Relevance Theory, this theory can be used together with the other theories to deal with the pragmatic problems As mentioned before, the sentences in legal texts are usually long and complex In fact, such sentences often make the translators as well as the lay person be confused when reading legal documents In conclusion, by understanding translation theories and their characteristics, as well as analyzing difficulties in legal translation, the researcher has drawn some conclusions which briefly present in this Table below: 37 Table Translation theories’ implications for the legal translation Translation Difficulties theories Approaches Results Find a phrase of the Functional Theories System and country same specific legal lexical terminology or meaning, expansion, descriptive The efficient equivalence paraphrasing Communicative Relevance Theory & Sociolinguistic Theories - Ambiguity Content & language of method: language Concentrate on - Long and complex the message and the sentences main force of the are acceptable, comprehensible to the readerships text Linguistic Theories Differences of legal systems (structures, semantics) Faithful method: Precise Thoroughly understand contextual meaning tied to the of grammatical grammatical structures structures target texts 38 of the CHAPTER 5: CONCLUSION 5.1 Conclusion Legal translation is a challenging and complex process Legal translators face numerous factors that influence their ability to translate certain terms Besides the obvious linguistic side of legal translation, legal translators are faced with challenges, such as cultural and social norms and traditions within legal systems of the country where the text originated, as well as the country for which the translation is prepared Furthermore, even if the legal translators are skilled linguists, and are familiar with the nuances of the two aforementioned legal systems, they will come across terms that are difficult to translate In such instances, the translators must employ one of a slew of translation techniques which are based on the translation theories Consequently, this thesis is conducted to provide readers the overview of some translation theories as well as the methods based on those theories to solve the difficult problems often encountered in the process of translating English - Vietnamese legal documents 5.2 Limitations of the study Limitations are matters and occurrences that arise in a thesis which are out of the researcher‟s control In any kind of research to conduct, some limitations may exist The thesis presented here is limited by the access to literature Despite the fact that there are lots of translation theories discovered by many scholars throughout the world, this study only focused on some of those theories because of the limited time and access to resources The same reasons could be found in choosing the specific type of legal texts to investigate, in this case is contracts or documents related to contracts In addition, the findings in this thesis are typically only relevant to the specific translation theories as well as some common legal translation issues within the capacity of the researcher 5.3 Recommendation for further study There are a number of gaps in our knowledge around the translation theories and legal translation in research that follow from these findings and would benefit for further researchers and further test the results I have developed here Further research 39 may (a) discuss in detail whether the others translation theories which have not yet explored in this thesis can be applied to deal with the issues of legal translation; 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LE40B Thesis title: AN OVERVIEW OF TRANSLATION THEORIES AND ITS IMPLICATIONS FOR THE TRANSLATION OF ENGLISH VS VIETNAMESE LEGAL TEXTS Thesis objectives: Submission date of thesis:... study translation theories as well as legal translation, the combination between the translation theories and legal translation has received little attention On the one hand, there are many books