Copyright Warning
Use of this thesisdissertationproject is for the purpose of private study or scholarly research only Users must comply with the Copyright Ordinance Anyone who consults this thesisdissertationproject is understood to recognise that its copyright rests with its author and that no part of it may be reproduced without the authorrsquos prior written consent
CITY UNIVERSITY OF HONG KONG 香港城市大學
Cultural Transfer in Legal Translation A Case Study of the Translation of the
Common Law into Chinese in Hong Kong
法律翻譯中的文化轉移 香港普通法中譯個案研究
Submitted to Department of Chinese Translation and Linguistics
中文翻譯及語言學系 in Partial Fulfillment of the Requirements
for the Degree of Doctor of Philosophy 哲學博士學位
by
Wang Ling 王淩
April 2008 二零零八年四月
ii
Cultural Transfer in Legal Translation
A Case Study of the Translation of the Common Law into Chinese in Hong Kong
法律翻譯中的文化轉移 香港普通法中譯個案研究
Abstract
The term ldquocultural transferrdquo has featured prominently in contemporary
translation theory Yet perplexing as it may seem the term can and has in fact been
used to refer to two diametrically opposite concepts of translation On the one hand
ldquotranslation as cultural transferrdquo can be understood as ldquotranslation as an act of
cross-cultural communication effected by matching the cultural rather than the
linguistic elements of the two languages involvedrdquo On the other hand ldquotranslation as
cultural transferrdquo can also be understood as ldquotranslation as a process of importing or
even transplanting the culture of the source language into the culture of the target
languagerdquo Understood in the former sense translation is essentially an act of
domestication requiring no or little linguistic or conceptual adjustment of the target
language whereas understood in the latter sense translation involves both linguistic
and conceptual adjustment to accommodate the imported culture thus always
resulting in the foreignization of the target language
This study examines these two senses of cultural transfer in the context of law
translation Using the translation of the common law into Chinese in Hong Kong as a
case study it investigates which of the two senses is relevant to law translation which
aspect or aspects of the culture of the common law has or have been transferred how
such transfer has been effected and what form it has taken Through a critical analysis
iii
of the problems involved in the translating process in question it is hoped that this
study will shed some light on the question of cultural transfer and more importantly
on the nature of legal translation
This thesis is divided into two major parts Part I consists of four chapters that
provide the theoretical framework and historical background for the study Chapter 1
sets out the scope and methodology of this study by way of a brief critical account of
studies in translation theory and legal translation Chapter 2 traces the evolution of the
concept of cultural transfer in translation theory clarifies the opposed senses in which
is understood by exploring the dichotomy of domestication and foreignization and
argues why legal translation in the context of Hong Kong cannot be a case of
domestication Chapter 3 investigates the various senses of legal culture and
highlights the essential features of the legal culture of the common law Chapter 4
gives a brief historical account of the importation of foreign laws into China since the
Late Qing period (晚清) as a typical case of transfer of legal cultures examining what
such transfer involved in the process Part II is the case study of the translation of the
common law into Chinese in Hong Kong Chapter 5 examines the translatability of
the common law and analyzes the specific features of the common law language from
the aspects of its terminology legislation and case law Chapter 6 begins with a
critical analysis the problems relating to law translation in general and translating the
common law into Chinese in particular It then sets out the theoretical framework for
effecting cultural transfer It examines in detail the nature of cultural transfer in law
translation with special reference to the translation of common law terminology
Chapter 7 summarizes the study and makes some concluding remarks on its
significance for translation studies as well as its potential for future research
iv
Acknowledgments
Research is a journey of exploration Writing this dissertation has been a
challenging intellectual journey accompanied by moments of frustration
disorientation and even self-doubt One person my supervisor Dr Sin King-kui has
guided me through the twists and turns of this journey But for his patience mentoring
and encouragement I could not have completed this dissertation nor could I have
appreciated both the rigours and the joys of true scholarship He has my deepest
gratitude
I must also thank Dr Zhu Chun-shen and Dr Cheng Po-suen of my Qualifying
Panel for their valuable comments on the draft of the dissertation as well as their
unfailing support throughout my candidacy I should like too to thank the friendly
staff of the General Office of the Department who have given me enormous clerical
support in the course of my research
My thanks also go to my colleagues in the Department of Translation The
Chinese University of Hong Kong for their kind concern during the progress of my
research and their warm words of encouragement
I would like to extend a special note of thanks to my teachers in the Department
of Foreign Languages and Literature Fudan University for introducing me to the
beauties and intricacies of translation In particular I would like to thank Prof Huang
Yong-min Prof Lu Gu-sun Prof Xiong Xue-liang and Prof He Gang-qiang for
helping and encouraging me in my pursuit of further translation studies
v
I am also grateful to my fellow students and dear friends Kiki Baby Ace Sarah
Samantha Joyce Beatrice Xiao Hu Zhang Wan-min Wu Qing Shen Yuan Jiang
Qin Wen Stella Edison April Wu Xiao Sting and Lois for sharing the pains and
joys of my study
Finally I owe more than I can say to my husband Alex my sister Ciecely and
other family members for their love and unfailing support I thank my parents from
the bottom of my heart for their faith in me and for the love and support that enabled
me to embark on an academic career It is to them both that I dedicate this humble
piece of work
vi
TABLE OF CONTENTS
Title Page i
Abstract ii
Acknowledgments iv
PART I
Theoretical Framework and Historical Background
Chapter 1 Introduction 1
11 Translation Theory From Interlingual Translation to Intercultural
Translation 1
12 The Emergence of Cultural Transfer in Translation Theory 4
13 Legal Translation Theory In Search of Goal and Strategy 8
14 Rationale for the Study 12
Chapter 2 Translation as Cultural Transfer 14
21 Clarification of the Notion of Cultural Transfer 14
211 Cultural Transfer vs Transcoding 14
212 Vermeerrsquos View of Translation as Cross-cultural Transfer 24
213 Snell-Hornbyrsquos View of Translation as Cultural Transfer 28
214 Domestication vs Foreignization 35
vii
22 Legal Translation as Cultural Transfer 40
221 Legal Transplant and Legal Translation 40
222Translating the Common Law into Chinese as Cultural Transfer 46
223 Metalinguistic Devices and Cultural Transfer in Legal Translation 51
Chapter 3 The Concept of Legal Culture in Legal Translation 57
31 Previous Studies of Legal Culture 57
311 Law and Culture 57
312 Legal Culture as Conceptions of Law 62
313 Legal Culture as Both Conceptions and Practices of Law 66
32 Clarification of the Concept of Legal Culture 69
33 The Legal Culture of the Common Law 73
34 The Legal Culture of Traditional and Modern Chinese Law 77
Chapter 4 The Transfer of Legal Culture 89
41 Legal Transplant and Transfer of Legal Culture 89
411 Introduction 89
412 Legal Transplant Legal Imposition and Legal Translation 92
42 Transfer of the Legal Culture of Foreign Laws in China 98
421 Transplant of Foreign Laws since Late Qing Dynasty in China 98
422 Transfer of the Legal Culture of Foreign Laws in China 103
viii
PART II
Case Study of the Translation of the Common Law
into Chinese in Hong Kong
Chapter 5 The Language of the Common Law 106
51 The Translatability of the Common Law 106
52 Legal Terminology and Legal Concepts 112
53 The Language of the Legislative Texts and Bilingual Legislation 120
54 Case Law Languagemdashthe Language of Judges 133
Chapter 6 Cultural Transfer in Translating the Common Law into Chinese
61 Transfer of the Legal Culture of the Common Law 142
611 Problems in Translating the Common Law into Chinese 142
612 Legal Translation as Cultural TransfermdashTwo Levels of Transfer 152
62 Cultural Transfer in Translating the Common Law into Chinese
-- Analysis of Selected Translations 159
Chapter 7 Concluding Remarks 189
Bibliography 194
Chapter 1
Introduction
11 Translation Theory From Interlingual Translation to Intercultural
Translation
Traditionally regarded as a sub-field of linguistics translation was for a long
time treated as an important means of interlingual communication As Jakobson (1959)
put it ldquotranslation properrdquo was the transposition of a text from one language to
another ldquointerlingual translationrdquo as he called it ldquoinvolves two equivalent messages
in two different codesrdquo However he conceded that there was no full equivalence
between code units (1959 p 233) Jakobsonrsquos view was shared by theorists like
Catford and Nida who emphasized transference of meaning across languages and the
resultant linguistic equivalence Fidelity to the original text was considered the most
important principle governing translation and the search for best equivalence became
its primary goal Translation studies in this period stressed the textual elements
Catford for instance emphasized the correspondence of lexicon and grammar (1965)
Nida and Taber classified ldquoformal correspondencerdquo and ldquodynamic equivalence as two
major types of equivalence ldquoFormal correspondencerdquo is concerned with the message
itself and ldquodynamic equivalencerdquo with the effect (1964 1982) They acknowledged
that there were not always formal equivalents between language pairs Focusing on
the language function and relating linguistic features to the context of both the source
and target text House (1977) set out his notions of semantic equivalence and
pragmatic equivalence and proposed that the function of a text be determined by the
situational elements of the source text A more elaborate discussion of the notion of
INTRODUCTION 2
equivalence can be found in Baker (1992) who examined the notion of equivalence at
four different levels in relation to the translation process ie the word level the
grammatical level the textual level and the pragmatic level Taken together these
levels encompass all aspects of translation process
While characterizing translation as an interlingual rather than a socio-cultural
activity scholars such as Catford and Nida did not lose sight of the role that cultural
elements play in the process of translating Catford drew a distinction between
ldquocultural untranslatabilityrdquo and ldquolinguistic untranslatabilityrdquo (1964 pp101-03) Nida
examined cultural problems in translating (1981) Newmark (1988) in particular
examined untranslatable culturally specific items and put them into different
categories (p 95) However he rejected the ldquoprinciple of equivalencerdquo underlying
Nidarsquos theory of dynamic equivalence and suggested two approaches to translation
namely communicative translation which aims to produce on the target reader effects
similar to those on the source reader and semantic translation which aims to render
ldquoas closely as possible the semantic and syntactic structures of the second languagerdquo
(1988 pp 39-41) The former gives priority to the response of the target language
reader while the latter foregrounds the meaning of the original The appropriateness of
these two methods depends on the text-type and the purpose of the translation
The cultural dimension is central to both the polysystem theory of Zohar (1990)
and Touryrsquos (1980) descriptive approach The polysystem theory treats any semiotic
(poly)system (such as language or literature) as a component of a larger (poly)system
or culture Translated literature is therefore a system operating as a part of larger
social cultural and historical systems of the target culture The correlations between
literature and other cultural systems for instance language society or ideology could
INTRODUCTION 3
be seen as a functional relationship within a cultural whole By employing the notion
of norm in his treatment of translation criticism Toury (1980) pointed us in a new
direction for translation studies As he sees it translation criticism consists in the
study of metatexts produced in a given receiving culture under certain discernible
socio-cultural constraints Translation criticism therefore performs the task of
reconstructing such constraints as are operative in a particular translation It sets out to
identify constraints of translation behaviour describe the decision-making process the
translator has gone through and formulate hypotheses capable of being tested by
further studies Touryrsquos idea can be said to have inspired the ldquocultural turnrdquo in
translation studies in the 1990s
It was around this time too that translation theory began to undergo a rather
radical transformation Translation was increasingly seen as involving a conscious act
of manipulation that moved the author toward the reader and made texts as palatable
in the target language and culture as they were in the source language and culture The
ideals of equivalence and faithfulness were now being seriously questioned The
cultural turn in translation studies shifted away from purely linguistic analysis
redefining translation as intercultural communication and focusing on the
socio-cultural and ideological dimensions of translating For Lefevere (1992)
translation was essentially rewriting and manipulation He remarked
On every level of the translation process it can be shown that if linguistic considerations enter
into conflict with considerations of an ideological and or poetological nature the latter tend to
win out (p 9)
INTRODUCTION 4
Another cultural theorist Venuti (1995) who drew a distinction between
domestication and foreignization also insisted that translation must take into account
the value-driven nature of the socio-cultural framework within which it is carried out
Culture and cultural elements are no longer seen as impediments to successful
linguistic transfer Rather culture is an encompassing framework within which
effective translation operates The cultural turn widens the scope of translation by
revealing that the translator not only works with the language pair in question ie the
source text and the target text but also with the two cultures ie the source culture
and the target culture Translation is now considered a purposive activity The
outcome or product of translation is understood in a wider context and the factors
affecting the translatorrsquos decision making process are given special emphasis
12 The Emergence of Cultural Transfer in Translation Theory
The characterization of translation as cultural transfer is an outcome of the trend
mentioned in section 11 According to Vermeerrsquos (1996) skopos theory translation is
a cross-cultural transfer a form of human interaction determined by its purpose or
ldquoskoposrdquo Following Vermeer Snell-Hornby (1988) denounced linguistic transfer as
inadequate contending that translation should instead be seen as a cross-cultural event
Translation as cultural transfer has become a dominant view resulting from the
ldquocultural turnrdquo in translation theory and a ldquoshift of emphasisrdquo from ldquoformalist phaserdquo
to ldquobroader issues of context history and conventionrdquo (Bassnett 1998 p 123)1
1 Back in 1990 Bassnett and Venuti observed that major changes in translation studies had taken place
They remarked
INTRODUCTION 5
Hatim (2001) also labelled this ldquoinfluential trend in recent translation studiesrdquo as ldquothe
cultural modelrdquo an approach contrary to the linguistic model which dominated early
translation studies in the last century (p 44) Snell-Hornby (2006) described the
ldquocultural turn of the1980srdquo as the trend driven by the theoretical impetus from various
sources such as descriptive translation studies skopos theory and deconstructionism
(p 47)2
Snell-Hornby (1988) first employed the term ldquocross-cultural transferrdquo in
subscribing to Vermeerrsquos view that translation was not the trans-coding of words or
sentences between languages but a ldquocross-cultural transferrdquo (p 46) She argued that
in traditional linguistic oriented theory ldquothe text was then seen as a linear sequence of
units and translation was merely a trans-coding process involving the substitution of a
sequence of equivalent unitsrdquo and that the equivalence-centred studies carried out by
Jacobson Nida and Catford were crippled by the very concept of equivalence (pp
16-19) She contended that the pursuit of equivalence was an incurable illusion based
on the false presumption of absolute symmetry between languages and was thus a
distortion of the fundamental problems in translation Her denunciation of equivalence
was best represented by the following remarks
The object of study has been redefined what is studied is the text embedded in its network of
both source and target cultural signs and in the way Translation Studies has been able to utilize
the linguistic approach and to move out beyond it (p 12) 2 Toury (2007) noted the influence of cultural studies in translation He remarked
The last decade has been marked by the foregrounding of cultural concerns in all the sciences of
man including the ones interested in language and language behavior This development has
already brought along substantial changes in the way phenomena lsquoin the world of our
experiencersquo are approached which students of translation were among the first to applaud - and
adopt There were even colleagues who nicknamed the 1980s the era of rsquocultural turnrsquo in
Translation Studies (eg Bassnett and Venuti 1990) even though it is not always all that clear
what this term was meant to cover (p 1)
INTRODUCTION 6
In this study the view is also taken that equivalence is unsuitable as a basic concept in translation
theory the term equivalence (the authorrsquos italics) apart from being imprecise and ill-defined
(even after a heated debate of over twenty years) presents an illusion of symmetry between
languages which hardly exists beyond the level of vague approximations and which distorts the
basic problems of translation (1988 p 22)
In explaining the nature of translation she noted that ldquolanguage is not seen as an
isolated phenomenon suspended in a vacuum but as an integral part of culturerdquo (p
39)3 Apart from the definition given by Goodenough and Gohring Snell-Hornby
also subscribed to Vermeerrsquos concept of culture in translation She remarked
This new definition correlates with the concept of culture now prevalent in translation theory
particularly in the writings of Vermeer hellip and is the one adopted in this study hellip the concept of
culture as a totality of knowledge proficiency and perception is fundamental in our approach to
translation If language is an integral part of culture the translator needs not only proficiency in
two languages he must also be at home in two cultures In other words he must be bilingual and
bicultural (cf Vermeer 1986) (1988 pp 40 42)
According to Snell-Hornby Vermeer was among the first to argue that the linguistic
approach was far from adequate for understanding the nature of translation and that
3 Commenting on the definition provided by American ethnologist Ward H Goodenough and German
scholar Heinz Gohring Snell-Hornby(1988) remarked
There are three important points common to both definitions quoted above but which are
especially prominent in Gohringrsquos German adaptation firstly the concept of culture as a totality
of knowledge proficiency and perception secondly its immediate connection with behaviours
(or action) and events and thirdly its dependence on norms whether those social behaviours or
those accepted in language usage (p 40)
INTRODUCTION 7
translation was first and foremost a cross-cultural transfer In this regard Vermeer
remarked
Translation is not the trans-coding of words or sentences from one language to another but a
complex form of action whereby someone provides information on a text (source language
material) in a new situation and under changed functional cultural and linguistic conditions
preserving formal aspects as closely as possible (Snell-Hornby 1990 p 82)
Rather than giving emphasis to the equivalence of linguistic units such as words
or sentences Vermeer began to view translation as a complicated action in a broader
socio-cultural context In his skopos theory translation is a form of human interaction
determined by its ldquoskoposrdquo or purpose Following in the footsteps of Vermeer
Snell-Hornby took a cultural approach abandoning linguistic equivalence as the goal
of translation She held that the translatorrsquos cultural knowledge proficiency and
perception underpinned not only his ability to ldquoproduce the target text but also his
understanding of the source textrdquo (p 42) In other words understanding of the cultural
elements of both the SL and TL was a pre-requisite in translation However she did
not explain how translation could take place between cultures without taking
linguistic equivalence into consideration
The notion of cultural transfer has been given different and even conflicting
interpretations in the literature and the range of empirical facts judged to be relevant
to the study of cultural transfer varies from theory to theory In addition any study of
translation must deal with the language pair in question and translation is always a
verbal representation of the source text In the next chapter we will scrutinize the
notion of cultural transfer and examine the questions at issue
INTRODUCTION 8
13 Legal Translation Theory In Search of Goal and Strategy
In traditional translation theory legal texts were regarded as a species of LSP
text and their translation was accordingly treated as a kind of technical translation In
recent translation theory a change in perspective has occurred along with the
emergence of approaches centered on cultural and communicative factors described in
section 11 The translation of legal texts has increasingly been regarded as a
communicative act no longer a mere operation on the technical linguistic elements to
achieve verbal and grammatical parallelism as well as equivalence in legal meaning
Moreover the translator is no longer considered a passive mediator but rather an
intercultural operator whose choices are increasingly recipient-oriented and based not
only on strictly linguistic criteria but also on extra-linguistic considerationsmdashfirst and
foremost the function of the translated text in the target culture In this section we
will look at studies in legal translation with respect to its goal and strategy
Wilss (1982) observed that at the outset of translation studies it was generally
agreed that the goal of all translation was to achieve equivalence by producing the
closest possible equivalent text In normal practice the legal translator was expected
to produce a strictly literal translation to retain the elements of the original texts The
basic unit of translation was still the word Basic changes in syntax were permitted so
as to respect the grammatical rules of the target language
Approaching legal translation from the perspective of communication Sager
(1997) held that recent translation theory had taken into consideration cultural
differences between the source and target languages as well as the purpose of the
translated text He also noted that the concept of equivalence had been modified to
INTRODUCTION 9
text-type equivalence as opposed to textual equivalence Rejecting the static view of
linguistic equivalence and characterizing translation ldquoas one possible step in a
communication process between two culturesrdquo Sager proposed an approach to
translation based on communication theory with a view to ldquoredefining the relationship
between source and target textrdquo (pp 26 27) The translator was considered as an
information mediator who needed to identify the writerrsquos intention the readerrsquos
expectation the text-type in question and possible ways to reconstruct them In
relation to translation strategy he also pointed out that the traditional concept of
translation which aimed to preserve both content and intention applied only in the
case of translation of a letter or a technical instruction from one language to another
Sagerrsquos communicative approach represents a shift of focus from source text to target
text and frees the legal translator from the rigid grip of linguistic equivalence
However Sager did not explain how the legal translator could reconcile the writerrsquos
intention with the readerrsquos expectations and in what ways the goals of translation of
legal language as a special text-type differed from goals in translating other text-types
Functionalists who focus their attention on the concepts of skopos and
target-orientedness no longer take the source text as the only standard for assessing a
translation Instead translation is now assessed on the basis of its adequacy for the
communicative purpose within the target culture (Vermeer 1984 Nord 1991 1997)
As for the applicability of this approach to legal translation functionalists have
claimed that their theory is comprehensive and applicable to all text-types in all
situations (Vermeer 1982 p 99) But doubts have been raised as to whether the
functional approach could be validly applied to LSP texts and in particular to legal
texts (Trosborg 1997) The main objections are centred on the typical
recipient-orientedness of the functional approach which seems inappropriate for legal
INTRODUCTION 10
language which is governed by rigorous rules of interpretation In response to such
objections Šarčević (1997) argued that legal translation should no longer be regarded
as a process of linguistic trans-coding but an act of communication in the mechanism
of law (p 55) She criticized scholars who focus their attention primarily on language
and the linguistic elements of the text for ignoring the fact that legal translation was
also receiver-oriented and that legal communication could be effective only if
interaction was achieved between text producers and receivers (pp 55-56) She thus
redefined the goal of legal translation as the production of a text with the same
meaning and effect as the original text with special emphasis on effect The translator
should also preserve the unity of a single instrument by striving to produce a text that
would be interpreted and applied by the courts in the same manner as the other
parallel texts of that instrument particularly the original (p 72) In order to achieve
this goal a thorough understanding of the legal cultures in which the translation
ultimately functions is a must as translation problems emerge as a result of different
legal histories and cultures Legal translators could only overcome the problems posed
by different legal cultures with a clear knowledge of the fundamental differences
between legal systems For Šarčević understanding the legal cultures of ST and TT is
vital for legal translation Like functionalists she attaches a great deal of importance
to the communicative function of legal translation However she does not explain
how the legal translator could simultaneously achieve the same meaning and the same
effect as the source text
Taking the view that legal texts form a specific genre with their own unique
linguistic framework and generic knowledge text typology as recently developed has
positive implications for the goal and theoretical methodologies of legal translation
Trosborg (1997) held that distinguishing between political texts legal texts and other
INTRODUCTION 11
text-types was of great significance as they required different translation approaches
Defining genre analysis as ldquothe study of situated linguistic behavior in
institutionalized academic or professional settingsrdquo Bhatia (1997) adopted a
genre-based approach to translation He noted two crucial characteristics of genre
analysis One is that genre analysis is not ldquoan extension of linguistic formalismrdquo in the
sense that it examines the use of language to achieve the communicative purpose
rather than linguistic equivalence The second is that genre theory explores ldquoall
aspects of socio-cognitive knowledge situated in disciplinary cultures in order to
analyze construction interpretation and use of linguistic communication to achieve
non-linguistic goalsrdquo (p 205) Therefore the genre-based approach to legal translation
is by nature a pragmatic study of the use and effect of language within a particular
legal culture For Bhatia the goal of legal translation must include the ldquoaccessibility
of the target text for a specific audiencerdquo and he therefore advocated the method of
easification ldquoa process of making a text-genre more accessible to an intended
readership without sacrificing its generic integrityrdquo (p 209) He held that this
genre-based approach to the teaching and learning of translation had the advantage of
encouraging the learner He remarked
hellip this awareness of participation in the ownership of the genres of legal culture is what Swales
(1990) calls raising rhetorical consciousness in the learner (or translator) (p 212)
Accordingly cultural awareness is a pre-requisite for the legal translator While
Bhatiarsquos approach to legal translation is genre-based his emphasis on legal culture is
similar to Šarčevićrsquos view He also held that the goals of legal translation should
include the readability of the target text
INTRODUCTION 12
We can see from the discussion above that legal translation has been
approached from three different perspectives There has been a shift from producing
the closest possible equivalent text to producing a text with the same meaning and
effect as the other parallel text(s) a shift of focus in translation theory from fidelity to
the source text to the readability of the target text and a shift from the merits of
interlingual equivalence to the demands of cross-cultural communication Awareness
of the differences between the cultures of different legal systems is of paramount
importance in legal translation In the next chapter we will re-examine the goal of
legal translation and show in the light of a clarified notion of cultural transfer that
cultural transfer as domestication is not appropriate for the kind of legal translation
which aims to produce an authentic version of the law
14 Rationale for the Study
The rationale for the present study is twofold Firstly cultural transfer is
arguably the most discussed but least understood concept in recent translation
theory In the absence of a clear notion of what this concept means it is difficult to
arrive at a judicious understanding of the nature of translation Secondly legal
translation in particular legislative translation as carried out in Hong Kong can serve
as an exemplary case study for understanding the multi-faceted problems relating to
the concept of cultural transfer As will be shown cultural transfer in Snell-Hornbyrsquos
sense ie domestication at the cultural level is totally inappropriate for legal
translation The question we have to address is what does ldquocultural transferrdquo mean in
legal translation and how is it effected
INTRODUCTION 13
The translation of the English legislation enacted before 1987 into Chinese in
Hong Kong was clearly a mammoth legal project4 While this was completed before
the handover of the sovereignty of Hong Kong to the Peoplersquos Republic of China on 1
July 1997 a good part of the common law including case law has yet to be translated
or represented in one form or another in Chinese It is hoped that the theoretical
inquiry into cultural transfer in legal translation undertaken by the present thesis can
provide some insights into the future development of bilingual legislation in Hong
Kong
4 English had been the language of the law since Hong Kong became a British colony in 1842 and
remained so until Section 4 of the Official Language Ordinance as amended in 1987 stipulated that
ldquo[a]ll Ordinances shall be enacted and published in both official languagesrdquo The Interpretation and
General Clauses Ordinance as amended in 1987 defined ldquoofficial languagerdquo as ldquothe English language
and the Chinese languagerdquo
Chapter 2
Translation as Cultural Transfer
21 Clarification of the Notion of Cultural Transfer
211 Cultural Transfer vs Transcoding
Despite years of debate translation scholars are still wrestling over whether a
translation should be literal or free In traditional theory literal translation has been
characterized as a word-for-word transmission of a text from one language into
another The adequacy of translation has traditionally been judged on the basis of the
degree of lexical and grammatical correspondence between the source and target
languages Such correspondence is often defined in terms of equivalence Thus
fidelity to the original text is considered the most important principle of translation
and the main task of the translator is to find the best equivalence On the other hand
free translation has been characterized as a sense-for-sense transmission not
constrained by the lexicon or grammar thus giving the translator absolute freedom as
to how to render the source text in the target language Challenging the rigid
dichotomy of word and sense Snell-Hornby (1988) contended that it was rooted in
the ldquoillusion of equivalencerdquo (p 13) and as we have already noted advocated the
notion of cultural transfer as a complete break with the traditional theory She pointed
out that this new orientation had in fact already been put forward by several German
scholars in the 1980s She said
TRANSLATION AS CULTURAL TRANSFER
15
What is dominant in the three new basic approaches recently presented in Germany hellip is the
orientation towards cultural rather than linguistic transfer secondly they view translation not as
a process of transcoding but as an act of communication thirdly they are all oriented towards
the function of the target text (prospective translation) rather than prescriptions of the source text
(retrospective translation) fourthly they view the text as an integral part of the world and not as
an isolated specimen of language These basic similarities are so striking that it is not exaggerated
to talk of a new orientation in translation theory (pp 43-44)
Adopting Vermeerrsquos view that translation is a ldquocross-cultural eventrdquo
Snell-Hornby argued that translation was not simply as ldquoa matter of languagerdquo but a
ldquocross-cultural transferrdquo (p 46) As has been noted in section 11 Vermeer (1996) in
his endeavour to establish skopos theory held that translation was not the
trans-coding of words or sentences from one language to another but a complex form
of action Skopos theory is basically a functional theory and ldquoits concern is the
potential functionality of a target-text (translationtranslatum) under target-culture
(lsquorecipientsrsquo) conditionsrdquo (1996 p 31) Vermeer emphasized that the target culture
constrained the choices available to the translator urging her to pay special heed to
the convention of the target culture and the expectations of the target reader which in
turn pre-determine the function of the translation In refuting the concept of
equivalence he contended
It is not the source-text equivalence (or more loosely correspondence) requirement which
guides the translation procedure but the skopos eg to show target-text recipients how a
source-text iswas structuredrdquo (1996 p 51)
TRANSLATION AS CULTURAL TRANSFER
16
One of the main factors in the skopos of a communicative activity is ldquothe (intended)
receiver or addressee with their specific communicative needsrdquo (1996 p 46) He
claimed that skopos theory applied to all translations and the function of the
translation in the target text could differ from that of the source text The same text
could therefore be translated in different ways depending on its function and the
translatorrsquos main task was to produce a new text that satisfies the cultural expectations
of target receivers
As Vermeerrsquos and Snell-Hornbyrsquos proposed new orientation was intended as a
revolt against the prevailing linguistic approach we now need to look back at the
major tenets of this earlier turn
Catford is generally acknowledged to be the founder of the linguistic school in
translation theory In defining translation as ldquothe replacement of textual material in
one language (SL) by equivalent textual material in another language (TL)rdquo (1965 p
20) Catford presupposed the existence of linguistic equivalence between SL and TL
For him textual material was not ldquothe entirety of a SL textrdquo but mainly the ldquogrammar
and lexisrdquo (p 20) He further made a linguistic break-down of SL and TL into what he
called ldquoextentrdquo ldquolevelsrdquo and ldquoranksrdquo employing equivalence as a key concept
throughout (p 21) He said
The central problem of translation practice is that of finding TL translation equivalents A
central task of translation theory is that of defining the nature and conditions of translation
equivalence (p 21)
TRANSLATION AS CULTURAL TRANSFER
17
Thus in Catfordrsquos view the central problem and task of translation centre around the
concept of equivalence He further distinguished between ldquotextual equivalencersquordquo and
ldquoformal correspondencerdquo two basic translation equivalences in his theory (p 27)5
Equivalent units in the TL vary in size from the entire text to any portion of the text
having a wider scope than formal correspondence In his view textual equivalence is
represented by the occurrence of a TL textual equivalent for a specific SL item
allowing equivalence-probabilities to be established between the two (p 30)
Thus for Catford establishing equivalence-probabilities is an ideal goal of
translation as these allow translation to be carried out in a manner similar to
mathematics
On the other hand formal correspondence as Catford pointed out is best
exemplified by translation between two languages both of which operate with
ldquogrammatical units at (all) five ranksrdquo (for example English and French)6 While
formal correspondence is harder to achieve as it requires the nearest match between
TL and SL grammatical categories and can only be fulfilled through textual
equivalence Catford maintained that the former is still ldquoan essential basis for the
discussion of problems which are important to translation theory and necessary for its
applicationrdquo in translation practice (pp 32-33) Observing that there are always ldquosome
departures from the formal correspondencerdquo what he called ldquoshiftsrdquo he conceded that
5 The definitions of textual equivalence and formal correspondence are given as follows
A textual equivalence is any TL text or portion of text which is observed on a particular occasion
by methods described below to be the equivalent of a given SL text or portion of text A formal
correspondence on the other hand is any TL category (unit class structure element of structure
etc) which can be said to occupy as nearly as possible the lsquosamersquo place in the lsquoeconomyrsquo of the
TL as the given SL category occupies in the SL (Catford 1965 p27) 6 The five ranks are sentence clause group word morpheme (Catford 1964 p32)
TRANSLATION AS CULTURAL TRANSFER
18
formal correspondence can only be approximate in nature He further distinguished
between two major types of ldquoshiftsrdquo level shifts and category shifts In general terms
they are linguistic units in SL which have TL equivalents belonging to a different
linguistic level or category (1965 p 73) Thus Catford was well aware that
ldquotranslation equivalence does not entirely match formal correspondencerdquo That is why
he resorted to textual equivalence (p 82) He was also aware that even textual
equivalence is not always achievable because of two kinds of un-translatability
linguistic and cultural Linguistic un-translatability occurs when there is no lexical or
syntactical substitute in the TL for an SL item whereas cultural un-translatability is
due to the absence in the TL culture of a relevant situational feature for the SL text
We are now in a better position to assess Snell-Hornbyrsquos critique of Catfordrsquos
linguistic theory of translation Her main criticism7 centres around the foundation of
his linguistic approach which seems to her shaky
Catford bases his approach on isolated and even absurdly simplistic sentences of the type
propagated in theory of transformational grammar as well as on isolated words from such
examples he drives ldquotranslation rulesrdquo which fall far short of the complex problems presented by
real-life translation (1988 p 20)
Anyone who has read Catford carefully can see that this criticism is totally
unfounded According to Catford translation textual equivalents are discovered by
two methods namely by consulting the linguistic intuition of competent bilingual
7 Snell-Hornby also dismissed Catfordrsquos definition of textual equivalent as circular (1988 p20) She
is correct on this point as Catford did use the term ldquoequivalentrdquo to define ldquotextual equivalentrdquo (see
footnote 5 above)
TRANSLATION AS CULTURAL TRANSFER
19
informants or translators or through a formal procedure of commutation and
observation of concomitant variation the latter being ldquothe ultimate testrdquo (1965 pp
27-28) But Snell-Hornby completely and conveniently ignores the second method
directing her attack solely on the first
Anyone with experience in translation knows all too well the opinions of the most competent
translators can diverge considerably and the hellip [first method] ismdashfor a rigorously scientific
disciplinemdashhopelessly inadequate (1988 p20)
This criticism fails to do justice to Catford He made it very clear that consulting
the linguistic intuition of competent bilingual informants or translators works only for
simple cases but that for complicated cases the formal procedure may be used (p 28)
To illustrate this point let us adapt Catfordrsquos examples Suppose we have the
following sentence pair
1a 我的兒子六歲
1b My son is six
If we change ldquo兒子rdquo of 1a to ldquo女兒rdquo to obtain
1c My daughter is six
then the changed portion of 1b namely ldquodaughterrdquo can be taken to be the equivalent
of the changed portion of 1a namely ldquo女兒rdquo ie ldquodaughterrdquo = ldquo女兒rdquo The method
applies not only to lexical words but also to structural words Consider the following
sentence pair
2a 地上有黃金
2b There is gold on the ground
TRANSLATION AS CULTURAL TRANSFER
20
If we change ldquo上rdquo in 2a to ldquo下rdquo to obtain
2c There is gold under the ground
likewise the changed portion of 2b namely ldquounderrdquo can be taken as the equivalent of
the changed portion of 2a namely ldquo下rdquo ie ldquounderrdquo = ldquo下rdquo
Of course the procedure is not always so straightforward Finding a translation
equivalent may involve the very complicated procedure of comparing a great number
of sentence pairs However complicated it can nonetheless be carried out rigorously
and each of its finding subjected to very strict tests
What is most noteworthy about Catfordrsquos second method is that it is an empirical
and probabilistic one Translation equivalence is ldquoan empirical phenomenon
discovered by comparing SL and TL textsrdquo (p 27) Well aware of the fact that
equivalence between an SL item and a TL item is not always a one-to-one
correspondence Catford assigned a probability value to each equivalent pair ranging
from 0 (zero equivalent) to 1 (one-to-one) The following is Catfordrsquos own example
[I]n a French short story of about 12000 words the preposition dans occurs 134 times The
textual equivalent of this in an English translation is in in 98 occurrences into in 26 from in 2
and about and inside in one occurrence each there are six occurrences of dans where the
equivalent is either nil or not an English preposition hellip In terms of probabilities we can state the
translation equivalences as follows dans = in 73 dans = into 19 dans = from 015 dans =
aboutinside 0075 This means that if you select any occurrence of dans at random in this text
the probability that its translation equivalent on that occasion is in is 73 the probability that it is
into is 19 etc (1965 p 30)
TRANSLATION AS CULTURAL TRANSFER
21
Catford further distinguished between two types of probability value namely
unconditioned probabilities and conditioned probabilities the latter being values
affected by contextual and co-textual factors (pp 31-32) He went on to make the
following remark
Provided the sample is big enough translation-equivalence-probabilities may be generalized to
form lsquotranslation rulesrsquo applicable to other texts and perhaps to the lsquolanguage as a wholersquomdashor
more strictly to all texts within the same variety of the language (p 31)
Thus nothing is further from the truth than accusing Catford of deriving
translation rules from ldquoabsurdly simplistic sentencesrdquo as alleged by Snell-Hornby
Quite on the contrary for Catford they are derived from a big enough samplemdash a big
enough corpus in contemporary linguistic terminology More crucially his approach
is in all important respects the same as the corpus-based approach in translation
studies today which aims to extract translation rules from a huge parallel corpus of
translated texts Catford can thus properly be said to be the pioneer of the
corpus-based approach in translation studies
Three further points must be made about Catfordrsquos linguistic approach
particularly since it has been so unfairly and widely criticized even to the extent of
making it something of a dead horse in translation studies today
First Catfordrsquos linguistic approach is by no means built on the ldquoillusion of
equivalencerdquo For he expressly states that ldquothe SL and TL items rarely have lsquothe same
meaningrsquo in the linguistic senserdquo (p 49) ldquosince every language is formally sui generis
and formal correspondence is at best a rough approximationrdquo (p 36) Translation
TRANSLATION AS CULTURAL TRANSFER
22
equivalence is therefore not based on sameness in meaning but on functional
interchangeability in the same context (p 49) Put briefly a TL sentence T is a
translation equivalent of an SL sentence S if T and S have overlapping meanings
relevant to the context in question (pp 37-39) such that T ldquocan function in the same
situationrdquo as S (p 49)8 Accordingly the aim of translation is Catford argued to
select TL equivalents ldquonot with the same meaning as the SL items but with the
greatest possible overlap of situational rangerdquo (p 49) Catfordrsquos ldquotranslation
equivalentrdquo looks very much the same as Nidarsquos ldquoclosest natural equivalentrdquo but it
differs from the latter in one crucial aspect in that it is invariably context-dependent
whereas the latter can be context-free
Another equally important point about Catfordrsquos linguistic approach can best
been seen from the following passages
hellip[A] manifestation of the lsquosame meaningrsquo or lsquomeaning-transferencersquo fallacy is seen in the view
that translation is a lsquotranscodingrsquo process a well-known example being Weaverrsquos remark
lsquoWhen I look at an article in Russian I say ldquoThis is really written in English but it has been
coded in some strange symbols I will now proceed to decoderdquo
This implies either that there is a one-to-one relationship between English and Russian
grammaticallexical items and their contextual meanings or that there is some pre-existent
lsquomessagersquo with an independent meaning of its own which can be presented or expounded now in
one lsquocodersquo (Russian) now in another lsquocodersquo (English) But this is to ignore the fact that each
8 While Catford explained this point in great detail in Chapter 5 Meaning and Total Translation we
cannot elaborate on it here
TRANSLATION AS CULTURAL TRANSFER
23
lsquocodersquo (ie each language carries with it its own particular meaning since meaning hellip is lsquoa
property of languagersquohellip
hellip
Our objection to lsquotranscodingrsquo or lsquotransference of meaningrsquo is not a mere terminological quibble
There are two reasons why translation theory cannot operate with the lsquotransference of meaningrsquo
idea In the first place it is a misrepresentation of the process and consequently renders the
discussion of the conditions of translation equivalence difficult in the second place it conceals
the fact that a useful distinction can be made between translation and another process which we
call transference In transference hellip there is indeed transference of meaning but this is not
translation in the usual sense (pp 41-42)
Meaning does not get transferred in translation and translation is not a process of
transcoding This comes out loud and clear in Catford Translation for him is not a
process of code-switching according to rigid mechanical rules based on one-to-one
formal correspondence between SL and TL items as Nord has alleged (1997 p 7)
nor is it a process of transcoding of pre-existent naked meaning So the Catford that
Snell-Hornby and many others have attacked turns out to be not merely a straw man
but ironically also a comrade in arms
A third important point to note about Catfordrsquos linguistic approach is that it is by
no means incompatible with the so-called cultural approach As has been shown
Catfordrsquos approach is an empirical and probabilistic one Its aim is twofold first to
find TL equivalents (in his sense) by way of comparing actual samples of SL and TL
texts with the resultant TL equivalents serving as translation rules and second to set
out the conditions for justifying TL equivalence Unlike Snell-Hornby and many other
theorists Catford never told us how to translate So in this sense his linguistic
TRANSLATION AS CULTURAL TRANSFER
24
approach can be said to be theory-free He only told us how to find translation
equivalents which is exactly what corpus linguists do nowadays A corpus might
contain TL texts produced in the light of different or even conflicting theories but
Catfordrsquos approach would still be applicable Accordingly the cultural approach
advocated by Snell-Hornby and others of a similar persuasion is not really a rival
approach and hence there is not much sense in talking about an emancipation from
the linguistic theory of translation that Catford represents
212 Vermeerrsquos View of Translation as Cross-cultural Transfer
The tenets of the cultural school as represented by Vermeer and Snell-Hornby
can be reduced to three statements
1 Translation is not simply a matter of language and it does not take place
merely between languages
2 Language is an integral part of culture and hence translation from one
language to another is a cross-cultural transfer and
3 The source text in itself does not dictate how it is to be translated what
dictates the translation is the specific purpose in question
This counters the lay view of translation described well enough by Snell-Hornby
as follows
hellip translation is simply a matter of words or individual linguistic signs which are replaced by
equivalent words signs or units in the target language The translator so it is assumed therefore
TRANSLATION AS CULTURAL TRANSFER
25
needs either simply a good command of the vocabulary in both languages involved or a good
dictionary (1992 p 2)
Such a naive static and mechanical view is as Snell-Hornby endeavoured to show
rooted in the false belief in the existence of equivalence between languages ie a
one-to-one correspondence between SL and TL items Yet her critique of such a
notion was directed not so much against lay people as against Catford and other
descriptivists such as Toury and Koller But it is really hard to see how such a view
of translation could be attributed to Catford who expressly dismissed it as fallacious
We do not want to labour this point but let us just say this Vermeer and
Snell-Hornbyrsquos vehement opposition to the linguistic approach is totally misguided
In place of the false dichotomy of word vs sense they have ushered in the false
dichotomy of transcoding vs cultural transfer As has already been shown by Catford
there is no such a thing as transcoding What then is cultural transfer
Vermeer answered the question with a metaphor
What does it mean to translate hellip Suppose you take a tree from a tropical climate to a temperate
zone Will it not need special care Will it not be considered something out of the ordinary by
whoever sees it It will never be the same as before neither in growth or in the eyes of its
observers hellip With a translation it is not much different One will have to decide before
translating whether it is to be ldquoadaptedrdquo (to a certain extent) ie ldquoassimilatedrdquo to target culture
conditions or whether it is meant to display and perhaps even stress its ldquoforeignrdquo aspect One
will have to make a choice In both cases the text will be ldquodifferentrdquo from what it was in its
ldquonormalrdquo source-culture conditions and its ldquoeffectrdquo will be different Assimilation does not
necessarily mean making a text look like an ordinary target-culture text(eme) ie making it look
TRANSLATION AS CULTURAL TRANSFER
26
ldquoas though it were not translationrdquo Assimilation need not take place on the ldquosurfacerdquo level
alone paradoxically enough assimilation on other levels can lead to an ldquoalienationrdquo
(Verfremdung) on the surface level (1995 p 39)
Translation is likened to the transplant of a tree onto foreign soil for a specific
purpose The translated text (the transplanted tree) has been adapted or assimilated to
a culture (foreign soil) different from the original (home soil) One important point to
note here is assimilation can take place on different levels the target text is not
necessarily a completely domesticated textmdashit may indeed turn out to be alien to the
target culture This is a point which has been overlooked or suppressed by Vermeerrsquos
followers who have identified Vermeerrsquos functional approach with domestication
Since the notion of skopos is an all-embracing one it is in principle able to
accommodate all kinds of approach to translation
hellip skopos theory hellip allows for transferring (or demands the transfer of) as many features of the
source-text surface-structure as possible into target culture surface-structure features in such a
way that target-culture addressees can appreciate the literariness of the translation in a way
comparablesimilarcorresponding to source-culture addressees who are able to appreciate their
source-text (1995 p 50)
[Note in the original The term ldquotransferrdquo is not strictly applicable Nothing is physically
transferred]
The passage is worth noting in two important respects The original footnote clearly
shows that Vermeer was not comfortable with the word ldquotransferrdquo It would be
interesting to see what word he would or could have used in its place ldquoTranscodingrdquo
would have definitely been ruled out as by it he meant translation which takes place
TRANSLATION AS CULTURAL TRANSFER
27
merely between languages guided by the principle of equivalence This is not a trivial
observation For ldquotranslation as cultural transferrdquo was used by him to mark a new
orientation in translation studies So it is legitimate to press the question of what he
meant by ldquocultural transferrdquo The tree transplanting metaphor cited above suggests
that in translation a text is transferred from one culture to another with the two
cultures in question remaining unchanged This is in line with the definition Vermeer
gave in his seminal paper entitled ldquoTranslation as a cultural transferrdquo (1986) However
the passage just cited implies that transcoding in the sense that purely linguistic
features of the source text are ldquocarried over tordquo9 or reproduced in the target text can
be one possible purpose of translation This seems to defeat the whole purpose of
skopos theory which asserts that ldquotranslation is not the transcoding of words or
sentences from one language to anotherrdquo (1986 p 33) A closer look at his remarks
on the ldquoequivalence postulaterdquo of Touryrsquos theory will reveal something even more
devastating for skopos theory however
hellip there is a methodological difference between Touryrsquos approach and that of skopos theory
According to the latter a lsquotransferrsquo (by any strategy) of a great number of source-text phenomena
to a target-text still depends on the skopos (purpose) of translating It is not the source-text
equivalence (or more loosely correspondence) requirement which guides the translation
procedure but the skopos eg to show target-text recipients how a source-text iswas structured
(or for some other purpose hellip) The skopos is hierarchically higher than the equivalence postulate
Such a procedure is then not retrospective (as is the case when taking the source-text structure as
the highest element in the hierarchy) but prospective in the sense that the skopos demands a full
consideration of source-text structures for a given purpose In such a case the difference between
9 ldquoCarry overrdquo was also used by Vermeer as a synonym of ldquotransferrdquo (1990 p 50)
TRANSLATION AS CULTURAL TRANSFER
28
Touryrsquos approach and that of skopos theory is one of focus in practice the result may look much
the same (Ibid p 51 Italics mine)
The passage clearly shows that Vermeer was in fact not really against the equivalence
postulate or transcoding as he expressly stated that the difference between Touryrsquos
approach and his is ldquoone of focusrdquo ie Touryrsquos focus is on the source-text
(retrospective) whereas his is on the target-text (prospective) and that both
approaches may lead to much the same target text We can thus see that the kind of
transcoding he deplored was in the final analysis transcoding without a purpose
whereas he saw transcoding with a purpose as both possible and legitimate His
opposition to the linguistic approach turns out to have been overstated
The fundamental principle of skopos theory according to Vermeer is that it
ldquostrictly regards translating from the point of view of a text functioning in a
target-culture for target-culture addressesrdquo (1990 p 50) Translation as cultural
transfer is therefore translating a text from one culture to another according to a
specific function What is transferred (understood in a figurative sense) is the text not
the culture of the text But here Vermeer simply failed to see there are situations
where ldquocultural transferrdquo means ldquothe transfer of one culture to anotherrdquo and
legislative translation is a typical case of cultural transfer in this sense
213 Snell-Hornbyrsquos View of Translation as Cultural Transfer
In line with the central arguments of the new theoretical orientation which I
have just discussed Snell-Hornby held that translation was a cultural transfer rather
TRANSLATION AS CULTURAL TRANSFER
29
than a linguistic transfer and that translation as a cultural transfer was oriented
towards the function of the target culture and also facilitated cross-cultural
communication To illustrate this point Snell-Hornby (1998 pp 94-5) cited her own
experience in India When walking along the streets of Southern India about twenty
years earlier she was repeatedly approached by local people who asked her a question
in their native language which literally means ldquoWhere are you goingrdquo in English She
was obviously puzzled by this strange question Later she found out that it was a local
form of greeting when people met in the street A mere transcoding would yield
ldquoWhere are you goingrdquo which in her view was problematic because it was likely to
cause a communication break-down She pointed out how this showed the limitations
of mere transcoding by neglecting the twin facts that language was dependent on
cultural and social norms and that translation was essentially a cross-cultural event
Instead an appropriate translation would be ldquoHow are yourdquo as it complied with the
conventions of greeting in English and thus effected a cultural transfer
The starting point of Snell-Hornbys framework is reasonable in the sense that
the pursuit of absolute equivalence or symmetry between languages is futile and it is
doubtless the case that cultural elements must been taken into account when doing
translation If her thoughts on the incident lead her merely to the above conclusion
her argument about the cultural account in translation would be sound However in
analyzing the appropriate translation for the Indian way of greeting she distinguished
two translation methods one is the mere transcoding and the other is what she called
ldquocultural transferrdquo In her view linguistic transcoding and cultural transfer are
apparently two distinct methods of translation Linguistic transcoding is reduced to
linguistic transference without any cultural account By contrast cultural transfer
indicates the rendering of source text smoothly and idiomatically such that the English
TRANSLATION AS CULTURAL TRANSFER
30
speaking reader would perceive the translation as conventional and familiar Thus the
important units of translation are seen as products of culture that emerges from their
distinctive social settings instead of strings of words or sentences or even whole texts
According to Snell-Hornby translation should be oriented towards the function of the
target text rather than submit to the prescription of the source text She remarked
The text cannot be considered as a static specimen of language (an idea still dominant in
practical translation classes) but essentially as the verbalized expression of an authorrsquos intention
as understood by the translator as reader who then recreates this whole for another readership in
another culture This dynamic process explains why hellip the perfect translation does not exist
(1988 pp 1-2)
We shall see from the above that in proposing the translator ldquorecreates this whole
for another readership in another culturerdquo Snell-Hornby holds that translation as
ldquocultural transferrdquo should conform to the cultural norms of the target language and
familiarize the source culture to the extent that target readers could identify it with
their own culture As has been shown the term ldquocultural transferrdquo is used by
Snell-Hornby as the antithesis to ldquolinguistic transcodingrdquo It is clear what she means
by ldquolinguistic transcodingrdquo a naiumlve simplistic static and mechanical manner of
translation which consists in matching SL and TL words solely by relying on a
bilingual dictionary a view of translation rooted in the false belief in the existence of
equivalence (a one-to-one correspondence) between languages However it is by no
means so clear what she means by ldquocultural transferrdquo particularly what she means by
ldquotransferrdquo ie what gets transferred in translation
TRANSLATION AS CULTURAL TRANSFER
31
She regularly stresses two points in her work First language is an integral part
of culture and also of the world Understanding a text requires an understanding of its
socio-cultural context and this applies to both the source text and the target text
Second translation is an act of communication oriented towards the function of the
target text not a mere linguistic operation prescribed by the source text These two
points seem clear enough but again what gets transferred in translation is not at all
clear
Her discussion of the translation approach of Hans G Houmlnig and Paul Kussmaul
(in Snell-Hornby 1988 pp 45-46 1990 pp 83-84) which she endorsed gives us
some idea of what she means
Houmlnig and Kussmaulrsquos starting point is the conception of the text as what they call lsquothe
verbalized part of a socio-culture (1982 58) the text is imbedded in a given situation which is
itself conditioned by its sociocultural background The translation is then dependent on its
function as a text lsquoimplantedrsquo in the target culture The basic criterion for assessing the quality of
a translation is called the lsquonecessary grade of differentiationrsquo which represents lsquothe point of
intersection between target text function and socio-cultural determinantsrsquo (1982 53)
To illustrate this they quote two sentences each naming a famous British public
school
In Parliament he fought for equality but he sent his son to Winchester
When his father died his mother couldnrsquot afford to send him to Eton any more
They then quote two extreme types of German translation
TRANSLATION AS CULTURAL TRANSFER
32
hellipseinen eigenen Sohn schickte er auf die Schule in Winchester
hellipkonnte es sich seine Mutter nicht mehr leisten ihn nach Eton zu schicken jene teure englische
Privatschule aus deren Absolventen auch heute noch ein Grossteil des politischen und
wirtschaftlichen Fuhrungsnachwuchses hervotgecht10
The first translation is under-differentiated the mere name ldquoWinchesterrdquo does not
carry the same meaning for a German reader as for an English one The second is
over-differentiated however correct the information on British public schools may be
it is superfluous to the text concerned In the first of the two sentences it is the
double-faced hypocrisy of the father (hence the exclusive elitist character of public
schools) that is stressed while the second focuses on an impoverished widowed
mother (and the expensive school fees) As the necessary grade of differentiation for
the texts in question the authors therefore suggest
Im Parlament kampfte er fur die Chancengleichheit aber seinen eigenen Sohn schickte er auf
eine der englischen Elisteschulten [elite schools]
Als sein Vater starb konnte seine Mutter es sich nicht mehr leisten ihn auf eine der teuren
Privatschulen [private schools] zu schicken (1990 pp 83-84)
Here Snell-Hornby agrees with Houmlnig and Kussmaulrsquos approach which rejects
the orthodox demand to preserve as much of the original as possible so as to achieve
equivalence in translation Preserving ldquoWinchesterrdquo in the German translation is an
under-translation because for German readers the name ldquoWinchesterrdquo would just be
10 Snell-Hornbyrsquos translation ldquohellipthat expensive English public school which even today produces
many of the future leaders in politics and managementrdquo
TRANSLATION AS CULTURAL TRANSFER
33
the name of a city perhaps even unable to call up the notion of there being a school
there let alone Winchester College the oldest public school in England On the other
hand filling in too much background information is an over-translation distracting
readers from the impoverished condition of the widowed mother The suggested
translations in which ldquoWinchesterrdquo is translated as ldquoone of the elite schools and
ldquoEtonrdquo as ldquoone of the expensive private schoolsrdquo give as much information as
necessary for the functions of the two English sentences to allow German readers to
understand the socio-cultural meaning of ldquoWinchesterrdquo and ldquoEtonrdquo So we are not
translating ldquowordsrdquo but ldquowords-in-textrdquo (1988 p 45) What gets transferred in
translation should be the socio-cultural meaning of words not their surface meaning
of words
In a paper entitled ldquoTranslation as a Cultural Shock Diagnosis and Therapyrdquo
(1992) Snell-Hornby describes how erroneous mechanical matching of equivalents
in translation can give rise to interlingual miscommunication and cultural shock An
amusing example reads
Nice German business man 36 wants to become a black woman Every letter will be answered
(p 2)
The shock obviously unintended is due to matching the German ldquobekommenrdquo (=
getfind) to the English ldquobecomerdquo Examples like this abound11
11 The English translation of a sign in China reads ldquoCarefully fall into the riverrdquo The Chinese
original reads ldquo小心堕河rdquo
TRANSLATION AS CULTURAL TRANSFER
34
On the syntactic level following the conventions of the source text would give
rise to stiltedness in the target text Very often equivalent syntactic forms are not
acceptable in the target language (1990 pp 6-7) The following are English
translations of a hotel advertisement in German The one on the left is the original
translation which stays close to German syntax and the one on the right is a rewriting
according to English advertising conventions
To enjoy Viennarsquos unique atmosphere Come and enjoy the unique
atmosphere
In one of the cityrsquos guesthouses of Viennamdashand stay in one of
the cityrsquos finest Pensionen
University City hall Parliament A few minutesrsquo walk from the
University
Burgtheatre and Vortivkirche City Hall Burgtheatre and
Vortivkirche
In the immediate vicinity
hellip hellip
The upshot of her discussion is this ldquoTranslation is not a merely a matter of
language but primarily one of knowledge of which language forms only a partrdquo (p
7) And translation should free itself from the inexorable grip of words and avoid
inflicting cultural shocks by conforming to the linguistic and cultural norms of the
target language Let us return for a moment to the questions arising from the two
approaches to translating the Indian greeting examined by Snell-Hornby namely
linguistic transcoding and cultural transfer For her the way to effect cultural transfer
is to match the original Indian greetings to an idiomatic expression in English In this
TRANSLATION AS CULTURAL TRANSFER
35
way the translation actually functions the same way as the original does but may fail
to preserve the original patterns and to reflect the real meaning expressed in the
original text In other words the cultural transfer that Snell-Hornby advocates
involves conformity with the conventions of the target culture In addition
Snell-Hornby only recognizes the importance of the source culture in the
understanding of source text Instead she places great emphasis on the target culture
since she holds that the translator should be oriented towards the target culture
producing translation that is representative of the culture of target language instead of
the culture of the source language Evidently translation as cultural transfer in this
sense involves inadequate transference of the source culture Cultural transfer is in the
final analysis ldquocommunication across culturesrdquo (p 7) very similar to what Newmark
called ldquocommunicative translationrdquo
214 Domestication vs Foreignization
In maintaining translation as cultural transfer Snell-Hornby is in fact adopting a
target-culture-oriented position For her the source culture is important only for
understanding the source text but the target culture in fact plays a far more vital role
since it shapes the target text which is what actually facilitates cross-cultural
communication Thus viewed translation as cultural transfer is in effect
cross-linguistic communication at the cultural level a mapping of the source culture
onto the target culture in other words a functional assimilation of the source culture
into the target culture
TRANSLATION AS CULTURAL TRANSFER
36
As is well known such an approach is contrary to the one advocated by
Schleiermacher For him there are only two options for the ldquotruerdquo translator Either to
move the reader towards the writer or to move the author towards the writer
(Robinson 1997 p229) He opted for the first remarking
To achieve this the translator must adopt an lsquoalienatingrsquo (as opposed to lsquonaturalizingrsquo) method
of translation orienting himself or herself by the language and content of the ST He or she must
valorize the foreign and transfer that into the TL (quoted in Munday 2001 p 28)
Adopting Schliermacherrsquos categorization of these two translation strategies
namely ldquoalienatingrdquo and ldquonaturalizingrdquo Venuti (1992) argues that the former strategy
could exert a positive influence on the target culture while the latter might inhibit
innovation on the part of the target language and culture Having examined past
examples of the decisive role of domestication in forming certain foreign cultural
identities in the target culture he had come to realize that translators had tended to
achieve the goal of communication by naturalizing foreign texts in order to conform
to domestic conventions However the domestication of a foreign culture could result
in misrepresentations of that culture Worse still it could paralyze the ability and
willingness of the target reader to accepting new elements from a foreign culture
Venuti came to the conclusion that although translation is bound to be domestication
to some degree foreignization ldquopromises a greater openness to cultural differencesrdquo
(p 23) Like Schliermacher he subscribed to foreignization which he believed was
the proper way to effect the transfer of the source culture as it allowed the target
language to be influenced and amplified by the source language and open the way to
novelty and innovation in the target language Thus translation as ldquocultural transferrdquo
leaves a choice open to each individual translator Either she chooses foreignization
TRANSLATION AS CULTURAL TRANSFER
37
preserving the alien elements in the target text or she chooses domestication ironing
these out to make the target text readily comprehensible to the reader The choice in
practice depends on the particular skopos that the translator intends
It is crucially important to understand the opposed notions of ldquodomesticationrdquo
and ldquoforeignizationrdquo very clearly if we wish to understand precisely what is involved
in effecting cultural transfer Whether a translation exhibits domestication or
foreignization can only be determined where the context reveals cultural asymmetry
and is examined as such12 In other words it is only when directly confronted with the
problem of translating a culture-specific item that the translator has to make a choice
between the two strategies A common misunderstanding is that the translator is
always engaged in make such a choice even when translating items that are not
culture-specific Consider the translation of the two English terms ldquoInternetrdquo and
ldquoSarsrdquo into Chinese For each term we can have at least two translations yinte wang
(英特網) and hulian wang (互聯網) for ldquoInternetrdquo shashi (沙士) and fei dianxing
xing feiyan (非典型肺炎) for ldquoSarsrdquo It is interesting to note that the linguistic
formation of the translated terms yinte wang (英特網) and shashi (沙士) may seem
ldquoforeignrdquo to the Chinese reader and hence are considered as ldquoforeignizedrdquo terms
However both ldquoInternetrdquo and ldquoSarsrdquo are terms which represent non-culture-specific
concepts ldquoyinte wang (英特網) and shashi (沙士) differ from hulian wang (互聯網)
and fei dianxing xing feiyan (非典型肺炎) only in that they are transliterations rather
12 In an attempt to define translation strategy Kwiecinski (2001) provided a rather comprehensive
definitionldquohellip translation strategy hellip may be definedhellipas a textually manifest norm-governed
intersubjectively verifiable global choice of the degree in which to subscribe to source-culture or
target-culture concepts norms and conventionrdquo (p 120) Despite the complicated modification of the
word ldquochoicerdquo one thing we could see clearly is that translation strategy always involves a choice in
relation to culture-specific elements
TRANSLATION AS CULTURAL TRANSFER
38
than semantic translations a difference solely in translation technique The question
of whether this is foreignization simply does not arise here Likewise hulian wang
(互聯網) and fei dianxing xing feiyan (非典型肺炎) though readily comprehensible
in their linguistic form are not cases of domestication because no foreign culture is
involved here Put differently whether a translation is a case of domestication or
foreignization cannot be determined by the naturalness or foreignness of its linguistic
form alone
So what do we actually do as translators when we come across culture-specific
items If we choose to domesticate we just need to find an item in the target language
as a linguistic substitute leaving the target language as it is For example translating
the English idiom ldquothere is no smoke without firerdquo into wufeng buqi lang (無風不起
浪) (no waves without wind) actually replaces the English idiom with a similar one in
Chinese both mean that there must be a reason for the result No linguistic and
conceptual adjustment on the part of the target language is required Any peculiarity
in this way of expressing causality in English is no longer discernible in the
translation ie the cultural meaning of the source language has been domesticated or
naturalized
In contrast to foreignize means to import the source culture into the target
culture This can be achieved in two ways One is to foreignize at both the linguistic
and conceptual levels ie calling on the target language to make both linguistic and
conceptual adjustments Take the example of the English translation of the Chinese
term li (禮) one of the key concepts in Confucianism When it is translated as li (禮)
using the technique of transliteration (direct borrowing) it evidently introduces to the
target reader a new linguistic form Adjustment also needs to be made on the
TRANSLATION AS CULTURAL TRANSFER
39
conceptual level so that the English reader can understand the cultural meaning of the
coined English term li in the light of Confucianism The other way is to foreignize
only at the conceptual level ie without involving any linguistic adjustment In the
same example when li (禮) is translated as ldquomoralityrdquo ldquoproprietyrdquo or ldquoritualrdquo the
translator uses an existing English word as its equivalent However when the
translator makes it clear to the English reader that ldquomoralityrdquo ldquoproprietyrdquo or ldquoritualrdquo
should not be understood in their usual senses in English but should be re-defined and
understood with reference to Confucianism an intention to foreignize is revealed We
can see that in either case conceptual adjustment is a must while linguistic adjustment
is not really essential However there are as will be shown cases when where a
particular linguistic structure in the source text may embody the culture of the source
language In such cases the translator has to preserve the linguistic features of the
source text and linguistic and conceptual adjustments of the target language are
required In a nutshell cultural transfer as foreignization requires the translator to
import the culture-specific elements into the target culture regardless of whether the
foreignness is reflected in the linguistic form of their translations The discussion
above only serves as a simplified model for discussing the theoretical framework of
effecting cultural transfer we will introduce It will be elaborated further in the next
section
It is now clear that ldquocultural transferrdquo when employed to characterize translation
as a socio-cultural activity rather than a mere act of linguistic recoding has in fact
been understood in two diametrically opposite senses On the one hand it has been
taken to mean the mapping of the cultural elements of the source text onto their
functional equivalents in the culture of the target text an approach which aims to
facilitate cross-cultural communication without making any linguistic or conceptual
TRANSLATION AS CULTURAL TRANSFER
40
adjustment on the part of the target text by way of domestication On the other hand
the term ldquocultural transferrdquo has also been taken to mean the importation of the source
culture into the target culture an approach which requires linguistic and conceptual
adjustments on the part of the target language
22 Legal Translation as Cultural Transfer
221 Legal Transplant and Legal Translation
The tree transplanting metaphor that Vermeer uses to illuminate translation
studies has a close counterpart in studies of comparative law namely legal transplant
which according to Alan Watson (1974 p 21) is ldquothe moving of a rule or a system
of law from one country to another or from one people to anotherrdquo And interestingly
enough just as there is a perennial debate in translation studies over the translatability
of law there is one in comparative law over the transplantability or transferability of
law
Legrand a strong opponent of the whole idea of legal transplant contends that
the word ldquotransplantrdquo itself already implies its impossibility
To ldquotransplantrdquo according to the Oxford English Dictionary is ldquoto remove and repositionrdquo ldquoto
convey or remove elsewhererdquo ldquoto transport to another country or place of residencerdquo
ldquoTransplantrdquo then implies displacement For the lawyerrsquos purposes the transfer is one that
occurs across jurisdictions there is something in a given jurisdiction that is not native to it and
that has been brought there from elsewhere What then is being displaced (1997 p 111)
TRANSLATION AS CULTURAL TRANSFER
41
For Legrand law is not simply ldquobare propositional statementsrdquo which can travel
across jurisdictions and can be understood without regard to ldquohistorical factors and
habits of thoughtsrdquo (Ibid p 113) Instead propositional statements work together with
their invested meaning to jointly constitute ldquorulesrdquo (Ibid pp 116-17) But because a
legal rule is culture-specific it is bound to be understood differently when integrated
into another legal system (Ibid p 117) Thus ldquoas the understanding of a rule changes
the meaning of the rule changes And as the meaning of the rule changes the rule
itself changesrdquo (Ibid p 117) Legrand remarks
In the words of Eva Hoffman lsquo[i]n order to transport a single word without distortion one would
have to transport the entire language around itrsquo13 Indeed lsquo[i]n order to translate a language or
a text without changing its meaning one would have to transport its audience as wellrsquo14 hellip
So the transplant does not in effect happen a key feature of the rulemdashits meaningmdashstays
behind so that the rule that was lsquotherersquo in effect is not itself displaced over lsquoherersquo hellip Meaning
simply does not lend itself to transplantation There always remains an irreducible element of
autochthony constraining the epistemological receptivity to the incorporation of a rule from
another jurisdiction15 therefore limiting the possibility of effective legal transplantation itself
The borrowed form of words thus rapidly finds itself indigenized on account of the host culturersquos
inherent integrative capacity (Ibid p 118)
hellip
[So] [a]t best what can be displaced from one jurisdiction to another is literally a meaningless
form of words To claim more is to claim too much In any meaning-ful sense of the term lsquolegal
transplantrsquo therefore cannot happen No rule in the borrowing jurisdiction can have any 13 Original note 16 Eva Hoffman Lost in Translation (Minerva 1991) at 175 14 Original note 17 Ibid at 272 15 Original note23 Eg FSC Northrop lsquoThe Comparative Philosophy of Lawrsquo 45 Cornell Law Quarterly (1960) 617 at 657 lsquoin introducing foreign legal and political norms into any society those norms will become effective and take root only if they incorporate also a part at least of the norms and philosophy of the native societyrsquo
TRANSLATION AS CULTURAL TRANSFER
42
significance as regards the rule in the jurisdiction from which it is borrowed This is because as it
crosses boundaries the original rule necessarily undergoes a change that affects it qua rule The
disjunction between the bare propositional statement and its meaning thus prevents the
displacement of the rule itself (Ibid p 120)
Legrandrsquos argument is simply this Anything culture-specific cannot be transplanted
from one culture to another without change Law as underpinned by its rules is
culture-specific Therefore law cannot be transplanted from culture jurisdiction to
another without change The impossibility of legal transplant also entails the
untranslatability of law A text of law when translated from one culture jurisdiction
to another will no longer preserve the meaning of the original text ie it is not the
text of the same law just as in Vermeerrsquos botanical metaphor the text was not be the
same as before16
In response to Legrandrsquos criticism Watson (2006) makes two points which are
relevant to the present study and worth discussing at some length First taken to the
extreme no word means exactly the same even for people who speak the same
language in the same country ldquoBreadrdquo for a poor village housewife does not have the
same meaning as for the wealthy Parisian businessmen (p 2) The same is true for law
within the same country Watson gives the following example
16 In an attempt to avoid the difficulties inherent in the transplant metaphor Langer (2004 pp 32-35)
used translation as a metaphor to explain the circulation of legal ideas rules practice and institutions
First it retains the comparative dimension as it distinguishes between the source text and the target text
of the law Secondly it can explain the loss of meaning Thirdly it can explain the transformation
which the source legal system undergoes as a result of its exchange with the target legal system
Finally it can explain ldquothe transformation which the linguistic and social practices of the target legal
system undergo under the influence of the translated text While these are valid points they cannot
resolve the transplantability problem because the translatability of law is the question at issue here
TRANSLATION AS CULTURAL TRANSFER
43
The possession of cocaine is hellip illegal That means one thing to the petty dealer who sees it as
his sole hope of escaping from his ghetto quite another to the recreational user quite another to
non criminals who live in the same street as the gangs quite another to law enforcement officers
It is banal to notice that the same legal rule operates differently in two countries it operates to
different effect even within one (p 2)
The point he makes here is a valid one Since we cannot say that a legal rule always
remains the ldquosamerdquo within a single jurisdiction we are even less entitled to speak of
its remaining the it is ldquosamerdquo transplanted from one jurisdiction to another
Secondly legal transplant does not preclude different interpretations of the
transplanted law Watson remarks
hellip where a written statutory law is the same within two countries its judicial interpretation may
well differ because of tradition and ways of legal thinking hellip But it is no rare thing for
academics to notice and pass on to practitioners the nature of these differences The very fact
that the statutory rule is the same may well cause legal thinking on it in different countries to
converge
I think I have no need to stress that I have long held that a transplanted rule is not the same
thing as it was in its previous home17 Nor need I stress my long-held view that it is rulesmdashnot
just statutory rulesmdashinstitutions legal concepts and structures that are borrowed not the lsquospiritrsquo
of a legal system Rules institutions concepts and structures might almost be termed tangibles
can easily be reduced to writing and are accessible (pp 2-3)
17Original note 4 See most recently Alan Watson La Out of Context Athens GA 2000 p 1
TRANSLATION AS CULTURAL TRANSFER
44
Watson then goes on to cite from legal history examples of legal transplants on a
grand scale (pp 4-8) which we need not consider for our present purpose The point
that needs stressing is that even though the transplanted law is likely to be given a
different interpretation recognition of the difference may still lead to convergence
Law is of course culture-specific Yet a good part of it is embodied in language It is
through translation that the law of a country is made accessible to other cultures And
as history has shown translation has been a major channel of cultural transfer
However there are many who while conceding that the aspects of law
mentioned by Watson are transplantable through translation the cultural significance
of law is not For instance Hiller contended
During the colonial period language from a British statute was imported into many of its
colonies18 whereby it was a crime for any person ldquobeing armed and having his face
blackened hellip (to) appear in any forest hellip or in any high roadrdquo under a wide variety of stated
circumstances The offence was ostensibly designed to deal with poachers and similar
wrongdoers Arming andor blackening onersquos face was enough to constitute a capital crime in
Britain19 The obvious cultural significance would have been lost in translation The language
would have been rather absurd in an African or Asian setting (1978 pp 157-58)
18 Original note 16 For example the Nigerian Criminal Code Cap 43 sec 417 (e) makes it a felony
for a person to have ldquohis face blackened with intent to commit a felonyrdquo Similarly see Kenya
Penal Code Cap 63 Sec 308 (3) (a) and Uganda Penal Code Cap 106 Sec 285 (1) (e) 19 Original note 17 George I c 22 (emphasis added) The statute enacted in 1713 became known as
ldquoThe Waltham Black Actrdquo simply as ldquoThe Black Actrdquo For a fascinating discussion of the Act see E
P Thompson Whigs and Hunters The Origin of the Black Act New York Pantheon Books 1975)
The Act is reproduced in full in Appendix I of the book
TRANSLATION AS CULTURAL TRANSFER
45
But what Hiller failed to see here is it is not the language that is absurd it is the
law (the ldquoBlack Actrdquo as it is called) When translated into an African or Asian
language the legal meaning of that law is not lostmdashthe person who understands its
translated version knows exactly what it prohibits but finds it absurd as he lives in a
country where hunting is a main source of food Indeed he does not understand why
there is such a law in his country If he is educated enough he may find out the reason
from a book on the history of English law Yet he may still not understand why such a
law is imposed on his people There may be a whole lot of whyrsquos he asks But one
thing he understands is If he does not want to get into trouble with the law he must
not blacken his face and appear in a forest or on a highway with a weapon If the
translation makes him understand that it has done what it is supposed to do
The Black Act was of course culture-specific enacted to address a particular
problem in England But this historical fact does not in any way render it
untranslatable into an African or Asian language Suppose its Chinese translation
reads ldquo任何人不得塗黑臉孔 攜帶武器出現在樹林中或公路上rdquo The translation
says what the Act says The ldquocultural significancerdquo which Hiller did not see in the
translationmdashlost in the translationmdashis not part of what the Act says This is a point
Hiller seems to concede But he goes on to say
hellip [T]ranslationmdashno matter how accuratemdashis not an adequate solution to the problem of
transferability of law The reason lies in the facts that both law and languages are carriers of
culture and that each culture has its own integrity and internal consistency20 These are the
20 Original note 20 ldquoWe may figure the task of the judge if we please the task of a translator the
reading of signs and symbols given from without None the less we will not set men to such a task
unless they have absorbed the spirit and have filled themselves with a love of the language they must
TRANSLATION AS CULTURAL TRANSFER
46
reasons not only why an imported law or institution will not work in the importing country the
way it did in the exporting country21 but more importantly why the importation of foreign
elements into a culture will lsquoskewrsquo the receiving culture in profound ways hellip (pp 158-59)
The successful transplant of a foreign law is of course not solely dependent on an
accurate translation Whether a foreign law can work in the importing culture or not is
a socio-cultural problem not a translation problem Translation can only do what it
can do It can only render a foreign law comprehensible to people of the importing
culture So we can well agree with Hiller that translation ldquois not an adequate solution
to the problem of transferability of lawrdquo Here ldquotransferabilityrdquo means ldquosuccessful
transplantrdquo not ldquosuccessful communicationrdquo While successful transplant requires
successful communication as a pre-condition translation alone cannot transfer the
socio-cultural conditions of a foreign law to the importing culture and makes it work
there The kind of transfer translation effects is linguistic and conceptual not
substantive
222 Translating the Common Law into Chinese as Cultural Transfer
When Hong Kong became a British colony in 1842 the British brought along a
whole lot of ldquoculture-specificrdquo things tangible and intangible of which the common readrdquo B N Cardoro The Notes of the Judicial Process (New Haven Yale University Press 1923) p
174 21 Bob Seldman stresses for example why we cannot assume that every properly socialized person will
know the law if that law is a product of a foreign system On ignorantia juris generally see R B
Seldman supra note 4 at 689 He says by way of illustration ldquoHowever well the system for the
promulgation of laws may work in England it may not and does not work adequately in Africardquo Id at
697
TRANSLATION AS CULTURAL TRANSFER
47
law was one Surprisingly enough it did not seem to occur to Legrand or Watson that
legal transplant as in the case of Hong Kong could pre-empt many of the questions
that triggered their long debate First the transplant was not from one jurisdiction to
anothermdashit was carried out within the same common law jurisdiction as Hong Kong
became a common law jurisdiction the moment the British flag was hoisted (or legally
even earlier) Second for nearly a century and a half the law was in the same
language as its home state namely English Third the law was administered and
practised by professionals from its home state or from other common law
jurisdictions or from the local community who spoke and were trained in the same
language of the law In a word except for some adaptations in areas such as marriage
and succession the common law was transplanted to Hong Kong en bloc Thus the
legal culture however estranged it was from the majority of citizens who were
Chinese-speaking was unmistakably a common law culture
The translation of the common law into Chinese was therefore by no means
carried out in an alien culture from the outset Rather it was carried out in the
transplanted culture of the common law There was no sharp distinction between
source and target cultures in the first place
Under the bilingual legislation system of Hong Kong the English text and its
Chinese counterpart must fulfill two conditions First they must have equal legal
status Second they must convey the same legal meaning The first condition must be
and was in fact met by legislative measures22 However how the second condition
can be met is still not clear to many translation scholars and practising law translators
22 The Interpretation and General Clauses Ordinance (Cap 1) was amended in 1987 to accord both
language texts of the law equal legal status
TRANSLATION AS CULTURAL TRANSFER
48
Some like Snell-Hornby have contended that equivalence in meaning is a chimera
an illusion or an unattainable goal Thinking along the line of Vermeerrsquos skopos
theory we have a definitive purpose here whatever we do and however we do it the
Chinese text must convey the same legal meaning as the English text in other words
the two texts must be equivalent in legal meaning If equivalence were indeed an
illusion then no multilingual legal system would be viable
Let us now re-examine the goal of legal translation now that we have a clearer
notion of cultural transfer in mind Legal translation is certainly among the varieties
of translations where the translator is subject to stringent semantic constraints at all
levels due to the peculiar features of the language of English law on the one hand and
the culturally mediated nature of legal discourse on the other To maintain the
authenticity of the law the cultural concepts which are specific to the original legal
system could not be replaced by functionally equivalent concepts of the Chinese
language Thus cultural transfer by way of domestication is not appropriate in legal
translation The authoritative status of legislation dictates that the goal of legislative
translation is to reproduce a legal text in the target language which conveys the same
legal meaning as the source text It requires the legal translator to adjust the target
language in such a way that the legal meaning of the source text could be expressed
by the target language Cultural transfer as foreignization is best exemplified in the
translation of a particular legal system from one language to another in the present
case the translation of the common law into Chinese
While Hong Kong ceased to be a British colony on July 1 1997 it has been
allowed to retain English law under Chinarsquos policy of ldquoOne Country Two Systemsrdquo
The laws previously in force namely the common law rules of equity ordinances
TRANSLATION AS CULTURAL TRANSFER
49
subordinate legislation and customary law together with the use of English as an
official language have been preserved under the Basic Law of the Hong Kong
Administrative Region
As has been noted the authoritative status of legal texts requires that the goal of
legal translation is to reproduce a legal text in the target language which has the same
legal meaning as the source text Regarding this Roebuck and Sin (1993) defined the
goal of translating the common law into Chinese 23
In attempting to create in Chinese an authentic version of a Common Law rule or principle it
is essential that the Chinese express exactly the same message as the original rule in English
insofar as its meaning is prescriptive (p 193)
23 Sin (1992) set out some basic conditions for the semantic equivalence in translating the Common
Law into Chinese in terms of bilingual legislation
All discussion about semantic equivalence will become futile if we do not focus on the aspect or
aspects of meaning relevant to a particular purpose So we can now define semantic equivalence
between two legal sentences in the following way
(1) Semantic equivalence = sameness in meaning with reference to the relevant
aspect(s)
(2) A sentence S in Language L is = S and Srsquo have the same meaning with reference to the
semantically equivalent to a relevant aspect(s) and S and Srsquo have the same
sentence Srsquo in Language L reference scheme
(3) The legal meaning of a sentence S = The prescriptive value of S
(4) A sentence C of the Chinese version = C and E have the same prescriptive value ie they
of the Common Law has the same prescribe the same behavior under the same
legal meaning as a sentence E of the behavior under the same circumstances and
English version of the Common Law conditions
(5) A sentence C in the Chinese version of the law is semantically equivalent to a sentence E in
the English version if and only if whatever interpretation given to E by the court is given to C (pp
96-99)
TRANSLATION AS CULTURAL TRANSFER
50
Sin (1998) pointedly voices the dilemma that the legal translator faced in seeking to
achieve such a goal
The tension between the translatorrsquos paramount duty to represent the law with
uncompromising accuracy on the one hand and the strong desire of the public to have the law
communicated to them in clear language on the other was deeply felt hellip It is a perennial
tension between the polarity of the two extreme approaches to translation characterized by
Schleiermacher (181342) ldquoeither the translator leaves the writer alone as much as possible
and moves the reader toward the writer or he leaves the reader alone as much as possible and
moves the writer toward the readerrdquo (p203)
Thus the inherent difficulties of the translation of the common law into Chinese
present a highly relevant case for our discussion of cultural transfer as foreignization
As a matter of fact cultural transfer as foreignization is not a novel idea in the
history of translation in China The translation of Buddhist scriptures is a much cited
paradigm of foreignization Although Buddhism became a popular religion in China
it originated in India and was unknown to the Chinese before the middle of first
century The translation of Buddhist scriptures into Chinese began in the Han dynasty
Many Buddhist concepts were new to the Chinese and there were no Chinese terms
expressing Buddhist concepts Xuan Zhuang (玄奘) the most influential figure in the
translation of Buddhist scriptures developed important translation techniques like
amplification omission borrowing and transliteration all effective methods to
introduce Buddhist foreign concepts into Chinese 24 Linguistic adjustments for 24 Xuanzhuangrsquos theory of the Five Untranslatables (五種不翻) or five instances where one should
transliterate (1) Secrets tuoluoni 陀羅尼 a Sanskrit curse (2) Polysemy baojia 薄伽 for a Sanskrit
word that has 6 meanings comfortable flourishing dignity name lucky esteemed (3) None in China
TRANSLATION AS CULTURAL TRANSFER
51
conceptual assimilation were made and with the gradual integration of the translated
texts into the Chinese language Buddhist concepts have now become an inseparable
part of Chinese culture This would not have happened if the domestication approach
had been adopted for the obvious reason that domestication would have turned
foreign Buddhist concepts into indigenous Chinese ones leaving Chinese culture
intact without incorporating Buddhism Examples of foreignization abound in the
history of translation not only in China but also in other parts of the world Whenever
a culture is transferred from one language to another there is always a need for
conceptual adjustment which invariably results in the foreignization of the importing
language The translation of the common law into Chinese is simply one such case
223 Metalinguistic Devices and Cultural Transfer in Legal Translation
As has been noted the primary aim of legal translation in the context of bilingual
and multilingual legislation is to prepare different language versions of one and the
same law This means that they must convey the same legal meaning Thus semantic
equivalence is presupposed by all bilingual and multilingual legislation systems
The term ldquoequivalencerdquo has been used in the literature to define successful
translation or to describe the ideal result of translation 25 and the concept of
yanfu tree 閻浮樹 a kind of tree that does not grow in China (4) Deference to the past Anouputi (阿
耨菩提) for a special kind of knowledge This transliteration is an established usage (5) To inspire
respect and righteousness banruo 般 若 (Prajna) instead of ldquowisdomrdquo ( 智 慧 )
(httpenwikipediaorgwikiChinese_Translation_Theory accessed on May 5th 2007)
25 Various definitions of translation given by translation theorists based on the notion of
ldquoequivalencerdquo are as below
TRANSLATION AS CULTURAL TRANSFER
52
equivalence has been variously defined in terms of functional equivalence conceptual
equivalence semantic equivalence formal equivalence dynamic equivalence lexical
equivalence syntactic equivalence textual equivalence and pragmatic equivalence
Since legal translation is primarily concerned with the translation of legal concepts it
is ldquoconceptual equivalencerdquo or ldquosemantic equivalencerdquo (sameness in legal meaning)
that we have to achieve Conceptual equivalence requires that different language
versions of the law must convey the same legal concept(s) in question Doubts have
been raised as to whether conceptual or semantic equivalence can be achieved If it
could be shown that semantic equivalence cannot be achieved then all bilingual and
multilingual legislation systems would be groundless Thus it is of paramount
importance in legal translation that semantic equivalence can be shown to be possible
Language can be viewed as a system of symbols codes or signs As is well
known Saussurersquos dualism of the signifier (sound image or the word) and the
signified (concept) was developed by Peirce by way of a triadic relationship of the
sign and subsequently by Ogden and Richards by way of the semantic triangle26
According to the semantic triangle words are the means of representing concepts in a
Translation may be defined as follows the replacement of textual material in one language (SL)
by equivalent material in another language (TL) (Catford 1965 p20)
Translating consists in reproducing in the receptor language the closest natural equivalent of the
source-language message (Nida and Taber 1969 p12)
[Translation] leads from a source-language text to a target-language text which is as close an
equivalent as possible and presupposes an understanding of the content and style of the original
(Wilss 1982 p62) 26 The Semantic Triangle is a model showing the relationship between the words the concepts and the
referents that words represent The semantic triangle by adding ldquoreferentrdquo to Saussurersquos dualism of
word and concept contains three elements (a) symbol (signifier)mdashword being perceived (b) reference
(signified)mdashthe concept of what being perceived (c) referent (object)mdashthought or thing being
perceived
TRANSLATION AS CULTURAL TRANSFER
53
language no matter whether such a concept is directly coupled with a referent in
reality or not In other words any word has a referent in reality however indirectly
and all concepts can be described by their manifestations in reality If a word refers to
a certain object directly perceivable in reality then we have a typical case of the
semantic triangle of word concept and referent If a word denotes an abstract concept
which has no direct referent in the physical world the referent in the semantic triangle
may not be directly perceivable in reality but still can be explained by means of
observable objects
Similarly the referents of legal concepts can be directly or indirectly described
by their manifestations in reality This is especially true due to the nature of the law
as Sin (1992) points out
Law is a set of rules which prescribe and regulate human behaviour Legal systems differ only
in the content but not in the nature of such rules hellip One important property of human behavior
is that it is publicly observable Accordingly all legal systems can be understood in the light
of human behavior observable in identifiable circumstances and conditions hellip Human
behaviour as well as the circumstances and conditions in which it is observed can be
described with sufficient precision in any language (p 95)
In legal translation the translated version should prescribe the same behaviour as
does the original version ldquonot only by virtue of its legal authority but also by virtue of
its legal meaningrdquo (Sin 1992 p 95) The translated version can acquire the same
legal meaning as the original version only when the legal meaning of the translated
version is construed in the light of the semantic reference scheme of the original
TRANSLATION AS CULTURAL TRANSFER
54
version Sin (1992) goes on to analyze the goal of legal translation in terms of
semantic equivalence
although no two texts in different languages are identical in all aspects of meaning semantic
equivalence hellip can still exist between them if they are compared with reference to the same
aspect of meaning hellip (and) should be defined in terms of sameness in legal meaning which is
evidently the most relevant aspect of meaning they should have in common (p 96)
One may still ask In what way can semantic equivalence be achieved in
translation when the languages in question do not contain concepts that are exactly the
same or when the meanings or concepts of the source language which we generally
refer to as cultural concepts are different from or even absent in the target language
The answer to this question can be found in Feyerabendrsquos (1987) insightful
observation on Evans-Pritchardrsquos translation of the Azande language When
translating the Azande word ldquombismordquo the translator decided to translate it as ldquosoulrdquo
in English but this is not the end of it The translator added that ldquosoulrdquo in English
implies life and consciousness while ldquombismordquo in Azande covers a collection of
public or ldquoobjectiverdquo events The significance of the translatorrsquos note is fourfold First
it draws attention to the fact that the use of the word ldquosoulrdquo in itself constitutes a
problem Second it makes the word ldquosoulrdquo more suitable for expressing what Azande
people have in mind Third it redefines an English notion to accommodate elements of
a new concept Fourth it effects conceptual change ie cultural transfer at the
metalinguistic level (pp 267-68) Feyerabend sums up all these points in a well
formulated general principle of translation ldquoSuccessful translations always change the
medium in which they occurrdquo (p 266) The importance of this principle can never be
overstated for it shows that any successful transfer of culture must change the
TRANSLATION AS CULTURAL TRANSFER
55
importing language and that such transfers must be effected at the metalinguistic
level
The concept of metalanguage is not new in translation studies 27 Before
Feyerabend Roman Jakobson had pointed out that the metalinguistic function was
one of the major functions of language He noted
A faculty of speaking a given language implies a faculty of talking about this language Such a
lsquometa-linguisticrsquo operation permits revision and redefinition of the vocabulary used cognitive
experience and its classification is conveyable in any existing language Whenever there is
deficiency terminology may be qualified and amplified by loanwords or loan-translations
neologisms or semantic shifts and finally by circumlocutions (Quoted in Chesterman 1989 p
56)
As can be seen even if the concept a certain word designates exists in one
language but not in another the referent (direct or indirect) the word and concept
stand for can always be replaced by a word in another language by way of linguistic
adjustment28 in the form of a loan word a descriptive phrase or a newly coined word
In the case of translation the various metalinguistic devices adopted by the translator
27 Gombert (1992 p 1) discussed the definition of the term metalanguage
In a more general sense the word metalanguage is used to refer to the language where natural or
formalized (as in logic) which is itself used to speak of a language More precisely as
Benveniste (1974) emphasizes this word refers to a language whose sole function is to describe
a language 28 In this study we use the concept of ldquoformrdquo only in the sense of ldquolinguistic formrdquo that is as the form
of a language sign in opposition to its meaning As meaning is the property of a language which is
manifested through language and embodied in language For any existing language sign there are two
sides of it the form and the meaning of it
TRANSLATION AS CULTURAL TRANSFER
56
are often explicitly stated in hisher explanatory notes And it is at the metalinguistic
level that conceptual semantic equivalence is achieved A word in the target
language is defined as the equivalent for its counterpart in the source language29 That
is to say two different signs are made to denote one and the same concept
Thus understood foreignization is simply a metalinguistic operation whereby
cultural transfer is effected In this study conceptual semantic equivalence is not
understood as the one-to-one correspondence between languages which is absent as
languages stand but as a semantic relationship at the metalinguistic level Put simply
conceptual semantic equivalence is not found but created It results from a most
common-or-garden metalinguistic operationmdashmaking two things stand for one and
the same concept It should now be clear how different language texts produced by
translation can convey the same legal meaningmdashthey are simply made to do so
29 In trying to solve the problem of translation equivalence Neubert postulates that from the point of
view of a theory of texts translation equivalence must be considered a semiotic category comprising a
semantic syntactic and pragmatic component following Pierces categories These components are
arranged in a hierarchical relationship where semantic equivalence takes priority over syntactic
equivalence and pragmatic equivalence conditioning and modifying both the other elements
Chapter 3
The Concept of Legal Culture in Legal Translation
31 Previous Studies of Legal Culture
311 Law and Culture
Since cultural transfer as foreignization is best exemplified in legal translation it
will be helpful here to explore the concept of legal culture with practical reference to
the translation of the common law into Chinese The study is not confined to the
complete comprehension of a legal discourse which contains unstated legal
conventions (cultures) embedded deep in the linguistic form It concerns itself more
with how unstated legal elements can be transferred in legal translation If legal
culture is taken to mean culture in relation to law then gaining insight into the
concept of legal culture will enable us to understand the relation between culture and
law
The concept of culture is plagued with definitional problems A number of
anthropologists have offered useful accounts of the concept of culture Raymond
Williams Culture and Society (1961) is often credited with helping to instigate what
is now known as cultural studies In an attempt to identify the concepts and
definitions of culture the eminent anthropologists Alfred Kroeber and Clyde
Kluckhohn (1963) approached culture as a traditional crystallization with traditional
values at the centre of the culture Next translation theorist Peter Newmark (1988)
gave a rather comprehensive definition of culture ldquoas the way of life and its
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 58
manifestations that are peculiar to a community that uses a particular language as its
means of expressionrdquo (p 94)30 Legal scholar D J Black (1976) defined culture as
ldquothe symbolic aspect of social life including expressions of what is true good and
beautifulrdquo (p 61) It encompassed such things as ldquoideas about the nature of realityrdquo
ldquoconception of what ought to bersquo and ldquoaesthetic life of all sortsrdquo (p 61) For Black
culture included all kinds of ideas concepts and beliefs as manifested in language
behaviour and lifestyle A more recent definition from Bates and Plog (1990) states
that culture is ldquothe system of shared beliefs values customs behaviours and artifacts
that the members of society use to cope with their world and with one another and
that are transmitted from generation to generation through learningrdquo (p 7)
Law is just one part of culture that actively contributes in the composition of
social relations Sarat and Kearns (1999) pointed out that ldquowith the growing attention
to legal consciousness and legal ideology in socio-legal studies legal scholars have
come regularly to attend to the cultural lives of law and the ways law lives in the
domains of culturerdquo (p 5) Black (1976) defined law as ldquogovernmental social
controlrdquo Social control was in turn defined as ldquoresponse to deviant behaviourrdquo of
every kind including ldquolaw etiquette custom ethics bureaucracy and the treatment of
mental illnessrdquo (p 9) The concept of law occupies a central place in Blackrsquos theory
In his view the grown tree of cultural tradition imposes core legal meanings that can
be traced down to historical roots Conventionally the study of law with relation to
culture is the study of a complex whole which includes knowledge belief art morals
30 Newmark further classified culture into five categories Ecological culture such as plants animals
winds landscape etc material culture such as food clothes transport etc social culture such as work
and leisure culture of organizations customs activities procedures concepts and culture of gestures
and habits (p 83)
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 59
legal custom and any other capabilities and habits acquired by man as a member of
society
Previous studies of legal culture have thus exhibited multiple perspectives and
approaches Research interests in legal culture arise mainly from inter-disciplinary
studies especially comparative law and social science although the range of subjects
judged relevant to the concept of legal culture varies from study to study Because
sociologists comparativists and other theorists have very different ideas about what
constitutes ldquolegal culturerdquo many different views and practices are subsumed under the
same concept It is a concept that is frequently employed as a convenient cover term
for a large number of phenomena the general status of law in a society specific
structures of law opinions with regard to law by the general public or legal
professionals particular practices or behaviours of legal institutions or legal
professionals Legal culture has often been analyzed in its relation to particular
countries and legal systems There is an extensive literature on the legal culture of
specific countries In addition there are numerous works (especially works by
scholars of comparative law) discussing and analyzing the distinctive characteristics
and cultures of the two main legal systems the civil law and the common law31 The
concept of legal culture seems to be an all encompassing referential and explanatory
instrument for all relevant theoretical studies As is the case with the concept of
culture a common understanding of legal culture seems impossible to achieve In
31 Scholars of comparative law may be in a better position to analyze different legal cultures between
civil law and the common law if they acknowledge the fundamental and profound distinctions between
these two major legal traditions There is an inclination to treat them as homogenized in spite of the
fact that they operate in different jurisdictions The characteristics of the common law and civil law
have often been discussed with special reference to the development of legal tradition again a process
of crystallization
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 60
addition it is hard to engage in any analysis without asking ldquolegal culture in what
sense of the term or in relation to what kind of research subjectrdquo Therefore instead
of falling into the trap of defining legal culture as some kind of unitary force we
intend to describe and analyze the substantive contents that constitute the culture of
law with regard to legal translation studies We will begin with a review of how the
concept of legal culture has been conceived in previous studies
Since the notion of culture is hard to define due to its multifarious interpretations
in the literature there is no standard definition of culture However many scholars
accept the postulates provided by Bates and Plog (1990) as a working version Culture
is thus defined here sociologically as the typical ways of living built up by a people
including the beliefs and attitudes which support them Culture under such a
treatment finds its expression on two levels (1) shared beliefs and values conceived
by particular members of society and (2) the customary behaviours they practice
Studies relating to legal culture cover many aspects and it is not necessary for our
present purpose to give a comprehensive account of all those extended explorations
Rather we need is to isolate the variables that legal culture can refer to and then to
identify among these variables which sense of legal culture legal translation has to
deal with Some of the major variables for this concept of legal culture are
- Shared attitudes values and opinions (Friedman 1975 p 76)
- Legal ideology (Cotterell 1997 p 22)
- Shared norms and modes of thinking (Ginsburg 2003 p 1337 )
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 61
- Legal studies legal education and legal theory addressing legal conceptions
policies and reasoning and education (Atias 1986 pp 1118-9 )
- Legal reasoning that cultivated a series of principles of the case law (Atiyah
(1987 p 323)
- Legal principles best represent the spirit of rule of law (Kuan 1997 pp
187-205)
- Attitudes and beliefs lie in legal tradition (Pound1937 Merryman 1985)
- ldquoLaw in bookrdquo ldquolaw in actionrdquo ldquoelite legal consciousnessrdquo and ldquolegal
behavioursrdquo (Blankenburg amp Bruinsma 1994 pp 39 42)
- ldquoMentalitiesrdquo ldquomode of thinkingrdquo ldquothe method of reasoningrdquo and ldquolegal
trainingrdquo (Curran 1998 p 70)
As this list suggests the concept of legal culture in general discussions refers to
such varied elements that the variables mentioned need to be categorized if they are to
assist our further analysis Just as with culture in the broad sense the concepts of legal
culture discussed by scholars can be categorized in two ways Legal culture may refer
to peoplersquos conceptions of law alone or to both peoplersquos conceptions and their specific
practices of law32
32 To select a term that could best cover the numerous parameters in relation to the totality of peoplersquos
thought referred to in extensive studies by scholars from different disciplines we considered of
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 62
312 Legal Culture as Conceptions of Law
Viewing legal culture as conceptions widely held by people within a society
country or legal system theorists tend to concentrate on the thought-related
expression of legal culture In an attempt to bring out the idea that particular legal
systems operating in a social context have cultural and ideological presuppositions
and implications Friedman (1977) distinguished between ldquointernal legal culturerdquo and
ldquolay legal culturerdquo after giving his general definition of legal culture ie ldquoattitudes
values and opinions held in society with regard to law the legal system and its
various partsrdquo He observed that such ldquoattitudes values and opinionsrdquo could be
divided into two sets that of the ldquogeneral publicrdquo and ldquothat of lawyers judges and
other professionalsrdquo (p 76) For Friedman (1997) the concept of legal culture was a
useful way to categorize a range of phenomena in the field of law (p 33) This
position was first criticized by Cotterrell (1997) who held that it is impossible to
develop a concept of legal culture with sufficient analytical precision and that the
concept works more as an ideal than as a set of variables He basically rejected the
concept of legal culture as a way of identifying the exact relationship existing among
social phenomena such as characteristic institutions and patterns of thought and belief adopting the term ldquoideologyrdquo as proposed by Cotterrell (1997 pp 21-22) However the term
ldquoideologyrdquo has been notoriously tainted with political implications and is therefore misleading We thus
finally decided to use the more neutral and general term ldquoconceptionrdquo which serves our purpose of
generalizing the many variables pertaining to totality of thought (as distinct from totality of practice or
behaviour) that legal culture can refer to The definitions of ldquoconceptionrdquo in the OED online dictionary
are as follows (a) The action or faculty of conceiving in the mind or of forming an idea or notion of
anything apprehension imagination (b) The forming of a concept or general notion the faculty of
forming such pl Thoughts meditations courses of thought (c) That which is conceived in the mind
an idea notion (d) An opinion notion view (e) Something originated in the mind a design plan an
original idea (as of a work of art etc) a mental product of the inventive faculty (OED Online
Dictionary httpdictionaryoedcom accessed on August 2007)
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 63
He viewed the concept of legal culture as merely a convenient concept to ldquorefer
provisionally to a general environment of social practices traditions understandings
and values in which law existsrdquo (pp 21-22) Cotterrell thus preferred to use a more
specific notionmdashlegal ideology For him this represented legal doctrines ldquobeliefs
attitudes and valuesrdquo that ldquocan be translated into regulatory practicesrdquo (p 22)
Friedman (1997) contended that while vague and difficult to define there are many
fundamental concepts like ldquostructurerdquo or ldquosystemrdquo which constitute the building
blocks of social science (p 33) The concept of legal culture which he regarded as
falling into this class is useful for categorizing a range of phenomena in the field of
law (p 33) In reaction to Cotterellrsquos proposal to substitute the notion of legal culture
for that of legal ideology Friedman observed that legal ideology fell into his
classification of internal legal culture an aspect of culture that finds particular
resonance with scholars and legal professionals many of them have attached great
importance to ldquolegal ideologyrdquo especially legal doctrines (p 38) Friedman then
pushed the centre of his study of legal culture to what he called ldquolayrdquo legal culture (p
39)
Following Friedmanrsquos dichotomy between external and internal legal culture
Ginsburg (2003) noted that legal culture as characterized by legal scholars could be
defined in two ways On the one hand legal culture could be viewed in terms of its
intimate association and active interaction with a social and national culture
(Friedmanrsquos external legal culture) On the other hand legal culture could be regarded
as the internal legal culture featuring the ldquoshared normsrdquo and mode of thinking of
legal professionals that resulted from their common training (p 1337) Farrar and
Dugdale (1990 p 246) preferred to confine the concept of legal culture to internal
legal culture since they shared Watsonrsquos view that ldquolaw is more an expression of the
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 64
culture of the lawmaking elite rather than that of society at large and that the variety
of interests and attitudes possessed by such elites may thwart attempts to generalizerdquo
Although Friedmanrsquos dichotomy of legal culture makes it easier to further explore the
nature of legal culture it is undeniable that an essential substance of any legal system
is the culture of the legal professionals
Atias (1986) observed from the perspective of American law that legal culture
had been a well received and commonly used term among American legal researchers
The notion of American legal culture itself however still lacked conceptual precision
and deserved ldquobetter treatmentrdquo In view of this he proposed that ldquothe notion of
traditional scholarly orderrdquo as a springboard for the study of the notion of American
legal culture (p 1122) Atias believed that legal culture was based on the rich history
of legal studies and legal education while legal studies encompassed various legal
theory addressing legal conceptions policies and reasoning and education (pp
1118-9) Cultural consistency and enrichment came from the progressive
sedimentation of continuous efforts jointly made by the legal profession especially
lawyers jurists and judges to uphold those legal principles that finally ldquosurvive the
most conclusive criticisms and preserve their appealrdquo (p 1134) Atias concluded that
ldquothe study of the legal culture is thus the study of its progressive and never finished
formationrdquo (p 1135) In similar vein Atiyah (1987) held that the legal culture of the
common law included legal reasoning that cultivated a series of principles of the case
law and consequently ldquoEnglish statute has traditionally been drafted in such detail that
it can be said to be a catalogue of rulesrdquo (p 323) As we shall see both legal theory
and legal reasoning are definitely a reflection of views and beliefs about law thus
putting law in a cultural context
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 65
In Mineshimarsquos (2002) view the notion of the rule of law was the foundation of
any given legal system or legal culture This notion was determined by the traditions
and attitudes such as the views on the role and functions of the state the law and the
legal system In other words legal culture consisted of the traditional attitudes
towards the role and functions of the state the law and the legal systems (p 74) Kuan
(1997) also considered the idea of rule of law as an integral part of legal culture She
held that the legal culture of the common law lay in the concept of the rule of law
which found its expression in various legal principles (pp 187-205) For her the
seven most important common law principles embodied in the concept of rule of law
were ldquono law no crime equality before law law binds the ruler judicial
independence inborn rights obligations over rights and presumption of innocencerdquo
(p 195)33
If legal culture is regarded as peoplersquos conceptions of law it is appropriate to
probe its historical roots and philosophical foundation to search out how and where
legal tradition comes into play thus affirming that legal tradition is the basis of legal
culture Pound (1939) highlighted the concept of legal tradition when comparing the
characteristics of the common law and civil law For him the legal culture of the
common law contained those distinct traits derived from its legal tradition Another
33 Kuan also incorporated Betty Tsursquos argument that ldquothe concept of the rule of law is represented by
three items nullum crimen sine lege exercise of arbitrary power by the police and equal opportunity
before the courtsrdquo (p 190) Kuan gave a more detailed description of the rule of law ldquothe rule of law
is deconstructed into four theoretical aspects legal freedom legal equality rights-based autonomy of
law and due process Legal freedom meaning freedom from arbitrary government is defined by the
principle of lsquono law no crimersquo Legal equality consists of two principles the general principle of
lsquoequality before lawrsquo and the specific principle of lsquolaw binds the rulerrsquo The complex aspect of legal
autonomy is expressed by three principles lsquojudicial independencersquo lsquoinborn rightsrsquo and lsquoobligations
over rightsrsquo The last aspect of due process is defined in terms of the principle of lsquopresumption of
innocencersquo (pp 202-03)
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 66
American comparativist Merryman (1985) gave legal tradition a more detailed
description ldquoa legal tradition (as opposed to a system) is a set of deeply rooted
historically conditioned attitudes about the nature of law about the role of law in the
society and the policy about the proper organization of the operation of a legal system
and about the way law is or should be made applied and studied perfected and
taughtrdquo (p 2) For Merryman the shared cultural traits of different legal systems have
their origin in legal tradition in other words legal tradition is what endows them with
those shared cultural traits In this sense legal culture comes from legal tradition
However many have contended that the difference between legal tradition and
legal culture is merely one of emphasis Legal tradition signifies a historical
perspective while legal culture refers more to the anthropological ethnic or
socio-political perspective of law As we shall see legal culture is regarded as
peoplersquos conception of law either in its contemporary manifestation or in its historical
growth ie legal tradition The term ldquolegal culturerdquo is concerned more with
theoretical or ideological opinions than with actual behaviours or practices
313 Legal Culture as Both Conceptions and Practices of Law
For other scholars legal culture not only refers to what is conceived in peoplersquos
mind but also to their behaviours and practices with respect to law In a comparative
research on differences between the common law and civil law Curran (1998)
acknowledged that there were fundamental differences between the common law and
civil law with respect to ldquomentalitiesrdquo ldquomode of thinkingrdquo ldquothe method of reasoningrdquo
and ldquolegal trainingrdquo that can be considered as composing elements of legal culture (p
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 67
70) Curran then analyzed the ldquoattributesrdquo that were ldquocharacteristic of common-lawrdquo
legal culture ldquobut uncharacteristic of civil-lawrdquo legal culture by observing that the
common law was ldquoa law defined in terms of past judicial decisionsrdquo and evolved with
the legal rules from ldquoprior judicial decisionsrdquo while the civil law attached more
importance to codification (pp 71-75) Curran also noted that ldquothe prominence of the
proceduralrdquo was another distinct feature in common law legal culture (p 81) Most
importantly common law legal professionals had been habitually skilful in ldquoreasoning
by analogyrdquo and produced ldquoan accumulated body of arguably similar and dissimilar
prior casesrdquo and ldquoconsequently statutory norms are lain on a Procrustean bed of
precedents even when they have never yet been subject to adjudication in the relevant
jurisdictionrdquo (p 83) Curran then concluded that ldquothe significance of the common law
thus resides in the case law even where the common-law court is applying a statute
and even where the statute is newrdquo (p 83)
Blankenburg devoted many years and much literature to the study of legal
culture Blankenburg amp Verwoerd (1988) observed that there were two conceptions of
legal culture One conception treated law as a system consisting of rules and
principles The other viewed legal culture not only as the above rules and principles
but also as the institutional practices attitudes and behaviour of legal actors (p 10)
Blankenbrug amp Bruinsma (1994) reinforced the above view in another study of Dutch
legal culture They identified Dutch legal culture at four levels (1) ldquolaw in booksrdquo (2)
ldquolaw in actionrdquo (3) legal behaviours such as litigation preferences and (4) ldquoelite legal
consciousnessrdquo (pp 13-14)34 In another comparative work Blankenburg (1998)
34 In giving a detailed description of ldquolaw in booksrdquo Blankenburg (1998) held that it ldquocomprises the
body of substantive as well as procedural law that is considered legally valid helliprdquo As for the concrete
substances of ldquolaw in actionrdquo Blankenburg (1998 p 13) claimed that it ldquois channeled by the
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 68
investigated the patterns of legal culture by comparing the legal institutions with those
of Germany He argued that legal culture was ldquocharacterized by indicators of
institutions as well as behaviourrdquo (p39) Acknowledging that the conception of legal
culture was a comprehensive one he extended Friedmanrsquos ldquooperational definitionsrdquo of
legal culture ie attitudes values and beliefs to ldquointerrelationship of various levelsrdquo
that were more suitable for comparative and descriptive studies (p 40) These levels
are (1) ldquopatterns of legal behaviourrdquo such as litigation behaviour (2) ldquopatterns of
legal consciousnessrdquo (3) patterns of institutional behaviour such as ldquothe legal training
the composition of the legal profession the organization of courts and the
infrastructure of access to themrdquo (p 41) Blankenburg held that patterns of legal
culture (the above three levels) could serve as indicators when comparing legal
cultures We can see that the above researchers are not satisfied with limiting the
concept of legal culture merely to conceptions of law held by people Moreover they
employ the concept of legal culture to refer to a wide range of phenomena such as
litigation preferences in a society the practice of legal training and education and
shared behavioural patterns among legal professionals For our present purpose we
will consider legal culture less as a universal value system that directs peoplersquos
actions and more as a variety of conceptual instruments for classifying attributes of
peoplersquos conceptions and practices We will additionally focus more on those aspects
of legal culture which have a direct bearing on our inquiry into legal translation
institutional infrastructure of the legal system Two important elements of this infrastructure are the
judicial court system and the legal profession In their shadow para-judicial institutions may be
substitutes for the formal court system and the legal profession helliprdquo (p 13)
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 69
32 Clarification of the Concept of Legal Culture
Concerning the actual relevance of legal culture to legal translation we would
like to note the following First despite the denunciation of translation as linguistic
transcoding in arguments for a culturally oriented approach against a linguistically
oriented approach in general translation theory (Snell-Hornby 1990 pp 79-85)
translation remains by nature an act of linguistic transcoding and the proposition of
translation as cultural transfer actually represents one pole of the interpretation of
cultural transfer in translation ie cultural transfer as domestication Secondly
cultural transfer as foreignization is best exemplified in legal translation since the goal
of legal translation is to reproduce a legal text in the target language which has the
same meaning as the source text while also transferring the legal culture of the source
text into the target language text The legal translator is bound to achieve semantic
equivalence in cultural transfer foreignization Thus concepts like linguistic
transcoding cultural transfer semantic equivalence and legal culture deserve serious
treatment as these notions with their interpretations determine how we think about
legal translation and also shape the specific theoretical framework we construct in the
special context of translating the common law into Chinese We earlier clarified the
concepts of linguistic transcoding cultural transfer and semantic equivalence and we
have just investigated the concept of legal culture and its various interpretations in the
previous section As we do not wish to generalize and make broad statements of legal
culture that might crumble under logical analysis we must now clarify the concept of
legal culture insofar as it relates intimately to legal translation
Let us first consider the process of legal translation illustrated by the following
diagram
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 70
(1) SL (Language of Source Legal Text) TL (Language of Target Legal text)
Legal culture
embedded in
source text
Transference of
the legal culture
Linguistic transcoding
Which
sense of legal
culture could
find
representation
in the source
legal text
-Legal ideology
-Legal studies legal education
and legal theory
-Shared attitudes values and
beliefs
-Shared norms and modes of
thinking
Variations of
the concept of
legal culture
in literature
Which
sense of legal
culture could
find
representation
in the target
legal text
ST
(Source
Text)
TT
(Target
Text)
Language of
the source
legal text
Language of
the equivalent
legal Text
(2) Assumed SC (Culture of the Source Text) SC (Culture of the Source Text)
Figure 32 Process of Legal Translation
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 71
The first plane depicts the process of linguistic transcoding where the legal translator
represents the source legal text with the equivalent legal text in the target language In
other words the two end products of legal texts should convey the same legal
meaning The second plane depicts the process of transferring the legal culture We
note that during the translation process what should be maintained intact is the
source legal culture This point is emphasized as it echoes with our previous
observation that cultural transfer as foreignization is the transfer of the source culture
into the target language instead of naturalizing the source culture with the
overwhelming conventions of the target culture Obviously enough what could be
transferred are the variables that have the most direct and intimate bearing on the
language of the source legal text since the process of foreignization is inseparably
bound up with the process of achieving conceptual semantic equivalence Resuming
our task of finding the legal culture embedded in source text we also ask in figure 32
which sense of legal culture could find representation in the legal text We recall that
the concept of legal culture as examined in the previous section is employed to refer
to a variety of objects that can be grouped into two major categories legal culture as
peoplersquos conceptions of law or as both conceptions and practices In legal translation
the legal translator is faced with the substantive legal textsmdashlaws in their written
form
Take the example of tort law in Hong Kong Although Hong Kongrsquos tort law has
its origin in English tort law some of the legal practices of judges and lawyers may
vary from other common law jurisdictions Legal professionals in Hong Kong may
share the same knowledge and belief in the law of tort ie ldquotort in booksrdquo but what is
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 72
the status of ldquotort in actionrdquo35 It is interesting to note that for example courts in
Hong Kong are reluctant to use actuarial evidence in the calculation of damages in the
tort litigation In consequence lawyers are also cautious on whether to provide
actuarial evidence in the court Such practice and behaviour by legal professionals
with regard to tort litigation in Blankenburgrsquos (1994 pp 13-4 amp 1998 pp 39-41)
view was also evidence of the legal culture However it is impossible for the legal
translator to deal with legal culture in that sense as the final encounter of the legal
translator is the legal textmdashthe source language that legal culture is embedded in
Lloyd (1964) thought that the great achievement of the human language especially
the language of law lay in its capacity to create ldquogeneral concepts which provide the
essential tools of human reflectionrdquo (p 285) In explaining the conceptual thinking in
the common law Lloyd remarked
For instance if we take the rules of the criminal law relating to such matters as murder and theft
it is quite true that these are in themselves legal concepts which only have meaning in the
context of legal rules which go to form a legal system We can only understand what is meant by
murder by acquainting ourselves with the legal constituents of this offence and how these
operate in the legal system hellip The law hellip needs to conceptualize these and other related ideas
much more precisely before it can operate a system of criminal law in a rational and systematic
way (pp 289-90)
As Farrar and Dugdale (1990 p 246) put it ldquolaw is more an expression of the
culture of the lawmaking elite rather than that of society at largerdquo the conceptual
35 Here we borrow Blankenburgrsquos idea We use the expression ldquotort in booksrdquo to refer to the body of
substantive and procedural tort law In similar vein we use the expression ldquotort in actionrdquo to
characterize the legal practice and behaviour of the judicial court system and the legal profession
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 73
thinking is that of legal professionals rather than that of the general public In
translating the law in books therefore the legal translator should have an adequate
knowledge of the conceptual thinking of legal professionals and transfer this into the
target language Similarly legal culture as viewed in this study refers to the
conceptual thinking about the law shared by legal professionals To sum up briefly
the above schematic framework of exemplification has the merit of simplicity but is
merely the skeleton on which we must build This endeavour may lead to conceptual
refinements and help to narrow down the concept of legal culture to fit our analysis of
legal translation We proceed in the next section to pin down the substantive contents
of legal culture with which the legal translator must cope in translating the common
law into Chinese
33 The Legal Culture of the Common Law
Identification of the concept of legal culture as the conceptual thinking shared by
legal professionals leads us in the present study to a further question what precisely
are these legal conceptions shared by the legal professionals as far as the common law
is concerned Since the culture of the common law as it stands is representative of its
legal tradition we need to look first at the development of the culture of the common
law from a historical perspective ie the common law tradition before we can begin
to analyze its substantive construction36
36 Theorists of comparative law are inclined to use the common law tradition vs civil tradition to
compare between the worldrsquos two major legal systems Comparative studies of the common law and
civil law tend to generalize about the characteristic differences between the two legal systems as if their
traditional features were crystallized even if they do acknowledge that some constructs are peculiar to a
single jurisdiction
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 74
The common law is the system of law that prevails in England and in countries
colonized by England The very name is derived from the medieval theory that the
law administered by the kings courts represented the common custom of the realm
The distinctive feature of the common law is that it represents the law of the courts as
expressed in judicial decisions The grounds for deciding cases are found in
precedents provided by past decisions as contrasted to the civil law system which is
based on statutes and prescribed texts It emphasizes the centrality of the judge in the
gradual development of law and the idea that law is found in the distillation and
continual restatement of legal doctrine through the decision of the courts The
common law consists of the rules and other doctrine developed gradually by the
judges of the English royal courts as the foundation of their decisions and added to
over time by judges of those various jurisdictions recognizing the authority of this
accumulating doctrine This concept is embodied in the doctrine of stare decisis
(ldquostanding by decisionsrdquo) that emphasizes the importance of legal precedents
established in previously settled cases The establishment of the common law gives
rise to leading concepts like ldquopersonsrdquo ldquorights and dutiesrdquo and ldquoownership property
and possessionrdquo (Lloyd 1964 pp 300-25) The common laws unity has been
attributed to the fact that law is grounded in and logically derived from a handful of
general principles and that whole subject areas such as contract or tort are
distinguished by common principles or elements that fix the boundaries of each
subject area
The common law tradition shapes the construct of the common law serving as its
philosophical and practical foundation Since the present study focuses on the
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 75
conceptual expression of legal culture in general we will concentrate on the
conceptual features of the common law rather than its practical features37
Let us first consider the translation of one fragment of the legislation of Hong
Kong found under the heading Apportionment of liability in case of contributory
negligence
Where any person suffers damage as the result partly of his own fault and partly of the fault of
any other person or persons a claim in respect of that damage shall not be defeated by reason of
the fault of the person suffering the damage but the damages recoverable in respect thereof
shall be reduced to such extent as the court thinks just and equitable having regard to the
claimants share in the responsibility for the damage (Amended LN 337 of 1989) (Cap 23
Sect 21)
The Chinese translation is as follows
條文標題有共分疏忽時法律責任的分攤
如任何人受到損害部分原因是該人本人的過失而部分原因是他人的過失則就該損害
提出的申索不得因受損害者有過失而敗訴但就該申索可追討的損害賠償則必須減少
而減少的程度是法院在顧及申索人對損害應分擔的責任後認為是公正與公平的款額
In the light of figure 32 the legal texts are two linguistic products directly linked
by semantic equivalence Let us explain the thinking process behind such end
37 By practical features we mean the characteristic behaviour and practice of legal professionals and
legal institutions such as how the legal training or education is performed how law is applied by
judges and lawyers etc
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 76
products When faced with the English legal text the legal translator seeks to extract
its meaning Clearly she needs to delve into the culture of the common law in order to
understand all the shades of meaning of the English legal text and produce a Chinese
legal text with the same meaning Here arises the real problem what exactly are those
cultural factors of the Common Law that she needs to pin down To understand the
whole world of culture behind every term we need to do legal research trying as
Vandevelde (1996) nicely put it to think like a lawyer We need to know the
subjective classifications the law addresses in the above example we must
understand that the ordinance belongs to an important branch of common lawmdashtort
law We then need to master the conceptual development of the specified law The
common law concept of tort is best defined as a civil wrong which the victim seeks
remedy for in the form of some kind of damages Examples of a tort would be assault
battery false imprisonment and negligence
Let us turn back to the substantive content of the ordinance mentioned above
The ordinance deals with one defence of negligence contributory negligence In
common law the principle of contributory negligence takes into account the relative
degrees of fault between the plaintiff and defendant and attempts to adjust award of
damages accordingly In the light of our categorization of the concept of legal culture
the above discussed legal concepts and legal principles embedded in the ordinance
reflect the shared beliefs of the legal professionals in the common law and fall under
the category of peoplersquos conceptions of law
The common law then is built on a series of traditionally well-formed legal
concepts which belong to different conceptual classifications such as tort equity
contract etc if legal tradition is regarded as the deeply rooted historically formed
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 77
attitudes towards law38 Practically legal principles in each subject of the law have
been developed into concrete and coherent constructions that make up the common
law we see before us today Therefore the common law is an accumulation of
deep-rooted historically moulded conceptual thinking shared by legal professionals
and reflected in two aspects legal concepts and legal principles Together these make
up the substance of the common lawrsquos legal culture
34 The Legal Culture of Traditional and Modern Chinese Law
As noted in section 222 the act of translating the common law into Chinese was
at the same time creating a variety of the Chinese language namely common law
Chinese as Chinese had not developed as a language to express the common law
before its translation Historically the development of Chinese legal language
represents the evolution of Chinarsquos legal culture Thus an investigation of the legal
culture of traditional and modern Chinese law serves two purposes First it will show
how the legal culture of traditional and modern Chinese law differs from that of the
38 Curran (2001 p59) also noticed this fundamental nature of the common law but instead of
conceptual ldquoclassificationrdquo she referred to conceptual ldquocategorizationrdquo Curran observed
hellip categorization is the process that underlies and determines differences in cultural contexts
Cultures differ from each other on the basis of the underlying categories in which members of
that culture place the empirically observed data categories whose own construction brings
certain observed data into sharp delineation hellip Thus cultural contexts result from sub-structural
patterns of classification in each culture hellip in contradiction to the Common Law system of
monetary remedies as the norm (normal remedies for breach of contract) and specific
performance the exception The Common Lawrsquos stark delineation between tort and contract law
is alien to the civil law with the concept of lsquofaultrsquo indispensable to civil law contract analysis
while unfamiliar in the Common Law contract analysisrdquo (pp 59 82)
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 78
common law Second it will show how Chinese has become an appropriate language
for expressing the common law through the evolution of Chinarsquos legal culture
Traditional Chinese law refers to the law operating in China up to 1911 when the
last imperial dynasty the Qing Dynasty fell Given its long history of feudal
monarchical and imperial regimes China can on this score be regarded as a stagnant
society Despite the stagnation of Chinarsquos political institutions traditional Chinese
law had undergone continuous development with a legal tradition distinct from the
two major legal traditions in the West ie the common law and the civil law The law
operating in different dynasties has its own peculiar features It is generally agreed
that the earliest authentic document on law in China is the Kanggao in Shangshu (尚
書康誥) in the Zhou Dynasty (c 1045-256 BC) Jiang (2003) held that the main idea
in Kanggao was the advancement of virtue (德) and the exercise of discretion in
punishment (明德慎罰) (p 1) However legalism (法家) prevailed and became the
central governing idea of the Qin Dynasty (221-206 BC) In this context Fa (法)
means law or principle which represents the political philosophy that upholds the rule
of law39 The Tang Code (618-906) in the Tang Dynasty was considered one of the
most important codes in Chinese history40 The central philosophy of law in the Tang
39 The main thoughts of legalism included the following the code must be clearly written and made
public all people under the ruler were equal before the law laws should reward those who obey them
and punish accordingly those who dare to break them (Jiang 2003 pp 15-31) Chen (1999) also noted
that
The bamboo strips found in 1975 contain strikingly sophisticated law and institutions from the
Qing Dynasty (221-206 BC) these legal arrangements perhaps represent the most advanced stage
of legal development of the time in the worldrdquo (p 6)
40 Johnson (1979) rightly pointed out the significance of the Tang Code in the history of traditional
Chinese law
Though based on earlier sources Trsquoang legislation has been more important historically than that
of any other dynasty hellip The great criminal code entitled The Trsquoang Code (Gu Tang Lu shu yi 故
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 79
Code was summarized as the advancement of li (一本于禮 ) (Jiang 2003
pp123-34)41 Chrsquou (1961) provided a definition of li
The li which may be defined as the rules of behaviour varying in accordance with onersquos status
defined in the various forms of social relationships were formulated by the Confucianists for this
purpose They are the means by which differences in status and role are maintained (pp 230-31)
Therefore a person in a different title and position was required to follow different li
Johnson (1979) also noted that li was the guiding principle for different classes
especially favoured ones (p 11) The Tang Code was considered the earliest model of
criminal law in China and had a strong influence on the development of criminal law
in other East Asian countries42 Johnson (1979) pointed out
hellip the Trsquoang dynasty is the earliest time from which we can obtain an accurate picture of the
range of Chinese criminal law during the imperial period and the structure of ideas that underlay
its provisions (p 8)
Thus the Tang Code had a far-reaching influence on the traditional Chinese law since
ldquoafter the fall of the Trsquoang dynasty the Code continued to dominate Chinese criminal
legislation until the end of the imperial periodrdquo (p 13)
唐律疏議 hereafter referred to as Code) hellip Though only the Code has survived in entirety we
know from historical sources as well as from still extant fragments that there was a large body of
written law in effect during the Trsquoang period There were four main divisions the Code (lu 律)
the Statutes (ling 令) the Regulations (ge 格) and the Ordinances (shi 式) (p5) 41 The term li (禮) is usually translated as rite ceremonies or propriety It is also translated as morality
(Johnson 1979 p 11) 42 Meijer (1976) noted some of the features of the Tang Code
The legal provisions were models and analogical application was allowed hellip The law itself also
often gave rules that a certain act should be similarly punished as an offence defined under a
different heading (p 4)
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 80
The Daqing Luumlli(大清律例) compiled in the Qing Dynasty was considered as a
rather comprehensive criminal code 43 Meijer (1976) compared the criminal
provisions in the Tang and Qing Codes to show the development of criminal law in
traditional Chinese law Meijer noted
The provisions were of a simple character categorical classification did not occur as the
evaluation of each act depended on the circumstances So there were not simply provisions for
intentional or unintentional homicide but special articles for parricide ldquoplannedrdquo homicide
homicide in a game by mistake ldquowithout authorityrdquo of more persons of one family of a senior
of the family and vice versa of the slave by the master and vv of an official in an affray by
means of poison or misused drug in hunting etc In the Ta-Chrsquoing Hui-tien the Collected
Institutes of the Chrsquoing dynasty they are classified as the six (ways of) homicide Liu-sha viz
homicide planned intentional in an affray by mistake by negligence and without authority (p
4)
We can see that in the course of the development of traditional Chinese law the focus
is largely on the penal systems and that the sovereignrsquos power to make laws is closely
intertwined with punishments
Since we are not intending to conduct a fully comprehensive analysis of the
development of traditional Chinese law our emphasis will be on the characterization 43 Meijer (1976) introduced the provisions contained in the Qing Code
The Code was divided into seven chapters viz the General Provisions (Ming Li) or Rules about
Names Definitions or Denominators of Offences containing rules about the punishments the ten
ldquoabominationsrdquo privileged classes offences by officials special classes of offenders
impardonable offences increase and reduction of punishment voluntary surrender to justice
indemnification joint offences contradictory provisions in the code desertion of soldiers
terminology The other six chapters contained the rules for the specific offences helliprdquo (pp 4-5)
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 81
of the legal culture of traditional Chinese law As noted in section 31 theorists
treated legal culture either as peoplersquos conceptions of law or the combination of
peoplersquos conceptions and practices of law As defined in section 32 legal culture in
this study refers to the conceptual thinking shared by legal professionals Since it is
generally agreed that traditional Chinese law was built on traditional Chinese
philosophy the thoughts shared by traditional Chinese philosophers were embodied in
traditional Chinese codes inherited from one dynasty to another with constant
supplement and revision by each subsequent dynasty Therefore the legal culture of
traditional Chinese law refers to the conceptual thinking of traditional Chinese
philosophers which found an embodiment in the law Let us look at the typical
features of the conceptual thinking embodied in traditional Chinese law and compare
them with the legal culture of the Common Law
It is generally agreed that Confucianism is one of the most important philosophies
manifested in the underlying traditional Chinese law Chrsquou (1961) remarked
The main characteristics of traditional Chinese law are to be found the concept of family and in
the system of classes Since these concepts are basic to Confucian ideology and to Chinese society
they are also basic to Chinese law as well (p9)
Though Confucianism provided the fundamental substance of traditional Chinese law
it was by no means the only philosophy influencing the development of traditional
Chinese law44 Chen (1999) noted
44 Chen (1999) pointed out
hellipthere is always a danger of over-generalization and over-simplification when dealing with a
tradition and a civilization spanning several thousand years In the case of China the traditional
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 82
Traditional Chinese conceptions of law have been largely influenced by writings of traditional
schools of philosophy Of these three have had a particular influence namely Ru Jia
(Confucianism) Fa Jia (Legalism) and Yin-Yang Jia with Confucianism being the dominant
force since the Han Dynasty (206 BC) (p 7)
As traditional Chinese law developed it came to incorporate two controversial
philosophies ie Confucianism and Legalism Chen (1999) observed that the central
view of Confucianism was ldquothe educational function of morality (li) in governing a
staterdquo (p7)45 Thus people were distinguished according to their status this should be
clearly defined so that people of different status could carry out their roles properly
and conform to approved patterns of behaviour Johnson (1969) held that the thought
of li promoted by Confucianism had at least three major impacts on the conceptual
thinking of traditional Chinese law First in traditional Chinese law ldquoa hierarchical
structure of superior-subordinate relationship is treated as natural and indispensable to
regulate human relationshipsrdquo Secondly it helped the sovereign ldquodevelop a legal
concept of rulership which is dovetailed with the concept of virtuous leadersrdquo Thirdly
ldquolaw is treated as rules of propriety rather than a device to protect individual rightsrdquo
(pp16-17)
society and legal culture are often described as lsquoConfucianrsquo However Confucian teachings as
reflected in the Confucian Classics have been the subject of endless interpretation and
reinterpretation by both philosophers and the ruling elites in China Views on and attitudes
towards the governance of society and law within one school of thought are often as diverse as
those between different schools of philosophy In this sense the term lsquoConfucianismrsquo is perhaps
quite misleading (p 4) 45 Liji (Code of Rites 禮記) (Western Zhou Dynasty c 900-771 BC) became the basis for
Confucianism
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 83
Chrsquou (1961) also noted that although legalists ldquodid not deny the reality of social
differentiation they made no attempt to distinguish people in different social statusrdquo
(p 242) Instead they advocated ldquoa uniform law a uniform reward and punishmentrdquo
(Ibid) In analyzing the criminal law of Qinluuml (秦律) which best reflected the thought
of legalism Liu (1998) remarked
[In] hellip analysis of the criminal law of Qin this is of great significance since it was upon this basis
that the Qin Lu divided crimes into two basic categories namely gong shi gao (official
denunciation) and fei gong shi gao (unofficial denunciation)(p 226)46
It is interesting to note that such a division of crimes was made on the basis of
the individual family at that time the basic unit of society Liu explained that ldquowhere
anyone who intentionally infringed upon the rights of person and property of people
who were not members of his own household it would be treated as a case of official
denunciationrdquo and vice versa (p 226) Different punishments were meted out
according to the above two kinds of offences In this regard Confucianists strongly
objected to the emphasis on severe punishment for maintaining social order
Confucianists instead promoted Shangang (三綱) and Wulun (五倫) which can be
translated as ldquothree bondsrdquo and ldquofive human relationshipsrdquo (Chrsquou 1961 pp
236-37)47 In conclusion ldquothe dispute between Confucianism and Legalism was more
46 As a primary Legalist (Fa Jia) code the Qin Lu (Qin Code) framed by Shang Yang (c 300 BC)
institutes uniform rules for social behavior and attempts impartial rewards and punishment Harsh
punishments were based on lianzuo (linked seats) idea of punishing clan members friends and
associates in addition to the perpetrator 47 As for the three bonds and five human relationships Chrsquou (1961) explained
hellip the five human relationships are but concrete types of reciprocal relationships derived from
the more general categories of ldquonoble and humblerdquo ldquosuperior and inferiorrdquo ldquoelder and youngerrdquo
ldquonear and remoterdquohellipThe first three relationships have also been called Sang-Kang the ldquothree
bondsrdquo by Han scholars (pp 236-37)
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 84
than philosophical contention it was a political struggle for supremacy and
domination in state ideology and hence state politicsrdquo (Chen 1999 p 12)
We can see now that the substantive expression of the legal culture of traditional
Chinese law is the conceptual thinking of traditional Chinese philosophies manifested
in Confucianism and Legalism As a result the concepts of li (ldquomoralityrdquo represented
by Confucianism) and xing (ldquopunishmentrdquo represented by Legalism) were intertwined
in codified traditional Chinese laws Compared with the legal culture of the common
law the legal culture of traditional Chinese law exhibits three distinctive features
First there are no such common law concepts as ldquorightsrdquo and ldquorule of lawrdquo in
traditional Chinese law the legal concepts and principles of which are mainly
philosophical in nature In comparing traditional Chinese law with the English law
Gu (2006) pointed out
While the conceptual division of abstract and concrete law transformed English law from an
administrative into a ldquolegalrdquo practice the lack of an abstract concept of rights and the transmutable
boundaries of original legal meanings determined the administrative features of Islamic and
Chinese law (p 4)
Secondly traditional Chinese law did not develop a system of precedents such as are
found in the common law Alford (1995) gives an explanation for this
Contrary to what one might initially expect the imperial Chinese legal system did not adhere to a
formal system of binding precedent although in fact magistrates and other officials involved with
the law did draw on compilations of prior cases as they reached and sought to justify their
decisions But on reflection the absence of binding precedent may actually have connoted an even
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 85
greater embracing of the pastmdashas the Confucian morality and wisdom of the ages that officials
were assumed to have cultivated in preparing for and taking the imperial examinations were surely
seen as a truer and more historically valid guide for making decisions than any set of rules
formulated or cases resolved by onersquos predecessors in office (p 22)
The prevailing philosophy of Confucianism thus became a hindrance for the
development of legal professionals and the system of binding precedents Despite the
fact that there was a large body of codified laws in traditional Chinese society it was
by no means a legally oriented society
Thirdly given its penal emphasis traditional Chinese law did not pay attention to
matters of a civil nature eg contracts property rights inheritance marriage etc
The legal system was made to serve state interests not to protect individual rights or
to resolve disputes among individuals ldquoThe Chinese neither saw public positive law
as the defining focus of social nor divided it into distinct categories of civil and
criminalrdquo (Alfrod 1995 p 10) As a result the civil law concepts and principles of
the common law are mostly absent in the Chinese language As for criminal law the
difference between traditional Chinese law and the common law is enormous
Though modern Chinese law refers to the law operating in China after the fall of
the last imperial dynasty there were attempts at legal reform in the late Qing dynasty
which had considerable impact on the social and economic development of early
modern China Chen (1999) called the late Qing reform ldquothe westernization of
Chinese lawrdquo since the pressure for reforming traditional values and systems led to the
introduction of ldquowestern economic cultural and political ideasrdquo by the late 19th
century (pp 17-18) The reform was conducted in two stages Chen (1999) notes
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 86
The first stage was to revise the old law with its focus on abolishing the cruel punishments which
then existed hellip the second-stage reform the making of new codes in line with Western laws was
carried out almost simultaneously hellip(p20)
Besides the focus on the reform of criminal law some elements of civil law were
beginning to take shape in China In 1901 the first Chinese company law became
effective introducing ldquothe idea of limited liabilityrdquo and it ldquotook a highly supportive
approach toward entrepreneurial endeavourrdquo (Alfrod 1995 p 48)
The revolution led by Sun Yatsen overthrew the regime of the Qing dynasty and
a Republican government was established in 1912 Legal reform which Chen (1999)
called ldquothe modernzation of Chinese lawrdquo was continued (p 23) The reform was
guided by ldquothree Principles of the PeoplemdashNationalism (minzhu) Democracy
(minquan) and Peoplersquos Livelihood (mingsheng)rdquo (p24) Compared with the Qing
reform the legislation of the Republican government took the Chinese traditions and
customs into consideration in ldquoadopting and adapting Western legal doctrines and
institutionsrdquo (p 28)48
The PRCrsquos legal system was built on the model of Soviet socialist law which
was much closer in form to the legal systems of continental Europe than to the
Common Law with considerable modifications in accordance with Marxist ideology
During the 1950s a large body of laws was comprehensively codified under Maorsquos
48 Chen (1999) holds that law reform of Republican government was more progressive compared with
the Qing reform He remarks
Besides its conservative approach to family and succession matters the Qing reform largely failed
to preserve certain ancient and deep-rooted customs such as the civil law institutions of Yung-tien
(a long-term lease) and Dien (a kind of usufructuary mortgage) (pp 27-28)
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 87
leadership Chen (1999) noted that PRC law experienced another stage of
development under Dengrsquos leadership especially since 1992 when ldquothe Party adopted
the notions of a ldquosocialist market economyrdquo and ldquoassimilation or harmonization with
international practicerdquo (p 49) With the codification of a series of laws such as the
Company Law (1993) the Foreign Trade Law (1994) the Insurance Law (1995) the
PRC legal system underwent many changes in keeping with international practice
Chen remarks
Taxation law joint venture laws intellectual property protection law and most recently the
Criminal Procedure Law and the Criminal Law have all undergone major revisions Further
China has now ratified a large number of international conventions dealing with international
economic relations especially intellectual property protection Thus Western scholars now find
familiar language in Chinese law since Chinese law in its forms structure and methodologies
has become unmistakably Western (p 55)
Paler (2005) also agrees that decades of legal reform of the PRC law represent ldquoa
significant attempt to produce a more orderly and open legislative system in Chinardquo a
modern legal system of legal rules that support its emerging market economy (p 302)
There are three major features of the legal culture of modern Chinese law compared
with that of the Common Law First the notion of rule of law which is a foundational
concept in the Common Law is something of an imported idea in modern Chinese
law and the same term carries a rather different meaning in the two different legal
cultures The legal principles and concepts are derived from the legislation which is
the primary source of law Secondly modern Chinese law modelled on the civil law
system shares the characteristics of the civil law system rather than those of the
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 88
common law49 In particular the basic principles and concepts of criminal law in
modern Chinese law are substantially different from those in the common law
Thirdly with the progress of legal reform certain branches of law including company
law insurance law and trade law show similarities with elements of the Common
Law We shall see that the feature of the PRC legal system is fundamentally socialist
but with a newly developed modern economic legal framework Despite the fact that
many of the basic principles and concepts in modern Chinese law are substantially
different from those of the common law borrowing from other legal systems and
transfer of foreign laws into China are both features of traditional and modern Chinese
law In the next chapter therefore we will investigate the transfer of the legal culture
of foreign laws into China since this can shed light on the translation of the common
law into Chinese
49 David amp Cohan (1985) gave two major reasons for this First it was attributed to the Europeanization
of China between the 19th and 20th centuries The other is the fact that the PRC had inherited the
Chinese legal tradition where the statutes or codes were highly valued throughout the imperial period
ie from the Qin Dynasty to the Qing Dynasty
Chapter 4
The Transfer of Legal Culture
41 Legal Transplant and the Transfer of Legal Culture
411 Introduction
We have noted that legal culture ie the conceptual thinking shared by legal
professionals is an essential yet inseparable component of any legal system The
transfer of legal culture can take place when the law of one country is moved to
another or when two legal systems come into contact Transposition of law from one
society to another is generally known as legal transplant While this is an extensively
researched area in comparative law in recent years legal transplant is as old as the law
itself Earlier legal transplants such as the transposition of Roman laws to Europe
offer a well-known example (Watson 1974) Since transplantation involves the
transfer of the conceptual thinking of the imported law legal transplant often brings
about a transfer of legal culture We will examine the relationship between legal
transplant and legal translation the causes of legal transplant and its role in the
transfer of legal culture In so doing we hope to arrive at a better understanding of the
theoretical background surrounding the transfer of legal culture in legal translation
Watson (1974) the founding scholar in modern legal transplant theory
described it as ldquothe moving of a rule or system of law from one country to another or
from one people to anotherrdquo (p 21) Watson identified legal transplant with legal
THE TRANSFER OF LEGAL CULTURE 90
borrowing and argued that the phenomena of legal transplant had ldquobeen common
since the earlier recorded historyrdquo (p21) According to Watson the object of legal
transplant is rules By ldquorulesrdquo he meant not just statutory rules but also institutions
legal concepts and structures (2001a)50 Watson held that legal borrowing can take
place between societies with very different political social economic and religious
conditions and that usually the borrowing is from the more developed and complex
system (2001b p 215)51 In analyzing Watsonrsquos concept of legal transplant Cottrrell
(2001) held that comparative legal history is the primary tool of legal research and
borrowing is usually the major element in legal change (p 71) 52
Legrand (2001) disagreed with Watsonrsquos definition of legal transplant however
contending that Watson reduced it to the movement of ldquorulesmdashwhich are usually not
defined but which are conventionally taken to mean legislated texts and though less
peremptorily judicial decisionsrdquo (pp 55-56) He argued that legal transplant was in
essence impossible since ldquowhat can be displaced from one jurisdiction to another is
literally a meaningless form of wordsrdquo (p 63) Cottrrell (2001) agreed with Legrandrsquos
criticism remarking
50 Watson Alan ldquoLegal transplant and European Private Lawrdquo Ius Commune Lectures on European
Private Law 2 (electronic version) Dutch Institute of Comparative Law
(httpwwwejclorg44art44-2html accessed on March 15 2008) 51 Watson also pointed out that law in writing was an obvious source for borrowing the reception of
Roman law (and of canon law) in Western Europe and the success of the Sachsenspiegel in medieval
Germany of the French code civil in Europe and Latin America are all powerful examples (2001b
p215) 52 Cottrrell (2001) summarized Watsonrsquos views thus firstly transplantation of legal rules between
legal systems was a principal explanation for the growth of law secondly social need was not the
decisive force in legal development thirdly legal changes were largely controlled by the internal legal
professional elites fourthly legal rules survived over long periods despite significant variation in the
social context on which they operate fifthly the development of some important bodies of law was
largely the result of legal history (pp71-72)
THE TRANSFER OF LEGAL CULTURE 91
hellip an emphasis on legal culture may highlight the difficulty or even impossibility of transplants
since a legal culture is not easily replaced by a different one and legal rules are understood in
relation to legal cultures (2001 p78)
As noted in section 312 Cotterrell (1997) rejected the concept of legal culture
and proposed to replace it with the term ldquolegal ideologyrdquo He was thus naturally
opposed to the concept of legal transplant since this hinged largely on a proper
definition of legal culture Watson (2001) however refuted Legrandrsquos view
hellip I believe I have shown that massive successful borrowing is commonplace in law hellip Legal
borrowing I would equate with the notion of legal transplant I find it difficult to imagine that
anyone would deny that legal borrowing is of enormous importance in legal development
Likewise I find it hard to imagine that anyone would believe that the borrowed rule would
operate in exactly the way it did in its other home hellip I have continually over more than a quarter
of a century insisted that what are borrowed and can be borrowed are legal rules principles
institutions and even structure (2001 pp 23-24)
In characterizing the relationship between legal tradition and legal culture for
the development of his legal transplant theory Watson (1991) remarked
The answers for understanding the nature of law and its place in society can only be found in the
legal tradition and legal culture (p 4)
We shall see that Cotterrellrsquos dismissal of the concepts of legal culture and legal
transplant is not convincing Just as legal rules should be understood as an element of
legal culture the concept of legal culture should be understood as an indispensable
THE TRANSFER OF LEGAL CULTURE 92
component in legal transplant Though Watson may well not have defined legal
culture he did consider it as the basis for understanding the nature of law and legal
transplant Since we define legal culture in this study as the conceptual thinking of
legal professionals of which legal rules are an integral part it is fair to say that legal
rules are also an inseparable part of legal culture and thus of legal transplant Though
legal transplants may not always be viable we can not simply dismiss them as
impossible History and a fair part of comparative law studies show that legal
transplants have indeed taken place
412 Legal Transplant Legal Imposition and Legal Translation
Legal transplant takes place for many reasons such as authority prestige
political and economic incentives and may take different forms in different countries
In an attempt to explain the phenomenon Sacco (1991) remarked
There are two fundamental causes of imitation (ie legal transplantation) imposition and
prestige Every culture that has faith in itself tends to spread its own institutions Anyone with
the power to do so tends to impose his own upon others Receptions due to pure force however
are reversible and end when the force is removed (p 398)
Likewise Bercowitz (2001) observed that ldquosome legal transplants were imposed
during occupation others were part of a voluntary reform process initiated by the law
receiving countryrdquo (p 8) A fairly wholesale transplantation of legal systems is
possible during an occupation even without any translation of the imported law into
the indigenous language However legal translation is usually the major conduit of
THE TRANSFER OF LEGAL CULTURE 93
legal transplant in the case of legal reform in the receiving country Therefore we
classify legal transplants into two kinds in this study legal imposition at the
socio-political level and legal translation at the socio-linguistic level
Comparative legal scholars have carried out extensive studies on the imposition
of law since the importation of foreign legal systems is widespread and poses
important theoretical problems In search of a definition of legal imposition
Lloyd-Bostock (1979) distinguished between ldquoexternally imposed law and law that
accords with internalized normsrdquo (p 10) She remarked
hellip externally imposed law would include cases ranging from particular instances of law within
an established legal system to the importation of an entire legal system form another culture It is
debatable whether a definition of imposed law should introduce further distinctions between
types of cases but there can be no doubt that explanation of compliance will need to take
account of the wider context in which law has been imposed (p 10)
Lloyd-Bostock opined that looking into the compliance with imposed law would be
an effective way of understanding the social consequences of legal imposition In
seeking to define the term legal imposition Okoth-Ogendo (1979) observed that ldquothe
use of that phrase might imply concern merely with the normative and institutional
legacies of colonialismrdquo (p 147) However his own view was that legal imposition
encompassed ldquoany situation where fundamental change is contemplated in society
through the medium of laws or legal institutions whose content is clearly contrary to
the perceived and accepted normative order of those whose behaviour it seeks to
regulate or changerdquo (p 147) From this perspective legal imposition resulting from
colonialism always gives rise to socio-political change in the society that receives the
THE TRANSFER OF LEGAL CULTURE 94
law Okoth-Ogendo went on to make an in-depth study of the imposition of English
property law in Kenya pointing out that ldquolegal imposition is a rampant practice in
Africardquo and that the ldquoimposition of law can be seen as an expression of dependency
relations between the Third-World (the periphery) and industrialized nations (the
metropolitan centres)rdquo (p 148)
In similar vein Kidder (1979) pointed out that ldquothe prototype of imposed law as
it seems most generally to be understood is the colonial situation where legal systems
are imposed from dominant cultures and forced on indigenous populationsrdquo (p 289)
A case in point is the imposition of common law in British colonies in South East
Asia Accompanied by nineteenth-century colonialism the imposed law radically
reshaped and pluralized the law of much of Africa Asia and the Pacific The research
of Harding (2001) provides a thorough description of legal transplant in South East
Asia where the imposed law survived Following the lead of Watson and other
likeminded scholars he remarked
hellip law in South East Asia has evolved out of legal transplantation which has on the whole
been successful if judged by the criterion of whether the law has stuck or come unstuck In
South East Asia the idea that the history of a system of law is largely a history of borrowing of
legal materials from other legal systems as maintained by Watson Pound and others is proved
remarkably accurate (p213)
The wholesale transplant of the common law system in Southeast Asia also includes
the case of Hong Kong since English law was imposed on Hong Kong after 1843 In
the case of Hong Kong the legal transplant met with a rather benign reception and as
THE TRANSFER OF LEGAL CULTURE 95
Epstein (1989) noted there was little interaction between Hong Kongrsquos legal system
and the laws of the Chinese Mainland after colonization He remarked
For a century and a half British colonial rule has insulated Hong Kongrsquos legal system from law
and legal change on the Chinese mainland Although early provision was made for the
application of Qing dynasty law in Hong Kong in practice the Qing codes had little if any
impact in Hong Kong after 1841 and even the role of customary law has been restricted to
family matters and land tenure in the New Territories (quoted in Wacks 1989 p 38)
Wesley-Smith (1994) held a different view with regard to the influence of
Chinese customary law however In the process of legal transplant colonial officials
typically endeavoured to eliminate customs they considered repugnant such as
polygamy payback killings suttee and many other kinds of practices they considered
uncivilized Yet customary laws continued to have some effect both in Hong Kong
and many other countries53 Wesley-Smith noted that ldquolsquoChinese law and customrsquo
despite its decline as a source of lawmdashmuch of it was abolished prospectively in
1971mdashstill plays an important role in modern Hong Kongrdquo (p 205) In the process of
legal imposition conflicts often emerge between the indigenous and the imposed law
although as already noted the imposition of the common law on Hong Kong was a
fairly well received legal transplant with the imposed law meeting little resistance
when it began to regulate the behaviour of the indigenous inhabitants However the
legal culture ie conceptual thinking about the common law could reside only in the
minds of legal professionals before the common law was translated into Chinese The 53 Harding (2001) gave an example from Singapore where the famous case known as the Six Widows
Case tried by the colonial court raised a crucial question of what kind of law was to be applied in cases
involving local custom the common law or the customary law The court finally decided the case
according to the Chinese polygamous marriage custom (p 210)
THE TRANSFER OF LEGAL CULTURE 96
transfer of the legal culture related to the imposed law can only fully effected until the
conceptual thinking of the imposed law is translated into the indigenous language and
made accessible to local laypeople
Legal translation as a form of legal transplant always involves the transfer of
the legal culture of the translated law at the socio-linguistic level It takes place when
a country or region borrows the legal system of another usually accompanied with
massive translation of the imported law Through legal translation the concepts of the
foreign law are introduced to the indigenous people Compared with legal imposition
legal translation as a form of legal transplant is a more fruitful way of transplanting
legal systems and transferring foreign legal culture since it imports the underlying
legal concepts into the indigenous language As Zhang (2003) pointed out legal
transplant by translation is the most common phenomenon in the course of legal
development in many countries Its history can be traced to the Old Roman Period (p
9) After the medieval period many western European countries such as France
Germany transplanted the Roman codes by way of translation In modern times many
Asian African and American countries have transplanted the laws of western
countries (p 9) Japanrsquos legal development also illustrates how the improvement and
modernization of one statersquos law may occur by way of translation During the Meiji
period there was massive translation of continental European laws into Japanese and
their reception took place in a completely non-European cultural juridical and
religious context
As noted in section 21 translation as cultural transfer usually requires that a
choice is first made between two basic translation strategies namely domestication
and foreignization through which the cultural concepts of SL may either remain
THE TRANSFER OF LEGAL CULTURE 97
un-transferred or be transferred Cultural transfer as domestication may result in
cultural appropriation to which Merry (1998) gave an explanation
The concept defines culture as contested historically changing and subject to redefinition in
multiple and overlapping social fields It emphasizes continual transformations in the meaning
and structure of law rather than any notion that law is embedded in a homogeneous and shared
culture It incorporates the possibility of resistance while recognizing that resistant practices
involve actions that appear to be accommodation and adaptation Changing the way culture is
conceived makes it possible to reimagine the relationship between law and culture Processes of
legal transplantation imposition and borrowing widespread during nineteenth-century
colonialism and contemporary globalization are central sites for examining this relationship
(1998 p 603)
Cultural appropriation can be seen as the resistance to the imported culture which is
changed in form and substance becoming mixed with the indigenous culture Cultural
transfer as domestication contrasts quite sharply with cultural transfer as
foreignization where the target culture accommodates the alien concepts and adapts
to the foreign culture
Legal translation as foreignization necessitates the assimilation of the legal
concepts of foreign laws as is the case with legal transplants in China China has a
long history of legal transplants dating back to the Late Qing dynasty when China
transplanted the German system of civil law Next Japans legal experience exerted
great linguistic and practical influence on Chinas reception of civil law before 1949
Moreover China transplanted the Soviet Unionrsquos legal ideas after 1949 The history
THE TRANSFER OF LEGAL CULTURE 98
of legal transplants in China can usefully elucidate the role that legal translation has
played
42 Transfer of the Legal Culture of Foreign Laws in China
421 Transplant of Foreign Laws since the Late Qing Dynasty in China
The introduction and translation of foreign legal texts into Chinese started since
the Late Qing period The systematic introduction of Western laws together with other
Western sciences commenced with the establishment of Tongwenguan in 186254 In
the Late Qing Dynasty the transformation of social relations demanded a new social
order Zhang (2003) notes how in the early 20th century when the Qing Code was still
in effect the Qing government decided to reform the law and transplant Western legal
principles into China (p 8) Legal translation played a significant role from 1896 to
1936 during which period legal concepts and legal principles of Western laws were
transplanted into traditional Chinese law thus laying the foundations for modern
Chinese Law
Meijer (1976) carried out a comprehensive research into the revision of criminal
codes in the Late Qing period The Qing government established the bureau for the
compilation of laws in 1901 and it set to work ldquotranslating foreign codes of Criminal 54 It is generally assumed that international law and the relevant vocabulary was introduced in China
mainly after the Japanese influence early this century Several other texts on international law were
however translated into Chinese between 1864 and the turn of the century Some of these were
translated by Martin and published by Tongwenguan such as Theodore Dwight Woolseys Introduction
to the Study of International Law (1877) and William Edward Halls A Treatise on International Law
(1903) (Svarverud 1998)
THE TRANSFER OF LEGAL CULTURE 99
Law and Criminal Procedurerdquo in 1904 (pp 9-11)55 During the law reform period ie
from 1901 to 1907 legal concepts and models were imported from Japan Germany
and other continental countries56 According to Meijer (1976) Shen Jiaben one of
the most important figures in the legal reform of the Late Qing Dynasty was
appointed in 1904 as one of the Commissioners (Xiuding Faluuml Dacheg 修訂法律大
臣) responsible for the Office of Codification (Faluuml Bianzhuan Guan 法律編纂館) (p
11) As the leader of the team of translators translating the foreign laws into Chinese
he held that the success of legal reform depended on the translation of the foreign
laws57 The criminal laws and criminal procedures of the civil law system were
studied and translated58 There were two main reasons for modelling the new law on
the continental legal system One was that the continental system inherited
ldquosomething of the old Roman Familiardquo which was similar to the focus of familism in
traditional Chinese society while ldquoAnglo-American Law emphasizes the individual as
against the familyrdquo (p 22) The other reason was that ldquothe concept of state authority
55 Meijer (1976) made a survey of important revisions on the old law which included the ldquosubstitution
of penal servitude for banishment the abolishment for torture and corporal punishment and abrogation
of some severe punishmentrdquo (pp19-37) 56 Chen (1999) noted that ldquoa constitutional reform which aimed at transforming the autocratic empire
into a constitutional monarchy was also begunrdquo (p19) Japanese model was then adopted and ldquoa series
of edicts concerning the establishment of constitutional government and a series of constitutional
projects and documents were issued by the Thronerdquo (p19) 57 According to Zhang (2003) a total of 180 books of foreign laws were translation into Chinese
among which there were 123 law books from Japan 29 from Britain 18 from America 18 from
German 11 from France 2 from Netherland 4 from Sweden 1 from Finland 2 from Russia and 1
from Mexico 58 In relation to the revised law Meijer (1976) noted
They did not only carry out some of the suggestionshellipas eg the change of beating with the
bamboo into fines and the abolition of torture they went further and obtained the abolition of the
cruel ways of capital punishment branding and collective responsibility in criminal matters the
abrogation of three hundred and forty four articles of the standard rules and the change of formal
capital punishment into penal servitude for some cases of homicide (p12)
THE TRANSFER OF LEGAL CULTURE 100
over its citizens as inherited from Roman Law also fitted well into the ultimate goals
of the legal reform to secure the emperorrsquos position permanently to alleviate foreign
aggression and to quell internal disturbancerdquo (p 22)
Apart from criminal law legal concepts of civil law in Western countries were
also transplanted into China from the Late Qing period on Meijer pointed out that
ldquoapart from the field of Criminal Law the Committee for the Compilation of the Laws
also produced a draft for the Bankruptcy Law and the well-known draft for the new
Law of Judicial Procedure both on the 24th of April 1906rdquo (1950 p 31) In his study
on Chinarsquos reception of concepts and elements of Western private law Epstein (1998)
also holds that ldquoforeign influences on Chinese Civil Law are broad and deeprdquo and he
seeks to ldquoillustrate a number of important features of Chinas reception of Western
legal conceptsrdquo (p 154) The history of Chinarsquos reception of Western civil law began
when the ldquoQing imperial government first attempted to transplant Western civil codes
into China at the turn of this centuryrdquo and ldquothe first successful codification of Chinese
Civil Law was promulgated by the Nationalist government between 1929 and 1930rdquo
(Epstein p 153)59 After 1949 China adopted the legal concept of the Soviet Union
that all law is public law deciding ldquoquite literally to banish the words lsquoprivate lawrsquo
from its legal vocabularyrdquo ldquoa textbook on economic law published in Moscow in
1977 was translated and republished in China in December 1980rdquo which ldquomarked the
59 In explaining Chinarsquos borrowing of Civil Law concepts from the west Epstein remarked
The distinction between criminal and Civil Law was first borrowed from the West during the Qing
codifications It was drawn first in procedural law n45 and finally in substantive law by
designating that the civil provisions in the revised Qing Code (Xianxing Xingluuml) of 1910 should
not be subject to punishments Thereafter China adopted the Japanese pattern of Six Laws which
clearly distinguished between private and public civil and Criminal Laws Despite the influence of
Soviet jurisprudence after 1949 the distinction has survived in substance if not in form in the
PRC (1998 p162)
THE TRANSFER OF LEGAL CULTURE 101
second reception of Soviet legal doctrine into Chinardquo (p 164) During the whole
process of legal transplant since the Late Qing Dynasty China adopted legal concepts
mainly from Germany and the Soviet Union and these set the standard for its legal
codifications This also explains why Chinese law is characterized by civil law
traditions After Chinarsquos economic reform in the late 1970s legal transplant by way of
translation was even more visible Suli (2004) remarks
Since the implementation of lsquoOpen and Reformrsquo in China in 1978 the translation of legal works
has been an important part of developments of the Chinese Law Most active legal scholars of
today have in certain stages of their academic careers translated some works or benefited from
the translation of legal works either directly or indirectly hellip Almost no scholar is totally free
from impacts of foreign laws hellip In this sense the legal science of China of today is basically the
result of legal transplants and the transplants have proved to be successful on the whole (p 97)
The Company Law of the PRC (1993) is a major example of continuing
transplant from Western laws among which Americarsquos corporate law was then a
prime source The profound effect of legal transplant on the development of the
Chinese law can be identified from at least two aspects One is the transplanted legal
concepts and legal principles of the civil law system which underlies Chinese law
The other is the analytical tools which have long been used in Chinas adopted civil
law doctrines to guide legislative drafting and which have in part become embodied
and embedded in the law In explaining Chinarsquos legal transplant and the interplay with
its legal culture60 Potter (2004) remarked that ldquoChinarsquos legal reform effort also
60 Concerning Friedmanrsquos definition of legal culture Potter (2004) remarked
THE TRANSFER OF LEGAL CULTURE 102
depends to a significant extent on dynamics of legal culturerdquo hellip thus analysis of
Chinarsquos legal culture would permit ldquohellip appreciation of the tensions between the
globalized systems of liberal legal norms from which many of Chinarsquos legal reform
efforts are drawn and deeply embedded systems of local norms and values (pp
474-75)61 In other words in the process of legal transplant Chinarsquos local legal norms
adapted selectively to foreign legal norms which were finding their way into Chinarsquos
legal culture Given Chinarsquos long history of legal transplant by way of translation it is
thus meaningful to enquire which aspects of the legal cultures of foreign laws have
been transferred in what form they have been transferred and in what way legal
translation could account for the successful transfer of the legal culture of foreign
laws
Legal culture maybe defined by reference to discourses of sociology and political science in terms
of customs values and opinions and ways of thought and behavior (Friedman 1975 15 Ehrmann
1976 Glendon 1985 Varga 1992) (p474)
However his perspective was ldquoto focus legal culture as a basis for understanding the relationship
between imported and local norms (Potter 2003b)rdquo (p474) 61 Potter (2004) argued that foreign laws especially international laws were transplanted into China It
was easy to assume that those laws with its familiar appearance had no difference with their originals
However it was not always the case He noted
Lubman and Peerenboom both remind students of the Chinese Law not to confuse what appear
to be familiar institutional forms in the operation of the Chinese legal regime with the
acceptance of related international norms As we struggle to understand the conflicted interplay
between imported legal forms and local legal norms ideas about selective adaptation and
attendant features of perception complementarity and legitimacy offer potentially useful
perspective form whence to proceed (p486)
THE TRANSFER OF LEGAL CULTURE 103
422 Transfer of the Legal Culture of Foreign Laws in China
As noted in section 22 of chapter 2 legal translation that seeks to transplant
cultural concepts specific to the original legal system is a good example of cultural
transfer as foreignization A case in point is the legal translation in the Late Qing
Dynasty in China which we have just sketched out We will now look at how the
foreign laws were translated during this period and the approach to translation that
was taken Shen Jia-ben had already observed that when Japan translated Western
laws semantic translation was initially adopted However the great number of
mistranslations that occurred had led to the eventual adoption of literal translation In
the case of China the task of translation was far more difficult since there were no
legal terms to express the legal concepts of Western laws Shen thus asked the
translators to strive for fidelity and fluency in translating the criminal laws of France
Germany Russia and Japan (Zhang p 180)62 For example when learning from the
criminal laws of other countries Shen strove to propagate the idea of a ldquolightrdquo
(xingqing) response to crimes by condemning the traditional punishment inflicted on
prisoners such as dismemberment or decapitation followed by the displaying of the
victimrsquos head in public63 We can see that when striving for fidelity to the foreign
62 Zhang (2003) held that legal translation was a very important channel for importing the legal
concepts of Western law into China She quoted Shen Jiaben as follows
參酌各國法律首重翻譯而譯書以法律為最難語意之緩急輕重記述之詳略偏全決
策為精訛立見從前日本譯述西洋各國法律多尚意譯後因訛誤改歸直譯中國名詞
未定移譯更不易言臣深慮失實務令譯員力求信達hellip (p 180) 63 In explaining how the translators deal with the terminological problem in the translation Meijer
(1950) also noted
hellipThe first deals with the term fa-hsing 罰刑 fine which the committee wanted to be changed
into fa-chin 罰金 on historical and logical grounds The first term means punishment of fine
but he word fa may also denote punishment so that the term might become meaningless the
THE TRANSFER OF LEGAL CULTURE 104
laws Shen wished to achieve conceptual semantic equivalence by adopting literal
translation instead of semantic translation which would result in creating new legal
terms in Chinese In such ways were linguistic adjustments made when transferring
the legal concepts of foreign laws into Chinese
As noted in section 222 of chapter 2 whenever a culture is transferred from one
language to another there is also a need for conceptual adjustment which invariably
results in the foreignization of the importing language Regarding this Meijer gave a
thoughtful account in his researching into the memorials written by Shen He
remarked
With the memorials Shen Chia-ben introduced a new criminal code in China A code based on
foreign concepts most which were alien to Chinese thought or which had in the course of history
been discarded as unsuitable for Chinese society The memorials are not a theoretical explanation
of the philosophical back-ground of a new law they are presented as remarks on the revision of
some of the principles of an existing law by borrowing from foreign law hellip Formerly the law was
according to the most accepted doctrine an auxiliary to education It was essentially a part of
ethics it derived its force from the moral code and served as a model for the judge being a
directive for the maintenance of the natural ordermdashtao The new law however reposed on totally
different concepts The law now became a set of rules given by the state in its capacity of keeper
of the public peace and order punishing any acts which were contraries to the minimum
standards of conduct required for an orderly society An offence now became officially an
offence only because the objective Criminal Law forbad it Violators of moral laws were no
second term is more specific meaning punishment-money taking fa in the meaning of
punishmentrdquo (p 52)
THE TRANSFER OF LEGAL CULTURE 105
longer interfered with as long as they stayed within the limits of the Criminal Lawrdquo (1950 pp
70-71)
Meijer here suggests that cultural transfer takes place on the metalinguistic level
rather than via a theoretical explanation of the philosophy behind the new laws
However it can be conceded that such a background still provides a theoretical
framework and working principles for transferring the legal culture of the foreign law
In other words we can understand foreign legal concepts by studying the extent to
which the memorials of Shen (and his colleagues) are explicit about what the newly
coined Chinese legal terms stand for and how they relate to the original legal system
For example Shen distinguished between criminal and civil affairs It ldquowas
established in the memorial asking for permission to print the code of 1910 The
distinction was based on the principle of Shen Chia-benrsquos Draft of the Code governing
Civil and Criminal Procedure of 1906 art 2 and 3 (cf p 43) but somewhat more
elaborated and preacutecisedrdquo (Mejier 1950 p 53) Therefore the memorials serve as an
important metalanguage for transferring the legal culture of the foreign laws
If we recall the discussion of Evans-Pritchardrsquos translation of Azande in section
223 of chapter 2 we shall be reminded that cultural transfer must be effected at the
metalinguistic level As can be seen from Chinarsquos long history of legal transplant by
way of translation the legal concepts and legal principles of foreign laws have been
transferred into Chinese This also shows that successful transfer of the legal culture
of foreign laws requires adjustments to be made in the target translation language and
must involve conceptual transfer at the metalinguistic level
Chapter 5
The Language of the Common Law
51 The Translatability of the Common Law
As we noted in section 412 of chapter 4 legal transplant in Hong Kong has
taken the forms of political imposition and legal translation the former as a result of
colonization and the latter after the recovery of sovereignty by China64 Wesley-Smith
(1993) gave a detailed account of how English law was imported to Hong Kong after
it became a British colony He noted
One of the first things to be done therefore was to introduce English law into Hong Kong At
one stroke was thus imported a comprehensive collection of rules principles standards and
concepts appropriate for the trading post Britain had established From 1846 to 1966 the
formula by which English law was received into Hong Kong applied all the laws of England
which existed on 5 April 1843 the day Hong Kong obtained a local legislature (p 33)
Despite the controversy over the applicability of the common law it was kept up to
date by constant legislative reception Wesley-Smith rightly pointed out which aspects
64 The Department of Justice explained why legal bilingualism had to be launched in Hong Kong as
follows
In keeping with the Basic Laws provisions on bilingualism all legislation in Hong Kong is enacted in
both Chinese and English and both versions are accorded equal status Thanks to the bilingual
legislation programme begun in 1989 authentic Chinese texts have been completed of all pre-existing
legislation which had been enacted in the English language only and Hong Kongs statute book is now
entirely bilingual ( httpwwwdojgovhkenglegalindexhtm accessed on September 2 2007)
THE LANGUAGE OF THE COMMON LAW 107
of English law were imported into Hong Kong ie the rules principles and concepts
which constitute the substantive contents of the legal culture of the common law as
described in chapter 3 As a matter of fact these rules principles and concepts of
English law had been imposed on the operating legal system in Hong Kong long
before the law was translated into Chinese65 The decision to translate the common
law into Chinese signified a yet deeper transplant of the common law into Chinese
culture this time by way of legal translation instead of political imposition The task
of translating the laws of Hong Kong into Chinese was completed in a timely manner
by May 1997 However the accomplishment of this mammoth task has not ended the
controversy over the translatability of the common law into Chinese In researching
the translation of the common law into French Nguessan (1995) realized that the
terms and concepts of the common law were specific to that system itself and asked
ldquoIf such is the case how is it possible to transfer the law from one language to another
if those two languages express the law of two different countriesrdquo (p iii) [] But as
we have pointed out in chapter 2 this is not the case with the translation of the
common law into Chinese This translation was carried out within the same common
law jurisdiction of Hong Kong and therefore the question of one language expressing
the law of two different jurisdictions simply did not arise The question with which
Hong Kong was and is faced is purely a question of translation namely ldquoIs it possible
to translate the law of one language into another If so howrdquo
65 As for the application of the common law to Hong Kong Wesley-Smith noted
In effect the cut-off date of 5 April 1843 applied in respect of statutes all Acts contained in the
English statute book on that day provided they were general and not purely local in nature and
were not suited to the circumstances of Hong Kong or of its inhabitants were automatically in
force in Hong Kong (1993 p 33)
THE LANGUAGE OF THE COMMON LAW 108
As far as the first question is concerned critics of the bilingual legislation in
Hong Kong were suspicious of the very possibility of translating the common law
especially its terminology into Chinese One common misconception is to regard
English as the only language suited to express the concepts of the common law and
thus reject the possibility of translating the English common law into Chinese Ujejski
(1989) subscribing to Whorfrsquos theory of linguistic relativity expressed his deep
concern about the future of English language in Hong Kong law He remarked
If as Whorff claimed language and thought are inextricably linked and if language including
legal language is indeed a reflection of a culturally based lsquoconceptual realityrsquo we may need
seriously to consider what effects cultural differences may have on the future of the Common
Law in Hong Kong and thus on the language of the law in Hong Kong (p 183)66
For Ujejski the crux of the issue lay in the ldquocultural-philosophical gaprdquo between the
English common law and the Chinese language67 It is true that the linguistic and
66 Contending that it would be impossible to translate the English Common Law into Chinese Ujejski
quoted Cuthbertrsquos following remarks to support his argument
The institution of law in Hong Kong combines a system of rules with a system of institutions
derived from England In the historical evolution of English law philosophical moral and
ethical percepts cannot be abstracted from linguistic structure cultural values and forms of
human behavior Its roots can be traced back to ancient Greece and writings of Plato and
Aristotle Concepts such as lsquotruthrsquo lsquomoralityrsquo lsquoresponsibilityrsquo and lsquocrimersquo are locked both
into precept and language But in 1997 this entire cultural world view will be changed
Although the technology of charters and joint agreements will attempt to operate
homeostatically between the two value systems (capitalist and socialist) the Chinese
population of Hong Kong is already lsquoreality-compromisedrsquo since its semantic and conceptual
vocabularies are rooted to Chinese tradition custom and beliefs It is therefore difficult to
envisage how the present legal system and with it the institutions it supports can possibly
remain in even a fragment of its original state (p 183) 67 Ujejski quoted Michael Thomas a former Attorney General of Hong Kong who expressed a similar
view
THE LANGUAGE OF THE COMMON LAW 109
cultural differences between English and Chinese pose great difficulties in translating
the English common law into Chinese However constraints in translation do not
amount to the untranslatability of the common law In refuting those who upheld the
untranslatability of the common law for reasons based mainly on ldquolinguistic
relativismrdquo which ldquoinsists on the impossibility of dissociating what was expressed in a
language (content) from how it was expressed in that language (form)rdquo Roebuck and
Sin (1993) argued
It cannot be denied that languages have semantic-syntactic gaps Language A has a word for
which Language B has no syntactically unanalysable equivalent hellip examples of
semantic-syntactic gaps show only that symmetry rarely exists between language hellip
Translationrsquos primary task is to convey the various types of meaning which are independent of
the conventionalized arbitrary features of human languages And exact translation as a
meaningful concept must be understood in that context and as a linguistic activity must
proceed under those constraints hellip Unlike poetry which often exploits the special phonological
morphological and syntactic features of a language to achieve aesthetic effects and is therefore
language-bound to some extent law as a social institution is not dependent on language in the
same way hellip It prescribes human behaviour hellip Human behaviour hellip can be described with
similarly sufficient precision in any language The behaviour prescribed and regulated by the
Common Law is no exception (pp 200-02)
The important point to note here is that the law prescribes and regulates human
behaviour in ways which can be described not only in English but also in any other
The difficulty [of translating English statutes into Chinese] lies in the linguistic and cultural
difference between English and Chinese It is a known fact that different cultural communities
organize their internal relationships in different ways This results in legal contexts that differ
both in conception and expression (p 184)
THE LANGUAGE OF THE COMMON LAW 110
language just as the rules of a particular game can be laid down in different languages
such that players relying on different language versions of the rules can play the same
game There is no a priori reason why Chinese cannot be used to express the legal
concepts of the common law Semantic equivalence is achievable in legal translation
as noted in section 223 of chapter 2 Aiming to achieve semantic equivalence the
legal translator should import the source legal culture into the target legal culture an
approach which requires linguistic and conceptual adjustments of the translating
language In the same manner Chinese as the translating language can be expanded to
include newly introduced cultural concepts of the common law
Wong (1999) also denounced as bigotry the view that English is the only
language capable of expressing concepts of the common law He points out that Latin
and French were the languages of court proceedings in England before English took
over the dominant position and that ldquothe reason for the spread of English is political
cultural or economic rather than linguisticrdquo (p 31) However what most troubled
Wong was Section 10C (1) of Chapter 1 of the Laws of Hong Kong which stipulates
as follows ldquoWhere an expression of the common law is used in the English language
text of an ordinance and an analogous expression is used in the Chinese language text
thereof the Ordinance shall be construed in accordance with the common law
meaning of that expressionrdquo (Sect 10C Cap1) Wong (1999) expressed his deep
suspicion of such a semantic interpretation of the translated laws in Hong Kong
Thus constricted the Chinese equivalents of common law expressions are mere symbols in the
most unsophisticated sense of those words They have no meaning of their own however
beautifully rendered they might seem and however much their creator thinks they resemble the
original It matters not one jot (p 31)
THE LANGUAGE OF THE COMMON LAW 111
Actually if this remark is true the same strictures could be applied to any ordinary
native speaker of English who has no training in and no knowledge of the common
law In his case as well the technical expressions he comes across are no more than
ldquomere symbols in the most unsophisticated sense of those wordsrdquo and mean nothing to
him at all In the same vein should we not perhaps blame those who create these
wordsmdashlaw drafters and judgesmdashfor conjuring up such meaningless symbols
Evidently Wong has missed the whole point While it is no doubt true that the
translatorrsquos task is to give a ldquobeautifulrdquo rendition of common law expressions and
provide the closest possible Chinese equivalents the legal meaning of these
equivalents can only be properly construed in the light of the entire semantic
referential system of the common law Secondly Wong is wrong in his explanation of
how language works The ldquomere symbolsrdquo of the Chinese equivalents of common law
expressions are by no means ldquoconstrictedrdquo Instead the Chinese equivalent of a
common law term is defined as the equivalent for its counterpart in English
To provide Chinese equivalents of common law terms is a vital step in
transplanting the common law into Chinese History tells us that whether it was the
Christian Bible or the Buddhist scriptures that were being translated the translator had
to adjust the Chinese language in such a way that foreign concepts could be
assimilated into its conceptual system As a result the translated text was invariably
incomprehensible at the initial stage of assimilation as Sin (1998) put it ldquohellipopaque to
the uninitiated eyesrdquo (p 138) But now the Chinese equivalents of these biblical or
Buddhist concepts have become part of the Chinese language and culture This is also
the case with the common law in Chinese To sum up the problem at issue here is
neither the translatability of the common law nor why it should be translated but how
common law Chinese could be developed with a view to transferring the legal culture
THE LANGUAGE OF THE COMMON LAW 112
of the common law into Chinese The whole case by no means ldquomatters not one jotrdquo
Instead it matters a lot We will further discuss the second question in the following
sections
52 Legal Terminology and Legal Concepts
As has been shown in the previous chapter transferring the legal culture of foreign
laws into China has plenty of precedent Legal concepts and legal principles of the foreign
laws have been imported into Chinese since the Qing Dynasty To transfer the culture of
the common law ie its legal concepts and legal principles into Chinese is thus by no
means a novel venture As we know legal concepts of the common law are specific to
that system and are expressed by means of in its specific legal terminology In the case of
Hong Kong when the Official Languages Ordinance was amended in 1987 to stipulate
that the laws of Hong Kong be available in both Chinese and English the translation of
the common law terminology posed a serious challenge In the following sections we will
look at the specific features of common law English in which legal concepts and legal
principles are embodied and examine the specific problems in translating the Common
Law into Chinese from the aspects of the legal lexicon legislation and case law We will
first investigate the theoretical aspects of the terminology and the relationship between the
common law terminology and the legal concepts they stand for
THE LANGUAGE OF THE COMMON LAW 113
A study of terminology68 calls for an understanding of the form-meaning relationship
of the terms since it forms the basis of our inquiry into the relation between legal concepts
and legal terminology69 Since a word is a lexical unit constituting a term the study of
words constitutes the basis for the study of legal terms According to Saussure the
linguistic sign has two sidesmdashthe signal (the word form) and the significance (the concept)
while the word as a linguistic sign is composed of the word form (the signifier) and the
word meaning (the signified) (1986)70 An essential concept can be expressed and
lexicalized as (and in the form of) a noun a verb or a descriptive adjective In other words
a noun verb and descriptive adjective can signify the same essential concept71 That
concepts and word forms are not equivalent is shown by the fact that one word can have
more than one meaning in the same language72 Lexical relations could thus be illustrated
68 In search of a theory of terminology Sager (1990) defined terminology
hellipas the study of and the field of activity concerned with the collection description processing
and presentation of terms ie lexical items belonging to specialized areas of usage of one or more
languageshellip(p2) 69 A word is typically a single lexical unit while a term could be composed of a single word or a set of
words Terminologies are the technical or special terms used in business art science or special subject
Thus terms used in the language of the law consist of general terms and terms used pertaining to the
special context of the law which can be regarded as its terminology 70 ``Word form will be used here to refer to the physical utterance or inscription and ``word meaning
to refer to the lexicalized concept that a form can be used to express 71 We find that each essential concept when examined carefully has a root expression as a noun a verb
or a descriptive adjective The expression of a concept begins in one of these three word classes
However by affixing appropriate fragments each of these three word classes can (usually) be
transformed into another Conversely by removing these affixes a root expression can be revealed
Thus the underlying essential concept can be said to be independent of any specific word class
Alternatively we could say that all three word classes (noun verb and adjective) provide the same
expression of an essential concept 72 Each meaning of the word represents a different concept Such a word is called polysemy which
means that a word with (at least) two meanings yet sharing a lexical form According to Leech
ldquoSynonymy and polysemy are relation between form and meaning (a) Synonymy more than one form
having the same meaning (b) polysemy the same form having more than one meaningrdquo (1981 p94)
THE LANGUAGE OF THE COMMON LAW 114
according to the analysis of the different meanings of one word which Leech (1981)
defined as ldquoa process of breaking down the sense of a word into its minimal componentsrdquo
(p 89)73 In this regard componential analysis is very useful in understanding the relation
between concepts and words74 The problems of the translation of terminology hinge on
conceptual equivalence since there is not always a correspondence between pairs of terms
in the source and target languages The layperson usually believes that sound knowledge
of the source and target languages and a good dictionary are sufficient for translating a
term in question but even if this were wholly true it would be is in no way sufficient in
technical translating where the translation process is concerned with achieving conceptual
equivalence between two terms75 The degree of conceptual equivalence which exists is a
function of the extent to which the intentions of two or more concepts overlap Typical
degrees of equivalence include 73 Leech said
The meanings of the individual items can then be expressed by combinations of these (semantic)
features
man +HUMAN +ADULT+ MALE woman +HUMAN +ADULT - MALE
boy +HUMAN -ADULT + MALE girl +HUMAN ndashADULT- MALE
These formulae are called the COMPONENTIAL DEFINITIONS of the items concerned they
can be regarded in fact as formalized dictionary definitions The dimensions of meaning
themselves will be termed semantic oppositions (1981 pp89-90) 74 Nida (1975) supplemented the approach of componential analysis proposing that there are three
fundamental classes of components They are
(1) the common components ie those features which are shared by all the meanings being
compared and which accordingly constitute the basis for bringing such meanings together (2)
the diagnostic components ie those features which distinguish the meanings of any set and (3)
the supplementary components ie those additional features often connotative which are
significant in describing all the aspects of a meaning but which may not be strictly necessary in
contrasting a particular set of meanings (p182) 75 Since there used to be doubt that a true translation equivalence is possible because of the difference
of meaning of corresponding words in the two languages while in practice translation equivalence does
exist in the sense that translators in their daily operation select term Y in the TL (target language) as the
translation of term X in the SL (source language) and so one could say that X and Y are translation
equivalents
THE LANGUAGE OF THE COMMON LAW 115
(1) Complete equivalence a term in SL whose concept is the same as the term in TL The
two terms are thus judged to be equivalent
(2) Partial equivalence this can be further divided into two types One is narrower
equivalence where the concept of the term in TL includes fewer characteristics than
that of the term in SL against which it is being measured The other is broader
equivalence where the concept of the term in TL includes more characteristics than
that of the term in SL against which it is being measured
LanguageLanguage
Areaof Shared
Concept
Source Target
Figure 52 Different conceptual divisions across languages
(3) Non-equivalence the term in the SL whose concept does not exist in the TL
The foregoing discussion of conceptual equivalence is directly relevant to the
translation of terminology In cases when one linguistic form in the original language
represents several different concepts which are lexicalized in different linguistic forms in
the translating language such concepts should be understood according to the original
referential system In pointing out the significance of the referential system of the
terminology Sager (1990) remarked
THE LANGUAGE OF THE COMMON LAW 116
A theory of terminology is therefore primarily concerned with a referential system which relates
knowledge structures to lexical structure and defines the constituent elements of each type of
structure (p 14)
For Sager a theory of terminology inevitably involves a theory of ldquoconceptrdquo and
ldquoreferencerdquo as the concept conveyed by an item of terminology can only be construed in
its reference Based on the above definition the common law terminology which is
legally and culturally specific to the common law should be appropriately regarded as a
semantic system ie scientific expression of the system of common law concepts
Accordingly the study of common law terminology is the study of the relationship of the
linguistic signs and their concepts with special reference to common law culture An
investigation into the translation of the common law terminology into Chinese in terms of
cultural transfer will ultimately focus on the translated linguistic signs and their semantic
referential system
We can thus justifiably say that common law terminology is the lexicalized
expression of the concepts built into the common law As Carter (1994) points out
Basic concepts hellip build up in law as cases accumulate hellip they [concepts] do exist in law Often they
turn out to be sufficiently fixed and stable so that lawyers can engineer from them secure plans for their
clientsrdquo (pp 142-143)
This illustrates how significant the existence of legal concepts is in the common law and
how decisive the use of them is for lawyers In the common law legal concepts are
lexicalized or expressed by legal terms The translator has to identify the concept and the
referent that the word in the source language represents But if the translator fails to
THE LANGUAGE OF THE COMMON LAW 117
distinguish all the different concepts and referents that the word in the source language
can stand for she may end up selecting a word in the target language that represents the
wrong concept and referent
Therefore one of the difficulties that the translator may encounter in translating legal
terms is the problem of non-equivalence In some cases the legal concepts that are
expressed by the legal terms do not exist in Chinese There are no words in Chinese to
express some of the most elementary notions of the common law The terms the common
law and equity are only two of the examples There is no system of the common law
and equity in the Chinese legal system (neither in the PRC nor in Taiwan) In addition
many types of institutions proper to the common law have no direct counterparts in China
eg ldquoMagistraterdquo ldquoLands Tribunalrdquo and many others) In other cases partial-equivalent
terms also pose difficulties to the legal translator since one legal term can have both a
specific legal meaning and an ordinary meaning at the same time eg the term
ldquoconsiderationrdquo An equivalent for the ordinary meaning which is shared in Chinese can
be found but the specific legal meaning does not exist in Chinese Could such a Chinese
equivalent if selected as the translation convey the same legal meaning in the common
law For example transferring the expression used for seemingly similar institutions eg
ldquohigh courtrdquo risks blurring the differences between these institutions The common law
term high court could be translated into Chinese as gaodeng fayuan (高等法院)
However this very term as used in the PRC refers to a different legal institution operating
under a socialist legal system Therefore the Chinese equivalent gaodeng fayuan (高等法
院) for the common law term ldquohigh courtrdquo certainly does not mean the same as the
Chinese term gaodeng fayuan (高等法院) as it is already used in the PRC Gaodeng
fayuan (高等法院) as the translation for the common law term can only be properly
construed with reference to the common law system
THE LANGUAGE OF THE COMMON LAW 118
To propose appropriate translation strategies and techniques in translating common
law terms into Chinese requires a clear understanding of the vocabulary used in the
common law in the first place The vocabulary of the common law is multifarious
including as it does terms referring to legal institutions terms referring to legal personnel
terms employed in different branches of law and of course words used in everyday life
The question is how best we should categorize them While different criteria are possible
a classification in line with the relationship between the linguistic form and the legal
concept could be of great direct help and could also hold relevance for further
investigation of translation equivalence in general The classification of the common law
vocabulary discussed in this section will thus be based on the analysis of the term and
concept relation made previously76
(1) Technical terms also called terms of art these are terms used exclusively in the legal
sphere and have no application in ordinary language and they make up a significant
part of common law terminology As terms of art their technical meaning needs
scrutinizing when being translated as they are unique to the common law and have no
equivalent in Chinese It should be noted that most common law terms of Latin or
French origin belong to this category They can be divided into two sub-categories
(a) Technical terms that represent concepts constructing the body of the laws77
(b) Technical terms that represent concepts relating to the judicial mechanism78
76 Alcaraz and Hughes (2002) also divide legal vocabulary into three categories namely ldquopurely
technical vocabularyrdquo ldquosemi-technical vocabularyrdquo and ldquoeveryday vocabularyrdquo (pp154-65) 77 Selected examples include demurrer estoppel fee simple fee tail laches mens rea reprieve
trespass overrule trover and waiver
THE LANGUAGE OF THE COMMON LAW 119
Semi-technical terms these are common English terms which when used in a legal
context acquire a specific legal meaning Such terms are thus polysemous and more
difficult to identify As proposed by Sin (1998) they can be further divided into three
linguistic sub-categories
(a) Terms where the legal meaning is fully shared with the core meaning79 Core
meaning may be used to illuminate the meaning of other senses and all other
senses may be derived from this core meaning combined with contextual
information such as abandonment (fangqi 放棄) attempt (qitu 企圖) confession
(gongren 供認) defence (mianze bianhu免責辯護 kangbian 抗辯) negligence
(shuhu疏忽) public place (gongzhong defang 公眾地方 gongzhong changsuo
公眾場所)
(b) Terms where part of the legal meaning overlaps with the core meaning such as
consideration (daijia 代價 ) discharge (shifang 釋放 ) malice (eyi 惡意 )
representation (shenshu shu 申述書 chengshu 陳述) remainder (shengyu quanyi
剩餘權益)
(c) Terms where the legal meaning deviates completely from its core meaning eg
personal representative (yichan daili ren 遺產代理人) warranty (ciyao tiaojian
次要條件)
78 Selected examples include affidavit certiorari defendant fieri facias habeas corpus mandamus
metes and bounds plaintiff serve proceedings and voire dire 79 By core meaning we refer to the central or most fundamental concept that links the principal senses
of a word to its various other senses
THE LANGUAGE OF THE COMMON LAW 120
(3) Everyday vocabulary terms which are common or ordinary in English They are used
both in special context and in everyday common language and have no specialized
meaning in the common law
Historically and politically the language of the laws of Hong Kong was exclusively
English The Chinese legal terms employed in the PRC legal system and Taiwanrsquos
German-based civil legal system were distinct from those in common law English and as
a result no equivalent legal terms existed in Chinese To achieve conceptual equivalence
in translating terminology the translator has to generate a term in the target language
which can express the same concept as the term in the source language When
terminological concepts are shared in the source and target language the translatorrsquos job
is to find the conceptual equivalent But where one concept in the source language does
not exist in the target language the translator encounters a greater problemmdasha new term
in the target language has to be created which is capable of expressing the same concept
as the original term in the source language
53 The Language of the Legislative Texts and Legal Bilingualism
In the common law legal culture the notion of statutes as the primary source of law
is a recent development whereby an identifiable and sovereign legislature makes all the
rules by which disputes are resolved Making law by legislation is already an
indispensable part of the common law system as noted by Hiltunen (1990) ldquoNowadays
of course judicial principles are laid down through parliamentary legislation in many
areas where there is no tradition in the common lawrdquo (p 16) Section 4(1) of the Official
Languages Ordinance (Cap 5) in Hong Kong stipulates that that all ordinances shall
THE LANGUAGE OF THE COMMON LAW 121
subject to certain exceptions be enacted and published in both official languages ie
Chinese and English The statutory law of Hong Kong before 1997 is derived from the
common law legislation Most of the legislation remained intact after 1997 with little
being repealed or revised The official website of the Department of Justice of Hong
KongmdashBLISmdash is a comprehensive database for updated bilingual laws information and
most of it ldquocontains the statutory Laws of Hong Kong and selected constitutional
documentsrdquo80
For the legislative translator gaining a clear understanding of the language of and
the legal culture embedded in the legislation is a prerequisite to maintaining the legal
meaning intact It is argued that the language of statutes is one of the most complex forms
of language perhaps the most complex Some of these complexities result from the way
in which the law developed historically (Mellinkoff 1963) and some were no doubt due
to bad drafting Yet legislative language as a whole has won a defence from some
linguists
Legislative discourse cannot be said to be purely or wilfully esoteric or archaic or unintelligible as
its critics often say It constitutes a rational functional stylemdashmore accurately it is rational
because it is functional (Maley 1987 p 46)
The lexico-grammatical choices in legislative writing come from the goal of legislation to
provide certainty This requires that the language of legal rules should be precise and
explicit However in reality it is impossible for a legal rule to be so precisely framed that
80 BLIS website httpwwwlegislationgovhkindexhtm accessed on April 16 2008
THE LANGUAGE OF THE COMMON LAW 122
it encompasses all possibilities Therefore against the goal of certainty must be balanced
the goal of flexibility This is achieved through the use of words of general classification
such as place building or vehicle where class membership is open and through words
that allow for a degree of interpretation such as wilful or reasonable A balance between
certainty and flexibility can also be achieved through the interweaving of numerous
qualifications with the main provision This leads to very long sentences that cannot
easily be replaced by shorter sentences at least not without compensating in another
fashion (Bhatia 1994) Another characteristic of statutes noted by linguists is their
relationship with other related statutes ie their intertextuality Intertextuality in statutes
can be realized in a number of different ways through textual mapping devices for
example ldquoin pursuance of section 111 of this Actrdquo (Bhatia 1987) and through complex
prepositions such as ldquoby virtue ofrdquo and ldquoin accordance withrdquo (Swales 1982) They allow
the draftsperson to reduce the amount of information in an already extremely dense text
and signal to the reader where this information can be found In addition they explicitly
locate a statute in the context of preceding legislation and remind the reader of the wider
context in which the statute has to be read
Two other distinct features of legislative language must be noted its normative
nature and its instrumental purpose Legislation is made to confer rights define duties
and stipulate prohibitions purporting to be prescriptive directive and mandatory
Each legislation may contain one or more legal rules or legal norms delivering the
above functions Thus legal rules create legal relationship and identify in what
situation the legal relationship occur Vandevelde (1996) explains how legal
relationship is created in legislative language
THE LANGUAGE OF THE COMMON LAW 123
In general rules of law bear the form lsquoif x then yrsquo meaning that if these facts occur then this
legal right or duties arises Rules of law thus have a factual predicate and a legal consequence (p
19)
Therefore statutes themselves are the rules of law bringing about certain rights and
duties In terms of the basic elements of legal rules Šarčević (1997) analyzed the
famous English barrister George Coodersquos contention that ldquoall legal rules contain the
following four elements legal subject legal action case and conditionsrdquo (p 136)
She agreed with previous criticism of Coodersquos definition of the elements of legal rules
as too rigid since the two elements of case and condition could be combined into a
fact-situation while the other two elements ldquoconstitute the so-called statement of lawrdquo
but noted that ldquoit is significant that he singled out the legal action as the most
important element of a legal rulerdquo (p137) Šarčević (1997) subscribed to the more
recent development proposed by Kelsen and his followers who analyzed the
ldquoprescriptive and descriptive elements of legal rules or normsrdquo and Weinbergerrsquos
assertion that legal rules comprise ldquodescriptive fact-situation (propositional content)
and a prescriptive statement of law (normative content)rdquo (p 137) Thus the legal
translator must identify the normative content of the legislative language The
instrumental purpose of the legislative language is based on the underlying policy that
the legislature intends to promulgate Most statutes address matters of public policy
The public policies that the legislature intends to promote are considered as the
underlying policies on the basis of which rules of law are built The underlying
policies are the intent of the lawmakersmdashwhat kind of rights and duties they purport
to create and what remedies they decide to offer Underlying policy is of great
significance to legal reasoning It was the key element helping to understand the
statutes detect the intent of the legislature and analyze the application of the statutory
THE LANGUAGE OF THE COMMON LAW 124
rules As Bhatia (1983) put it legislation was the law ldquohellipto do justice to the source
rather than to facilitate comprehension of the unfolding text by any particular
readershiprdquo(p 9)
Consequently law is viewed as a normative social practice while the language
of the law being a specialized language written to regulate administer or mediate
the citizen of certain society is declarative or imperative in nature Approaching the
normative nature of the legal language from the pragmatic dimension the speech act
theory inspired by JL Austin and further developed by Searle is appropriate to
explain how the language of law is supposed to guide human behaviour and how it
can give rise to reasons for action The legal speech act is an illocutionary act usually
marked by a performative verb
Hence I shall argue that a legislative textmdasha statutemdashis a rule-enacting document The text as a
whole is considered a speech act with the illocutionary force of enactment this emerges from an
analysis of the language of what is known as the enacting formula of a statute which is an
explicit performative The constituent parts of a statute hellip may be hellip speech acts with the
illocutionary force of ordering permitting or prohibiting as indicated by the modal verb in the
main clause of the sentence (Kurzon 1983 p 51)
The speech act of ordering is typically performed by the use of the modal ldquoshallrdquo
which shows ldquohellip the obligatory consequence of a legal decision and [is] not
simply hellip a marker of future tense which is its normal functionrdquo (Crystal and Davy
1969 pp 206-7) The use of the modal ldquomayrdquo has the illocutionary force of
permission while ldquoshall notrdquo expresses the illocutionary force of prohibition In
considering the legal speech act Šarčević (1997) observed
THE LANGUAGE OF THE COMMON LAW 125
Translation problems arise because legal speech acts cannot be translated literally thus
preventing the translator from simply using the same form of the verb in the target text hellip
Pigeon repeatedly warned hellip against using the future tense in French to translate the English
imperative lsquoshallrsquohellip( p 137)
Bilingual legislation in Hong Kong at present means the enactment of new laws
in two languages namely English and Chinese since the translation into Chinese of
ordinances previously enacted in English has already been accomplished The present
drafting practice in Hong Kong already includes ldquoa translation process since the
English text is normally drafted first and then rendered into Chineserdquo (Lee 1996
p156) In the bilingual legislation context of Hong Kong the translator as both
message receiver and sender is required to construe the English legislation accurately
in such a way that Chinese version is as authentic as the English one81 This means
that the Chinese translation of the English common law must bear the same legal
meaning and have the same legal effect considering both the requirements and the
goals of the translation82 There is a basic presumption for this goalmdashthe presumption
81 ldquoSection 4(1) of the Official Languages Ordinance (Cap 5) now provides that all ordinances shall
subject to certain exceptions be enacted and published in both official languages The Law Drafting
Division of the Department of Justice (formerly known as the Legal Department or the Attorney
Generals Chambers) is responsible for preparing the two language texts of all ordinances and
subsidiary legislation introduced by the Government The first bilingual ordinance was the Securities
and Futures Commission Ordinance (Cap 24) enacted in April 1989rdquo (BLIS website A paper
Discussing Cases Where the Two Language Texts of an Enactment are Alleged to Be Different) 82 ldquoSection 10B (1) states the fundamental principle of equality between the two language versions of
our laws It provides that both language texts of an ordinance shall be equally authentic and the
ordinance shall be construed accordingly This means the Chinese text is neither subordinate to nor a
mere translation of its English counterpart (BLIS website A paper Discussing Cases Where the Two
Language Texts of an Enactment are Alleged to Be Different provided by the Law Drafting Division of
the Department of Justice)
THE LANGUAGE OF THE COMMON LAW 126
of same meaning in bilingual texts83 As elucidated by the Law Drafting Department
the very aim of legal bilingualism is ldquoto introduce common law concepts to the
Chinese language hellip Reference must be made to the meaning as it is found in the
common law The common law must be taken as the semantic reference schemerdquo84
Therefore two legal texts are stipulated to have the same meaning and share the same
system of reference ie the common law
The problems encountered by the legal translator in translating legislation
include two aspects namely cultural and linguistic The linguistic problems in
translating the English into Chinese mainly include (1) Complex and lengthy
sentences (2) frequent use of the passive voice Researches on the language of the
law are numerous and relatively comprehensive From both Mellinkoff (1963) and
Crystal amp Davyacutes (1969) attempts at systematization in the 60s up to the modern
studies carried out by Bhatia (1983 1993) on legislative texts by Kurzon (1984) on
cohesive structures and in Spain by Alcaraz amp Hughes (2002) on the peculiarities of
the English legal structure and its language among others the emphasis has been
increasingly placed on the need to define and describe the legal discourse in its own
context Therefore far from considering the legal text solely from its grammatical and
semantic point of view studies of legal discourse exploit the full range of linguistic
theory and are no doubt also influenced by the pragmatic flavour of other previous
multidisciplinary analyses Bhatia (1983 1987 1993) paved the way for the practical
83 ldquoSection 10B (2) of Cap 1 presumes the provisions of a statute to have the same meaning in each
authentic language text The two texts are taken to communicate an equivalent message in their own
fashion They are but two expressions of the same intent and together constitute one law embodying a
single meaning Words and expressions in one language should be deemed to bear the same legal effect
as their counterparts in the other language of the same legislationrdquo Ibid 84 February 1999 Legal Practice Law Drafting The Common Law and the Chinese Language
THE LANGUAGE OF THE COMMON LAW 127
application of genre theory by suggesting a comprehensive framework for analysing
non-literary genresmdashespecially LSP texts His studies of legislative texts examined in
detail their linguistic features in terms of preparatory qualifications cases and
conditions in an attempt to fill the gap caused by inadequate attention to training in
legal language in legal education system Bhatiarsquos work has shed considerable light on
the writing preferences of legal drafters Following Hallidayrsquos functional approach
Maley (1994) also researched legislative discourse by examining generic structure and
legal performatives He stressed the ways in which mandatory permissive or
discretionary elements in legislation determine the use of performative or operative
verbs (pp 20-21)
Let us look at the problem from the viewpoint of legislative drafting A rule of
law regulates behaviour in society It must be clearly formulated categorically stated
and accessible in terms of form The underlying logical structure of a rule of law and
its textual formulation are not always identical so recipients often have to construe
the relation between logical structure and the text Most importantly a rule of law
always exists as a logical proposition even if this not set forth formally in a statute
However when formally recorded one rule may be embodied in several texts
Although its textual formulation may sometimes be unclear or unambiguous the
logical structure of a rule of law always remains clear since the logical structure of the
legal rule determines the arrangement of its textual elements The so-called legislative
sentence is a sentence designed to confer rights or powers or to impose duties and can
also be used for prohibitions A mastery of the legislative sentence is useful for all
legal translators Legal rules expressed by the legislative sentence have a consistent
framework for their component parts divisions sections subsections and other
segments These linguistic conventions which may pose certain problems for the
THE LANGUAGE OF THE COMMON LAW 128
legal translator actually provide a framework for the legislative drafter The legal
translator should know how the rule was developed about the underlying intentions of
the drafter and about how the rule-maker wants the rule interpreted85 This may place
a heavy burden on the legal translator and it is also a burden that the legal translator
has to remove from othersrsquo shoulders Although a plain writing style was not a new
style for rules written in England ldquomost of the legal documents follow the basic rules
that were written 150 years ago by an English barrister by the name of George Cooderdquo
(Watson-Brown 1998 p 23) Coode developed a model legislative sentence which
has been adopted by drafters in most Commonwealth countries and in some American
states Coodersquos model has also influenced the drafting of clauses in legal documents
especially contracts86 Although Coodersquos analysis has been criticized by some legal 85 Generally there are three well-established interpretation rules supposedly to guide lawyers and judges
the literal rule the golden (or purposive) rule and the mischief rule The literal rule simply means
giving the text its ordinary everyday meaning and applying it exactly as written This rule came into
prominence in the 18th century The literal rule was founded on the assumption that words chosen by
Parliament in the Act (or any legislature in any law) clearly showed their intentions in passing that Act
(Holland amp Webb 1991 p 66) What the literalist would be looking for is the primary or most obvious
meaning of the word not any general meaning or secondary meaning (Ibid pp 166-167) The literal
rule is admittedly a workable criterion for statutory interpretation The golden rule meant that words
should be construed in their ordinary sense unless that would lead to absurdity or inconsistency in
which case the senses of the words might be modified to avoid that absurdity and inconsistency (Cross
1987 p 14) The mischief rule seeks to discover the real intention of the legislature and represents a
somewhat more purposive approach to interpretation which sets out the job of the judge as to determine
what defect in the common Law the statute set out to remedy and apply what is ascertained to be the
intention of parliament There are other three rules which guide the statutory interpretation the rule of
ejusdem generis (lsquoof the same kindrsquo) the rule of noscitur a sociis (lsquoa thing is known by its associatesrsquo
[also known as the rule of rank] and the rule of expressio unius est exclusio alterius (lsquothe mention of
one thing is the exclusion of anotherrsquo) (Cross 1987 p 136) 86 According to Coode most law is designed to change the position of a person or a class of persons by
conferring a right privilege or power or by imposing a duty To carry out these functions effectively a
legislative sentence should contain four elements the legal subject which is a description of the person
or class of persons who is given a power or duty or whose legal position is otherwise affected by the
THE LANGUAGE OF THE COMMON LAW 129
theorists as too rigid it remains a good starting place because it suggests the kind of
analysis drafters should attempt before starting to draft87 The complex and lengthy
sentences of the model were drafted expressly for the purpose of formulating legal
rules and enabling a drafting convention to be followed Since legal texts (statues
treaties contracts) defend the rights of a person or group or impose obligations their
drafters must pay ldquoscrupulous attention to making sure that the legal text is hermetic
and unambiguousrdquo (Taylor 1998 p 130) Admittedly the efforts to achieve a
hermetic and unambiguous text often result in a text that can be ldquoat times seemingly
impenetrable syntactically complex full of apparent redundancyrdquo (p131)
Another problem that the legal translator encounters is the use of passive
structures When using the passive voice a statement acquires an air of mystery as the
actor remains unknown until after the action is stated An omission of the actor
renders the statement even more mysteriousrdquo (p 23) Such an air of mystery is
operation of the law the legal action which is a description of the legal action or legally significant
impact that will result from the operation of the law and the case which is a description of the facts that
must have occurred the circumstances that must be present and the conditions that must be met for the
law to operate In the classic legislative sentence these three elements are arranged in the following
order
(1) the case is set out first in one or more subordinate clauses introduced by ldquoifrdquo ldquowhererdquo or
ldquowhenrdquo
(2) next comes the legal subject The legal subject is also the grammatical subject of the main
clause The legislative sentence ends with the legal actionmdasha description of what the legal subject may do or is
entitled to claim or must do or must not do 87 Admirable as it is Coodersquos model has certain problems One is that it relies on a left-branching
sentence structure Another problem is that it encourages drafters to equate a legal provision with a
self-contained legal unit on the one hand (the section article or clause) and with a self-contained single
grammatical unit on the other (the sentence) The final problem is that Coodersquos analysis of legal action
the third element of the legislative sentence is narrowly focused on rights duties and powers It
ignores definitions and other types of declarations
THE LANGUAGE OF THE COMMON LAW 130
preferred by the legal drafters since the passive voice conveys the kind of objectivity
and lack of bias that legal rules are supposed to exhibit Consequently the legal
translator may find this particular linguistic problem hard to solve since legal English
creates linguistic patterns that are particularly difficult to translate directly into
Chinese However it is possible to write legal rules as Watson-Brown suggests ldquothat
will reflect (upon translation) the same meaning without tortuous Chineserdquo (1998 p
23)88 The legal translator does not necessarily follow the sentence sequence of the
English legislative text Instead he can use sentence structures idiomatic to Chinese
as long as the original meaning can be delivered
As can be seen from the discussion above past research on legal translation was
under the influence of the linguistic approach to legal translation mainly concerned
with the linguistic features of legislative language Inspired by applied linguistics
Alcaraz amp Hughes (2002) put forward the idea of ldquoindirectrdquo legal translation which
aims ldquoto produce on the target reader an equivalent effect to that produced by the
source textrdquo (p 180) Instead of explaining how the equivalent effect could be
produced on the target reader they mainly discussed the linguistic features of
legislation and the linguistic problems confronting the legal translator in the aspects of
ldquomodifiersrdquo ldquoadverbsrdquo ldquosyntaxrdquo ldquothematization and ldquotextual coherencerdquo To deal
with such problems they suggested three techniques ie transposition expansion and
modulation (pp 186-192) However they seemed to have ignored a more significant
88 Waston-Brown (1998) also proposed some solutions to the English legal drafter in terms of avoiding
pitfalls in bilingual legislation
(3) Use the active voice the present tense and indicative mood
(4) Use an intuitive syntax leaving the verbal qualifications until the end of the sentence
(5) Use short sentences by deleting lsquoandrsquo when it joins two principal clauses and
(6) Learn Chinese syntax and attempt to match it with the English text (p23)
THE LANGUAGE OF THE COMMON LAW 131
problem besetting the legal translator namely the cultural problemŠarčevićrsquos (1997)
contention that legal translation is not linguistic transcoding did not prevent her from
approaching legal translation both from a linguistic and a cultural perspective She
studied syntactic features of the legislative text and noted that ldquothere is essentially one
basic underlying thought pattern hellip the basic logical structure of legal rules is
expressed by the formula if P then Qhelliprdquo basing her analysis on Coode (p 162) She
also discussed other stylistic features of legislation such as the use of negation and the
impersonal Šarčevićdid not find herself totally constrained by the linguistically
prescriptive aura of legal translation She suggested in fact that legal translators could
be creative in translation She realized that a ldquotranslatorrsquos greatest challenge when
translating the fact-situation of a legal rule is to find suitable ways of compensating
for conceptual incongruencyrdquo (p 149) She exemplified this conceptual incongruency
by citing an example from the Canadianrsquos experience of bilingual legislation In this
example the selection of the common law term ldquowilful conductrdquo as the equivalent for
dol in French caused confusion since the term ldquowilful conductrdquo ldquoincludes not only
acts performed with intention but also acts performed carelessly without regard to the
consequencesrdquo (p 150) Instead of providing a solution for the problem however she
merely commented that the use of descriptive paraphrase by Canadarsquos legal translators
was not a good way to overcome conceptual incongruency (p 151)
The researcherrsquos preoccupation with the linguistic problems of legal translation
may be justified if we view translation as a pure process of linguistic transcoding
However linguistics alone cannot help us to see the whole picture Roebuck and Sin
(1993) rightly pointed out
THE LANGUAGE OF THE COMMON LAW 132
The existence of semantic gaps only proves the truism that different languages have different
ways of organizing the semantic fields of their basic vocabularies Although there are hardly
one-to-one correspondences between them a simple predicate in one language can almost be
mapped onto several correlative predicates in another hellip Likewise the existence of syntactic
gaps only show that different languages have different rules for generating acceptable formal
structures which are simply habitual ways of ordering phrasal and sentential components hellip
Accordingly examples of semantic-syntactic gaps show only that symmetry rarely exists
between languages hellip Translation as a linguistic activity for facilitating communication
between different language communities must take that linguistic fact as its starting point but it
decides nothing Translationrsquos primary task is to convey the various types of meaning which are
independent of the conventionalized arbitrary features of human languages And exact
translation as a meaningful concept must be understood in that context and as a linguistic
activity must proceed under those constraints (pp 200-201)
Thus Linguistic problems are not as difficult as the theorists reckoned them to be The
translatorrsquos greater challenge is the cultural problems to be faced in the process of
translation of legislation (or bilingual legislation) as Sin (1992) pointed out
The creation of a Chinese Common Law vocabulary for the rewriting of the Common Law in
Chinese will signify a large-scale assimilation of the entire English legal tradition into Chinese
culture (p 98)
The construction of every legislative rule was a process of conceptualization and the
legal drafter ldquowill usually draft from a precedentrdquo as Watson-Brown observes (1998
p23) To summarize the aim of bilingual legislation is to rewrite the common law in
THE LANGUAGE OF THE COMMON LAW 133
Chinese and the two parallel legal texts namely English and Chinese share the same
system of reference ie the common law
54 Case Law Languagemdashthe Language of Judges
In the common law the notion of statutes as the primary source of law is a
recent development and beneath the burgeoning corpus of statues of the past years lie
the bulk of the common law the collection of judgesrsquo judgments that makes all the
rules by which disputes are resolved Judgments are law in action an abstract legal
rule is applied to a set of facts to solve a concrete problem and the solution is justified
Judges actually play an important and integral part in the common law system as it
has evolved In the common law system a judge is first called upon to find the law
next to interpret it then to articulate it and finally to apply it to the facts and the
situation presented in the courtroom It is the first two steps to find the law (with the
help of counsel) and to interpret it which come closest to the business of actually
making law Although much of the primary onus for the making of rules now lies on
the legislature it is still acknowledged that the common law system has historically
preferred to make law by adjudication than by legislation Consequently judge-made
law still plays and will play a significant part in the common law
In the case of Hong Kong where the law is built upon the common law judicial
precedents thus carry the same legal weight as legislation The legal rules and
principles that judges use to resolve present disputes will be applied to similar
disputes in the future As judicial precedents which are all reported in English are the
bases for the interpretation and application of statutes in the common law system it
THE LANGUAGE OF THE COMMON LAW 134
will be difficult for legal practitioners to cite authorities in bilingual judicial
proceedings if there are no Chinese supporting materials for the respective ordinances
Besides as a judgment carries legal weight the translated version should be written in
precise language that captures the exact legal meaning of the original Translation of
binding precedents is therefore no less important than the translation of statutes
However in Hong Kong only a number of selected judgments have been translated
into Chinese The following reason was provided by the Department of Justice
(2004)89
The principles of the Common Law are to be found in the judgments of the courts both in Hong
Kong and in other Common Law jurisdictions around the world The language in which those
judgments have been delivered over the years is almost exclusively English There are hundreds
of thousands of reported cases which form the basis of the Common Law and it would
obviously be impractical to attempt to translate these into Chinese While in future there is likely
to be an increasing number of judgments in Hong Kong delivered in Chinese English will
continue to be the only medium in which the majority of judgments from overseas is reported
Given the above-mentioned constraint there is no denying that translating English
judgments into Chinese is of great significance and we must now explore the
language of the judgments and the difficulties encountered in the translation process
To solve the problem of cultural transfer in translating common law judgments
into Chinese requires the legal translator to fully understand the language of the
judgments in the first place Judgments can be found in law reports These serve as the
89 The passage is quoted from the Department of Justice website Information based on the
Departmental publication Legal System in Hong Kong printed in 2004
THE LANGUAGE OF THE COMMON LAW 135
written record of the explanation that judges give of their reasoning and they enable
ready access to previous judgments90 Generally judgment as a form of law is
formal and authoritative The common law judge writes opinions as a narrator of the
law91 The prestige he enjoys in his professional milieu allows him to fully and openly
assert his own interpretation of the law and to present it in through argumentation
Consequently the decision-giving process involves two intertwined process namely
the interpretation of the legal rules that are being applied to the specific case and
factual situation and the argumentation supporting why a decision is made in one way
rather than another Although each judgment will to some extent reflect the individual
styles of the judge arriving at it it will always stand on these twin pillars of
argumentation and interpretation92 These modes in turn can shape the distinctive
features of the language of judgments93
90 A judgment can be divided into four components The first component is a brief description of the
important points in a particular case The second component is an introduction It gives the readers a
general idea of the case The third component is a list of cases referred to in the judgment The fourth
and the most important component is the main body of the judgment It is in this part that the opinions
of the judges are delivered 91 The main body of the judgments has two parts ratio decidendi and obiter dictum As the rationale of
particular judgment ratio decidendi states the underlying principle of law and represents the logical
basis of judicial decision Unlike obiter dictum which is the remark or observation made by a judge
while issuing a ruling ratio decidendi has binding force 92 After examining some technical and semi-technical legal terms that judges frequently use in giving
their decisions Alcaraz amp Hughes (2002) observed that ldquoin keeping with the British tradition of
strongly reasoned judicial opinion judgments are often couched in a style that is flavoured with the
personality of their makerrdquo (p 114) In addition to their role in convincing the parties judges also argue
about the appropriateness of the norm being applied (the stare decisis function of judgments) Thus
judicial opinions are also aimed at persuading their readers of the correctness of the decision reached
Modes and means of persuasion such as explicit argument rhetoric metaphor and syntax are
sometimes language-specific and this may cause difficulties to the legal translator 93 Since many legal disputes are battles over the meaning of a statute contract testimony or the
constitution judges must interpret language in order to decide why one proposed meaning overrides
another And in making their decisions about meaning appear authoritative and fair judges often write
THE LANGUAGE OF THE COMMON LAW 136
Judicial language thus constitutes a special genre and research into the language
of judges has revealed a number of linguistic and legal problems which can ensnare
the translation process Judgments are important texts in legal education and
constitute a considerable amount of the required reading of law professionals A
generic structure of judgments had been identified (Bhatia 1993) as well as a
relationship between the structural elements and the communicative functions of
declaring and justifying Alcaraz amp Hughes (2002) considered that linguistic problems
affect ldquoonly the tone and style of the judgment and are in no way concerned with
matters of lawrdquo (p 115) One prominent linguistic feature is the use of the first person
singular Another is the flavour of relatively colloquial expressions introduced in
order to ldquotemper the severity of the law to make the opinion sound more humane and
to create an impression of reader-friendlinessrdquo (p 116) Maley (1994) also approached
the use of the first person singular from the view of modality which he found played
an important role in the justifying function of judgments He cited a famous speech
delivered by Lord Atkin as an example of the semantics of modality Elaborating on
Hallidayrsquos distinction between two kinds of modality modalization and modulation
Maley explained
about the nature of linguistic interpretation Thus the language itself serves an interpretive function
Both legal interpretation and legal reasoning concern the application of legal rules Every rule is
formulated within a certain context but does not explicitly reflect that foundation The background
comprises the elements of the time the place the reason the process and the people who make the rule
Once a legal rule is written down in the form of language it loses its background simply because of the
inherent limits of language This linguistic constraint makes the application of legal rules all the more
difficult Where a judgment seeks to justify a particular interpretation of a norm the judicial opinion is
actually an exercise in persuasion it is a subtle interweaving of a statement of a legal norm and the
justification for both the normative content and the form in which it is stated Judges must be free to
use rhetorical techniques that are central to the persuasive force of a text
THE LANGUAGE OF THE COMMON LAW 137
Modalization expresses the varying degrees of probability and usuality while modulation
expresses the various degrees of obligation and inclination Both modalization and modulation
are expressed from the viewpoint of the speaker they can nevertheless be expressed as thoughts
they are objective or subjective In Lord Atkinrsquos speech hellip when he projects lsquo[persons] that I
ought reasonably to have in contemplationrsquo from lsquothe answer seems to behelliprsquo the latter [is] an
example of an objective modalisation and the former a subjective modulation That is Lord
Atkin is saying what in his opinion the law should be (1994 p46)
Maley (1994) thus concluded that ldquomodalisation and modulation are the chief
linguistic means of expressing the justificatory and declaratory functions of
judgmentrdquo (p 46) Unlike the consistent formal and authoritative language of the
legislation the language of judgments may be tainted with the personal style of
individual judges The legal translator should always take into consideration the need
to preserve the stylistic feature of judgments
Solan (1993) carried out a detailed examination of the linguistic aspects of the
law to illustrate ldquohow and why judges write about the structure and meaning of
language to justify their decisionsrdquo (p 1) Solan used various examples to illustrate
the way linguistics entered the process of judicial decision making analysis of the use
of adjectives in jury instruction analysis of the relationship between adverbs and
prepositional phrases and cases focused on the meaning of certain words in the
legislation Judges often faced linguistic issues when lawyers attempted to interpret
legal rules in the legislation or legal principles laid down in previous judgments in
favour of their own clients (p 28) The final decision rested with the judges
THE LANGUAGE OF THE COMMON LAW 138
hellip the judge hellip will often resort to legally recognized principles of interpretation such as
attempting to divine the intention of the drafters of the document On occasion these principles
are linguistic and it is upon these that I will focus hellip Included among the examples are a
linguistic-legal principles called the last antecedent rule principles governing the interpretation
of conjunction and disjunction (and and or) rules for the interpretation of pronouns and a
debate about the proper scope of adjectives (Solan 1993 p 28)
The above mentioned jurilinguistic principles are a useful starting point when trying
to understand the linguistic problems that the legal translator may encounter The ldquolast
antecedentrdquo rule is the doctrine of interpretation that states that the qualifying words
or phrases in a statute refer to the immediately preceding language unless common
sense indicates that they were intended to apply to something less obvious or more
distant It thus forms an interpretive guide that courts may use to decipher uncertain
statutory language94 In summary a linguistic approach gives us some valuable
insights into the language of judgments and their interpretative rules
In legal translation it is crucial for the translator to understand the underlying
legal principles and legal reasoning in order to transfer the culture of the case law into
Chinese As already shown above rules and principles in each subject of the law have
been developed into concrete and coherent constructions that make up the common
law today These rules and principles have been consistently developed by judges in
94 The andor rule is an interesting and controversial one Legal drafters try to be clear by using
ldquoandorrdquo However there are still many case laws interpreting these two conjunctions Although courts
generally prefer interpretations that make sense of language over ones that turn it into nonsense the
judicial interpretation of ldquoandorrdquo is sometimes an exception How this could be implemented in an
adversarial system was somewhat difficult to see since the interpretation of statutes and legal principles
was considered to be a question of law and therefore the domain of judges (Tiersma 1999 p 130)
THE LANGUAGE OF THE COMMON LAW 139
their decisions95 In section 33 of chapter 3 we have identified the very culture of the
common law as a set of legal concepts and legal principles The concrete
representations of this culture are evident in the various judgments Legal principles
derive from the process of legal reasoning while legal reasoning is based on legal
principles The two are inseparable in a judgment A definition of legal reasoning
given by Carter (1994) described its composition
Legal reasoning describes how a legal opinion combines the four elements the facts
established at trial the rules that bear on the case social background facts and widely shared
values When judges reason well their opinion harmonizes or lsquofits togetherrsquo well these four
elements (p 15)
Carter (1994) also pointed out that ldquoJudicial opinions hellip give meaning to all types of
legal rules hellip precedents in many cases are vehicles for rationalizationsrdquo (pp15
143)96 This means that only if we understand the judicial opinions can we understand
the meaning of legal concepts or principles and hence case law as a whole97 Maley
(1994) thus concluded that ldquocommon law judges do not regard the application of the
95 The common law system is based on the legal principle of deciding points in litigation according to
precedent This applies both to application of the common law and interpretation of statute Under this
principle decisions of courts on matters of law are binding on subordinate courts or tribunals and if
not binding are highly persuasive on the court itself or equivalent courts 96 It is argued that there are at least three things which legal theorists could mean by legal reasoning (a)
reasoning to establish the existing content of the law on a given issue (b) reasoning from the existing
content of the law to the decision which a court should reach in a case involving that issue which
comes before it and (c) reasoning about the decision which a court should reach in a case all things
considered 97 Reasoning by analogy is integral to legal reasoning in the common law Any theory of legal
analogizing that seeks to explain the way in which precedents are utilized must account for the
influence of legal principles on the creation of legal analogies and for the use of analogies as a means
to test and refine these principles
THE LANGUAGE OF THE COMMON LAW 140
principle of law to the facts of the case as a purely mechanical process Reasoning is
involved a kind of reasoning by analogyhellip In giving judgment judges hellip make
explicit the reasoning processes which have led them to that decision the cases they
have considered the analogies they have considered and rejectedmdashin short their
individual lsquofullest examinationrsquordquo (p 43) Legal analogizing thus plays an important
role in determining the scope of principles themselves98
Let us take an example from criminal cases to illustrate how legal principles in
the judgments might be identified In the common law tradition the vast majority of
criminal law is un-coded and the legal concepts and legal principles could be found
only in the judgments One essential legal concept in criminal law is mens rea This
focuses on the mental state of the accused and requires proof of a positive state of
mind such as intent recklessness or wilful blindness Some level of mens rea is
always a required element of the crime with which the accused is charged and must
be proven by the prosecution Therefore the principle of mens rea is the fundamental
principle of the criminal law In the famous mens rea murder case R v Nedrick 99 it
was made plain by Lord Lane CJ that the mens rea of intent could be inferred by a
jury when the defendant knew that death or really serious injury would come about as
a ldquovirtual certaintyrdquo of the act contemplated and done The House of Lords held in R v
Woollin100 reasoning by analogy that the principle of mens rea was applicable to the
present issue However it developed the principle of mens rea by suggesting that the
use by the trial judge is of ldquosubstantial riskrdquo rather than ldquovirtual certaintyrdquo Actually
98 Principles are empty unless tested by reference to concrete examples Any complete model of legal
reasoning and legal analogizing must simulate the manner in which principles influence the creation of
analogies and the way in which principles are themselves tested and refined on a case by case basis 99 [1986] 1 WLR 1025 100 [1998] 3 WLR 382
THE LANGUAGE OF THE COMMON LAW 141
there are other cases that address the principle of mens rea ie R v Moloney 101 and
R v Hancock and Shankland102 These cases worked together to clarify the legal
concept and legal principle of mens rea especially the meaning of intention in terms
of acts that cause grave bodily harm or death
We can see that judgments are part of a community and part of a tradition103
Judgments are law in action where abstract legal rules are applied to solve concrete
problems and its justification are provided Most importantly judgments state what
the law is and define the legal concepts and legal principles embodied in the law In
other words judgments make up the most substantial part of the referencel system of
the common law against which the legal terms should be construed Therefore we
need resort to judgments for the real meaning of a translated legal term in the
legislation in order to understand the concept it stands for and related legal concepts
and legal principles In this sense translation of judgments is one of the most
important ways of building a metalinguistic mechanism for the common law As
noted in section 223 of chapter 2 cultural transfer is eventually effected by
metalinguistic operation as such
101 [1985] 1 All ER 1025 102 [1986] 2 WLR 257 103 In this connection Goodrich (1990) remarked
The Common Law will always exceed its particular texts its particular references its positive
forms To know the law is a matter of knowing an antique and unwritten tradition that exists
outside of history beyond all texts in the inaugural realm of things divine and to be divined
(augured) In Cokersquos words even where it is a matter of reading the law it is a question of reading
not simply the words of the text but also the tradition that accompanies them ( p 117)
Chapter 6
Cultural Transfer in Translating the Common Law into Chinese
61 Transfer of the Legal Culture of the Common Law
611 Problems in Translating the Common Law into Chinese
As we saw in the previous chapter the language of the common law is a complex
collection of linguistic habits that have been developed over many centuries one that
judges lawyers and other legal professionals have learned to use strategically Its
distinctive linguistic features accordingly reflect the underlying conceptual thinking of
such users In the same chapter we found that the legal culture of the common
lawmdashits legal concepts and legal principlesmdashis intricately woven into the texture of
its language In this section we will further analyze how both the legal culture and the
language of the common law pose difficulties to the legal translator as she sets about
her work
The problems that arise when translating the common law into Chinese are
closely related to both the legal culture of the common law and the specific features of
English legal language and we can categorize them into two major groups
(1) Problems arising from cultural differences between English and Chinese
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 143
The most daunting aspect of translating the common law into Chinese is the
culture-specific quality of the source legal texts In many cases a difference in the
mere form of wording amounts to a difference in law
For instance if A lends money to B on mortgage and stipulates that the interest shall be 5 per
cent but if not paid promptly 6 per cent the latter part of the provision is void as a penalty Thus
B need pay only 5 per cent even if he does not pay promptly Yet if A had provided that interest
should be 6 per cent but if paid promptly 5 per cent the whole would have been good (Williams
1948 Jan pp 78-9)
In essence both provisions stipulate the same thing B to pay 5 per cent if he pays
promptly if not 6 per cent Yet the first formulation is not allowed by law whereas
the second is allowed Following the wording of the source text would seem to be a
play-safe strategy in legal translation and in the present case there is no immediately
apparent reason for the translator to deviate from the original wording But consider
the following case
If A gives property on trust for B lsquobut if B marries then for Crsquo the gift to C is struck out because
it tends to induce B to remain unmarried and the procreation of legitimate children is regarded as
a public interest Thus on this form of words B will take absolutely But if the words used were
lsquoon trust for B until he marries and thenceforth for Crsquo the gift over would be valid and B would
lose the property if he were to marry (Ibid p 79)
Here we meet the famous distinction between ldquobut ifrdquo and ldquountilrdquo in English law
Again it is obvious that both of the formulations under scrutiny intend to stipulate the
same thing B must give up the property to C once he marries However the
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 144
formulation using ldquobut ifrdquo is regarded as void whereas the one using ldquountilrdquo is valid
The translator may well find that her translation of the second formulation into
Chinese ldquo甲以信託形式將財產贈予乙直至乙結婚為止屆時財產將改贈予丙rdquo
looks rather clumsy and so turn instead to the wording of the first formulation which
looks simpler and more natural ldquo甲以信託形式將財產贈予乙 但如乙結婚 則改
贈予丙rdquo If she does this however she will have turned the original valid formulation
into an invalid formulation
As judicial decisions are sometimes arrived at purely on the particular words
used in a particular case changing the wording of the source text risks producing the
opposite legal effect in the target text This is why lawyers are so cautious over the
words they use This is also why the legal translator is often instructed not to deviate
from the wording of the source text
At a higher level the particular sentence structure of a statute may embody the
spirit of the common law According to Francis Cheung (1991) a penalty provision in
English criminal law is invariably formulated in the negative which is a manifestation
of a fundamental principle of the common law namely the ldquoresidual principlerdquo (pp
304-05) This principle accords citizens freedom to do whatever they like so long it is
not expressly prohibited by the lawmdashfreedom is whatever the law does not expressly
prohibit In contrast traditional Chinese law accords people freedom to do those
things allowed by the lawmdashfreedom is whatever the law allows To illustrate this
point he cited as an example the translation of a section of the Film Censorship
Ordinance 1988
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 145
15 (1) A person shall not exhibit a film in respect of which a certificate of exemption has been
issued under section 9 or a certificate of approval has been issued under section 13 unless the
certificate or a legible photocopy thereof is displayed and kept displayed in a conspicuous
position in or about the entrance to the part of the place intended to be occupied by persons
viewing the exhibition of the film during the period of exhibition of the film
The section was translated into the following two alternative versions
Version 1
15 (1) 任何人上映影片須在影片上映期間將根據第 9 條發給該影片的豁免證明書或其
清晰影印本或根據第 13 條發給該影片的核准證明書或其清晰影印本一直展示在用以容
納觀眾觀看該影片的場所入口或近入口處的當眼位置否則不得放映該影片
Version 2
15 (1) 無論何人不得上映根據第 9 條獲發豁免證明書或根據第 13 條獲發核准證明書的
影片除非在該片整段放映期間將上述證明書或其清晰影印本[或上述核准證明書或其
清晰影印本]展示在用以容納觀眾觀看該影片的場所入口處或近入口處的當眼位置
Cheung noted that Version 1 was more fluent but since it was formulated in the
affirmative and therefore unable to reflect the spirit of the residual principle it was
eventually not adopted On the other hand even though Version 2 sounded a little
unnatural in Chinese it was adopted as the official translation since it conformed to
the legal norm for penalty provisions
Thus in legislative translation the linguistic features of the source text often
dictate how it should be translated Preserving the linguistic features of the source text
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 146
is not as Vermeer and Snell-Hornby alleged transcoding but preserving the culture
of the source text
The language of the common law is also a manifestation of a series of
traditionally well-formed legal concepts These conceptions are the philosophical
foundations of the common law tradition and the basis of the legal principles
cultivated by legal reasoning unique to the conceptualization of the common law
Some common law terms for example are noted for their generality and abstractness
eg ldquoreasonable personrdquo or ldquodue processrdquo Common law language also employs
many abstract concepts that ldquodo not take their meaning from sensed experience but
are normative in characterrdquo (Farrar amp Dugdale 1990 p 77)67 The legal translator
must thus overcome the conceptual differences between English and Chinese Having
shown that legal concepts and legal principles are the major elements in the culture of
the common law we now need to discuss how they pose problems for the legal
translator The following example is taken from the frequently cited case Donoghue
(or MrsquoAlister) v Stevensonmdashthe ldquoPaisley snailrdquo case68 In the case Lord Atkin made
a famous speech which constructed the foundation of the modern law of negligence69
67 Farrar and Dugdale (1990) created a vivid simile to illustrate the importance of concepts in the
Common Law They remark ldquoIndeed conceptual thinking came to dominate the English Common
Lawhellip Concepts are more like chess pieces They can be maneuvered to produce certain results but the
players have a choice as to the move Similarly lawyers and judges often have a choice as to how they
will move the concepts They way in which they are moved and are applied to facts involves a process
of reasoning helliprdquo (p 78) 68 In this ground-breaking case a woman May Donoghue claimed to have been made ill by a bottle of
ginger beer she had bought in a cafeacute in Paisley Mrs Donoghue sued not the proprietor of the cafeacute but
the manufacturer of the drink She argued that the manufacturer had been negligent in not noticing that
the bottle contained a snail before filling it with ginger beer and sealing it Donoghue v Stevenson was
ground-breaking in Scots law as previously the customer would have been expected to sue the
shopkeeper rather than the manufacturer with whom she had no lsquocontractrsquo However in this instance
the drinkrsquos manufacturer was found liable for damages as they had neglected to provide a system to
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 147
Firstly it is evident that there are many terms peculiar to the Common Law such
as ldquoduty of carerdquo ldquoliability for negligencerdquo ldquoacts or omissionsrdquo ldquoreliefrdquo ldquoremedyrdquo
In the Common Law duty of care is the legal obligation as a citizen in societymdashit is a
question of law that requires the judge to determine if the duty is under a legal
obligation to exercise reasonable care in favour of the plaintiff Thus mastering the
cultural implications of the above legal concepts the ldquocultural immersionrdquo suggested
by Curran (1998 p 83) was a pre-requisite for the legal translator to comprehend
thoroughly the meaning of the English legal text As noted in section 52 of chapter 5
the effort to find Chinese equivalents for the above English terms would be futile
since there are no terms available in Chinese to express some of the most elementary
notions of the common law The legal translator in Hong Kong has to overcome the
difficulty of translating terms expressing concepts which are absent in Chinese
protect the public in such a way that lsquosnails would not get into the said bottle render the said
ginger-beer dangerous and harmful and be sold with said ginger-beerrsquo 69 Lord Atkinrsquos remarkable judgment in this case reads in part
At present I content myself with pointing out that in English law there must be and is some
general conception of relations giving rise to a duty of care of which the particular cases found
in the books are but instances The liability for negligence whether you style it such or treat it as
in other systems as a species of lsquoculparsquo is no doubt based upon a general public sentiment of
moral wrongdoing for which the offender must pay But acts or omissions which any moral code
would censure cannot in a practical world be treated so as to give a right to every person injured
by them to demand relief In this way rules of law arise which limit the range of complainants
and the extent of their remedy The rule that you are to love your neighbour becomes in law you
must not injure your neighbour and the lawyerrsquos question ldquowho is my neighbourrdquo receives a
restricted reply You must take reasonable care to avoid acts or omissions which you can
reasonably foresee would be likely to injure your neighbour Who then in law is my neighbour
The answer seems to bemdashpersons who are so closely and directly affected by my act that I ought
reasonably to have them in contemplation as being so affected when I am directing my mind to
the acts or omissions which are called in question (Donoghue (or MrsquoAlister) v Stevenson [1932]
All ER Rep 1 [1932] AC 562 House of Lords [1932] AC 562)
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 148
Secondly since a set of legal principles is formulated and developed by the courts
based on the significant legal concepts of the common law any lack of methods to
represent these legal principles constitutes another problem For example the common
law concept of tort consists of a breach by the defendant of a legal duty to take care not
to damage the plaintiff or his property and consequent damage from that breach Lord
Atkin in this leading case of Donoghue (or MrsquoAlister) v Stevenson held that while the
decided cases might each examine particular types of liability there must be a common
rationale He developed the argument that the decided cases had evolved to a general
principle which covered the immediate case In this case the applied principle was the
already existent neighbour principle which prescribed that you were to love your
neighbour This then became in law the prescription that you must not injure your
neighbour Lord Atkin then suggested a general test for when a duty is owed and the
lawyerrsquos question ldquoWho is my neighbourrdquo received a restricted reply ie you must
take reasonable care to avoid the acts or omission which you can reasonably foresee as
likely to injure your neighbourmdashwho then in law is my neighbour The answer
seemed to Lord Atkin to be persons who are so closely and directly affected by my act
that the actor ought reasonably to have them in contemplation as being so affected when
he was directing his mind to the acts or omissions which were called in question Thus
the legal duty was owed to persons whom one ought reasonably to have in mind as
being affected by onersquos particular behaviour70 The House of Lords in this case held
that manufacturers of products do have a duty to the ultimate consumer of their product
to take reasonable steps to prevent defects in its products which are likely to cause
damage to person or property The above reasoning established this as an important
case in the area of product liability In Lord Atkinrsquos approach we can note the common
70 This case is well-known as it sets out ldquothe circumstances under which a legal duty to take care will
ariserdquo (Shum 1992 p 205)
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 149
law spirit of stare decisis Lord Atkin did not ignore the precedents Instead he found
within them an underlying principle which he then applied In a sense Lord Atkin
looked backward before he moved the law forward to develop the legal concepts and
legal principles In translating such case law it is obvious that the underlying principles
are alien to Chinese but are a sine qua non for our current discussion of the culture of
the common law The legal translator thus faces the problem of finding a way to
represent such legal concepts and legal principles in Chinese
(2) Problems arising due to the differences between the syntactic arrangements word
order and language systems generally of English and Chinesemdashfor brevityrsquos sake
ldquolinguistic problemsrdquo71
Firstly frequent use of the passive voice is characteristic of the English common
law Voices are rather considered to have particular functions of their own than being
used for variation in the legal text The passive voice was sometimes viewed as
helping to convey the objectivity that law-makers seek to achieve ldquohellipthe passive of
the British formula renders the authority of the speaker more remote neutral and
abstract reducing the immediacyrdquo (Bowers 1989 p 28) In addition there are
instances where the passive is chosen for thematic reasons Also take the example in
sect13 of the translation of ordinance with the heading Apportionment of liability in
case of contributory negligence
Below is the English version
71 It is necessary to discuss linguistic problems since as we discussed in chapter 1 translation remains
linguistic transcoding Without a thorough understanding of the linguistic problems posed by the
differences between English and Chinese we cannot discuss the problem of cultural transfer properly
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 150
hellip a claim in respect of that damage shall not be defeated by reason of the fault of the person
suffering the damage but the damages recoverable in respect thereof shall be reduced to such
extent as the court thinks just and equitable having regard to the claimants share in the
responsibility for the damage (Amended LN 337 of 1989) (Cap 23 Sect 21)
The Chinese version reads as follows
hellip則就該損害提出的申索不得因受損害者有過失而敗訴但就該申索可追討的損害賠償
則必須減少而減少的程度是法院在顧及申索人對損害應分擔的責任後認為是公正與公
平的款額
Obviously the passive voice is employed above in order to foreground or thematize
ldquoclaimrdquo and ldquodamagesrdquo and these nouns take up subject position The legal translator
should consider whether it is appropriate to translate the English passive into Chinese
using sentences with ldquo被rdquo ldquo受rdquo or ldquo獲rdquo Therefore the Chinese translation follows
the English structure in conformity with the thematic emphasis by using the typical
topic-comment structure in Chinese
Secondly lengthy and complicated sentences are frequently used often
involving nominalization subordination and coordination all of them surface features
that help to make the common law seem so markedly complex72 Nominalization can
increase the inclusiveness of an expression but can also create a certain degree of
abstraction since the noun phrase may substitute for an entire subordinate clause As
72 A nominalization is a noun phrase that has a systematic correspondence with a clausal predication
which includes a head noun morphologically related to a corresponding verb
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 151
a result post-modification is largely used increasing the complexity73 The extensive
use of coordination and subordination structures in general leads to long and
complicated sentences in order to achieve the goal of inclusiveness precision and
clarity Consider the following sentences in Donoghue (or MrsquoAlister) v Stevenson
The liability for negligence whether you style it such or treat it as in other systems as a species of
culpa is no doubt based upon a general public sentiment of moral wrongdoing for which the
offender must pay
But acts or omissions which any moral code would censure cannot in a practical world be treated
so as to give a right to every person injured by them to demand relief
In the above two sentences the subjects ldquoliabilityrdquo and ldquoacts or omissionsrdquo are
followed with more or less elaborate post-modification ie the dependent clauses
introduced by ldquowhetherrdquo and ldquowhichrdquo respectively The legal translator needs to
understand the logical progression and legal reasoning underlying these complex
sentences when striving for semantic equivalence between English and Chinese
73 For varied forms of post-modification Crystal amp Davy suggest a four-fold division
a a preposition with a nominal group (ie a prepositional phrase) eg lsquothe defence of the free
worldrsquo
b a non-finite clause eg lsquothe diazo- and azo-compounds discussed aboversquo
c a dependent clause which may be introduced by a pronoun or simply attached directly to the
nominal it modifies eg lsquothe man I knowrsquo
d an adjective eg lsquo God the Father almightyrsquo (in Hiltunen 1989 p79)
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 152
612 Legal Translation as Cultural Transfer-- Two Levels of Transfer
In this section we will not only present a theoretical framework for analyzing
legal translation as cultural transfer but also provide principled methodologies for
legal translation especially for translating the common law into Chinese It has been
noted that legal translation as cultural transfer inevitably involves the linguistic and
conceptual adjustments of the translating language Translating the common law into
Chinese is thus a paradigm of cultural transfer as foreignization and necessitates the
importation of common law legal concepts and legal principles into Chinese How
exactly could common law culture be transferred into Chinese
Figure 61 which recalls the more general process diagram of Figure 32
illustrates the process of translating the common law into Chinese in order to achieve
the conceptual semantic equivalence noted in section 223 of chapter 2
ST (common law in English) TT (common law in Chinese)
ST is the
representa-
tion of SC
SC is
embedded
in ST
Text of the English
common law
(legislation and case
law)
Linguistic
transcoding
Text of the English
common law in
Chinese (legislation
and case law)
The missing link
between the
Chinese translation
and the culture of
the common law
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 153
SC (Culture of the common law) SC (Culture of the common law)
Figure 61 Process of Translating the Common Law into Chinese
The problem is one of cultural transfer Since section 4(1) of the Official
Languages Ordinance (Cap 5) provides that all ordinances shall subject to certain
exceptions be enacted and published in both official languages (ie English and
Chinese) Section 10B (1) prescribes the fundamental principle of equality between
the two language versions of Hong Kong laws It provides that both language texts of
an ordinance shall be equally authentic and that the ordinance shall be construed
accordingly This means the Chinese text is neither subordinate to nor a mere
translation of its English counterpart74 However such a stipulation of the ldquosection
alone is still not sufficient to make the Chinese text a meaningful representationrdquo (Sin
1998 p 205 the authorrsquos italics) As illustrated in figure 61 even though we conjure
up a Chinese text that translates the English common law (legislation or case law)
and use a range of techniques neologism borrowing etc to arrive at semantic
equivalence this still does not mean that the Chinese text is capable of as is the
English version representing the culture of the common law We still need to find out
how to in Sinrsquos (1998 p 195) words establish the ldquomissing link between language
74 BLIS website A paper Discussing Cases Where the Two Language Texts of an Enactment are
Alleged to Be Different
Culture of the
common law legal
concepts and legal
principles in Chinese
Culture of the
common law legal
concepts and legal
principles
Transference of
the legal culture
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 154
and lawrdquo mdashto be precise the missing link between the Chinese language and the
culture of common law In this connection Sin (1998) rightly points out
All large-scale cultural transfers begin in the absence of a readily usable language The first and
most natural response of the native culture is to make an attempt to naturalize the foreign
culture Where it has a close affinity to the native culture naturalization or minor adjustment
may be adequate But where it is one of great complexity or radically different the native
culture will find it necessary at some point to change and adjust its language so as to make it
suitable for assimilating it hellip In the absence of an established Chinese legal language translating
Hong Kong laws into Chinese without the benefits of naturalization and subject to enormous
constraints is in many ways tantamount to creating a new form of Chinese Special lexical and
syntactic devices were required to cope with the rich and highly technical vocabulary of the
Common Law as well as its distinctive mode of thinking (pp 136-37)
We can see that cultural transfer is first and foremost linguistic transfer As has been
shown in section 211 any translation necessarily involves transcoding on the
linguistic level Where no Chinese term exists to express common law concepts new
terms have to be created Sager also noted ldquoNew terms are regularly introduced into
the language either to fill a gap created by the introduction of a new concept or to
replace an existing less efficient termrdquo (1990 p 114) The Chinese language needs to
be adjusted to accommodate new concepts representing one level of cultural
transfermdashtransfer at the linguistic level However common law Chinese cannot
acquire its new meanings unless these are understood with reference to the English
common law To explain this point Cao (2004) remarks
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 155
It is a fact that when Common Law concepts are translated into Chinese very often new words
need to be created as such concepts do not exist in Chinese Even after the new linguistic terms
are brought into being in Chinese through translation their referential objects continue to be
found in English Common Law not Chinese law and need to be understood with reference to
Common Law hellip Legal concepts and their translations are relative relational and referential If
we see a legal concept as an idea a network of cross-referential sign-functions that is a
complex sign-system a translated legal concept can grow and expand its meanings and take on
meanings from two sign systems linguistically and culturally hellip We need to read a translated
legal concept with reference to the legal system it refers to not just in what language it is
re-presented (pp 172-73)
Cao rightly points out the principle of understanding the translated law after the initial
linguistic transfer since the culture behind it could only be identified in the English
common law instead of common law Chinese
Since the present study concerns itself not only with identifying such a linguistic
transfer but also justifying it we draw attention to the fact that such an adjustment is
more dramatic culturally than linguistically Regarding this Sin (1998) presents a
convincing argument
Before the Common Law integrates into the thought-world of the Chinese language the Chinese
text of Hong Kong law is as it stands a mere linguistic recoding of its English counter-parthellipIts
meaning is transparent only to those who have taken part in the process of translation but
opaque to uninitiated eyes Without the support of a legal culture the semantic link between
Chinese and the Common Law exists only between the two texts As has been noted in cultural
translation one cannot recode in one stroke a text and the culture behind it The culture has to be
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 156
developed hellip Yet the legal culture is in a very real sense already existing but embodied only in
English not in Chinese hellip Particularly it is there in the heads of Hong Kongrsquos bilingual
Lawyers who have the culture at their disposal hellip Culture always comes with the reader not the
text (p 138)
It may well seem difficult for the common Chinese language user to read cultural
meaning from the existing common law Chinese since the meaning of the common
law Chinese has to be construed against the English common law before the whole
conceptual system of the common law can be imported into the Chinese language By
pointing out that legal culture is critical to the understanding of common law Chinese
Sin highlights the significance of developing in Chinese the legal culture of the
common law Given that any legal culture resides within the competence and mastery
of legal professionals proficient in both Chinese and English one may ask how a
broadly analogous and comprehensible culture could be developed for the common
people As Sin noted that the meaning of common law Chinese is intelligible to the
legal translator who fully understands the process of translation providing the
justification of the linguistic transfer would be an effective way to tranfer the culture
which the reader has to read into the Common Law Chinese
As has been discussed in section 223 both Jakobson (1959) and Feyerabend
(1987) made clear the significance of metalinguistic operations in introducing cultural
concepts and establishing new languages in target language This applies especially to
legal translation since we can we not only formulate new languages but also
implement these languages by constructing new concepts of law In this sense the
legal translator is using metalanguage as the tool by which languages are established
in terms of other languages For example as indicated in section 422 Meijier (1950)
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 157
explained that Shenrsquos memorials were critical in understanding how and why the
foreign legal terms were translated In other words memorials as metalanguage are
vital for transmitting alien legal concepts into Chinese because they provide the
necessary theoretical framework and working principles It is now clear that apart
from linguistic transfer translation as cultural transfer is ultimately a conceptual
transfer at the metalinguistic level so that to give an account of cultural transfer in
legal translation is ultimately to give an account of how or why legal translators make
translational judgments corresponding to legal and cultural concepts Thus linguistic
transfer aiming to import the culture of the common law inevitably leads to the second
level of cultural transfermdashtransfer at the conceptual level
It is clear from the foregoing discussion that the theoretical framework for
cultural transfer in translating the common law into Chinese accommodates two levels
of transfer linguistic transfer ie transfer at the linguistic level which involves the
adjustment of Chinese language and conceptual transfer at the metalinguistic level
On this account Sin (1989 1993 1996) proposed the following general principles in
connection with translating the common law into the Chinese
(1) Fixing the semantic reference system
(2) Adjusting the target language
(3) Building metalinguistic devices to fill the conceptual gap
Cao (2004) echoes Sinrsquos first principle ldquoSuffice it to say that the Chinese translations of
common law concepts in Hong Kong need to be understood with reference to the common
law if the lsquotwo systemsrsquo are to remainrdquo (p 173) As for the second principle adjustment
on the linguistic level is a must The Chinese language has to be amplified to
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 158
accommodate new concepts Regarding the third principle there are several ways of
constructing a metalinguistic mechanism by which the ldquoconceptual gaprdquo (Joseph 1995
p34) could be bridged the ldquomissing linkrdquo (Sin 1998 p 195) could be reconnected and
the culture of the common law could be eventually transferred into Chinese
(1) Write commentaries or articles explaining why and how the translation was
done including explanatory remarks in the preface identifying the objective and
approach add footnotes in the translated work or appendannotations whenever
possible
(2) Translation of related legal works into Chinese
(3) Compiling English-Chinese legal dictionaries
Although the arduous labours of Hong Kongrsquos legal translators have succeeded
in translating a considerable body of common law terms into Chinese these are by
themselves far from sufficient to enable an understanding of the Common Law
concepts that they are supposed to convey The development of metalanguage fosters
the ability to treat language not just as a way of expressing meaning but as an object
of thought in its own right The justification of the translation in consequence can be
identified in the metalanguage where the cultural concepts are ultimately perceived
and transferred The reader once guided can turn to the metalanguage where the
usage of words in Chinese is modified and where the manner in which Common Law
concepts were translated into Chinese is explained As has been clear from our
foregoing discussion legal translation as cultural transfer takes place at two
levelsmdashlinguistic and conceptual In the next section we will analyze how these two
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 159
levels of transfers can be carried out presenting detailed analyses of selected
translations
62 Cultural Transfer in Translating the Common Law into Chinese -- Analysis
of Selected Translations
Thus far we have examined general problems in translating the common law into
Chinese and proposed the theoretical framework for viewing legal translation as cultural
transfer We have noted that transfer on the linguistic level requires adjustments of the
Chinese language thus establishing linguistic equivalents in Chinese for the source
language Such a conceptual semantic equivalence between the common law Chinese
and the original common law would eventually be achieved on the metalinguistic level
Metalanguage has proved to be effective device in transferring the culture of foreign laws
into Chinese As discussed in section 61 there are three major methods of constructing
the metalanguage for transferring the culture of the common law into Chinese In this
connection the proposed theoretical framework needs to be applied on two levels for a
thorough analysis of the cultural transfer involved 1) explain the linguistic transfer ie
adjustments of the Chinese legal language legal vocabulary in particular and 2) justify
the conceptual transfer at the metalinguistic level ie employment of metalinguistic
devices We will now explore such a two level transfer by analyzing selected translations
from the viewpoint of translated common law terminology
When translating an item of common law terminology into Chinese the legal
translator needs to conjure up a corresponding linguistic sign in Chinese which can
represent the same concept Since translation is much more than the substitution of lexical
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 160
and grammatical elements between two languages a problem arises from the very
beginning if the translator aims at finding the exact equivalent Where no such equivalent
exists the translator has to form (or redefine) a term to represent the original concept The
concept-formation process is what happens when ldquotranscodingrdquo the common law
terminology ie use Chinese to express common law concepts It has been noted that
linguistic adjustments representing a transfer on the linguistic level are indispensable for
concept-formation where there are no equivalents or only partial equivalents Chinese
legal vocabulary needs expanding and adjusting with common law concepts new to
Chinese being introduced in large numbers
Sager (1990) pointed out that the use of ldquolexical innovationrdquo including
neologisms to introduce new concepts (p 30) We can categorize the techniques
involved into two major kinds They are
(1) Lexical expansion (redefinition) by selecting an existent term in the target language
as the equivalent of the term in the source language a new definition is given to this
translating term which eventually results in the expansion of the lexical meaning
(2) Neologism a new word form may be created denoting the meaning of the
corresponding word in the SL There are several ways of coining new words in the TL
(a) Calque ie reproducing the morpheme structure of the SL lexical unit within the
means of the TL to create a new TL lexeme This approach is considered a species of
literal translation75
75 Cai Qilin (2002) points out that calque is the major technique used in translating Buddhist texts in
ancient China
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 161
(b) Paraphrase ie describing or rendering the meaning of a translated term which
has no counterpart in the TL76
(c ) Direct borrowing ie using transcription or transliteration where the TL lexicon
adopts the SL term
We will further discuss the use of above mentioned techniques and present various classes
of examples of translated common law terminology Some of these examples will also
show how the principles were adopted by the Bilingual Laws Advisory Committee77
when searching for appropriate linguistic equivalents for English legal terms As noted by
Jin amp Sin (2004) ldquoBLAC needs to scrutinize the translation by taking into account both
the legal concepts and linguistic rulesrdquo (p 90)78
(1) Translation of technical terms
For group onemdashtechnical terms which are unique to common law language and
culturemdashthe problem is that there is no Chinese equivalent What the translator has to
tackle is how best to conjure up Chinese equivalents for such technical terms given
always that such equivalents are likely to remain unreliable or speculative tools for
elucidating common law meanings or concepts
76 Also called ldquodescriptive paraphraserdquo by Šarčević (1997 p 252) 77 Under Section 4C (1) of the Official Languages (Amendment) Ordinance 1987 the independent
committee was established by the Governor on 28 October 1988 to scrutinize the translation of the
English legislation enacted before 1989 produced by the Law Drafting Division It is abbreviated as
BLAC 78 The original Chinese text is ldquo委員會審閱的內容既涉及法律概念也涉及語言規範rdquo
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 162
Valuable experiences drawn from the arduous work completed by the Hong Kong
translation team under LDD which completed the project of translating the English
common law into Chinese before 1997 reveal two possible major techniques
(a) Create new words in accordance with terminological creation principles
Forming a new term in English may involve techniques such as prefixing suffixing
and compounding As Chinese characters are pictographic they cannot be inflected as an
English word can but Chinese can form semantic representations by putting together two
or more existing linguistic forms to create a new term The principle means of word
formation is composition which has both advantages and disadvantages On the one hand
composition provides a convenient way of combining the meanings of two words to
express a new meaning Readers tend to derive the meaning of a new term which is
composed of two or more existing words simply by adding the meaning of the
components but without understanding the real meaning of the new term However when
coining new terms in Chinese composition remains a major tool Let us consider some
examples
Example 1 Chattels
The official translation for ldquochattelsrdquo is shichan (實產)79 In the common law
among the many terms relating to property chattels denotes the concept of personal
property contrasting with property relating to land The Chinese equivalent for chattels
needs to denote the concept of ldquohellip any kind of property which having regard either to 79 In Rule 27 of Chapter 6A the Chinese version for the expression ldquohellip and chattels in the possession
of the debtorrdquo is ldquo債務人所管有的hellip實產rdquo
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 163
the subject-matter or the quantity of interest therein is not freehold hellip in a more narrow
and more modern sense hellip means movable property or effects which belong personally to
the owner helliprdquo (Jowittrsquos Dictionary of English Law p 328)80
The BLAC first proposed to translate it as dongchan (動產) Later they found that
ldquo動產 as a Chinese legal concept was not an equivalent for lsquochattelrsquo embodied in the
legal concept behind the lsquoBills of Sale Ordinancersquohellip the Common Law concepts of
lsquopersonal propertyrsquo and lsquoreal propertyrsquo were not only alien to the Chinese legal concepts
it was also difficult to find their exact equivalents in the European legal system or
Canadian bilingual legislationrdquo (Minutes of the 3rd meeting of BLAC 17th September
1992 p 4) As shi (實) can be construed as shiwu (實物) ie an article or a thing thus
shichan (實產) can indicate the concept of chattels to some extent One may argue that
shi (實) can also mean shizaide 實在的 (concrete) if taken this sense real estate is also a
kind of property that is concrete ie shizaide (實在的) The Chinese equivalent cannot
pose a real contrast with real estate However it is already the best choice we have This
proves that a complete and precise understanding of the translated terminology requires
frequent reference to the common law semantic system
Example 2 Chose in action
The official translation for the term ldquochose in actionrdquo is jufa quanchan (據法權產)81
In the common law chose in action is a rather complicated and evolving concept relating
80 Further references to this dictionary will be made in the thesis and will be abbreviated as ldquoJowittrsquosrdquo 81 In Section 9 of Chapter 23 the Chinese version for the expression ldquohellip or other legal chose in actionrdquo
is ldquo或其他的法律據法權產rdquo
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 164
to property since it is a property right which can only be claimed or enforced by legal
action as distinguished from one which is enforceable by the taking of physical
possession
BLAC once considered using wuxin dongcha (無形動產) to translate this term
However they later found it unacceptable since ldquolsquochose in actionrsquo referred to property
derived from court it would be wrong to translate it as ldquo無形動產rdquo which referred to a
different conceptrdquo (Minutes of the 10th meeting of BLAC p 28) BLAC also proposed
quanwu (權物) or quanchan (權產) for ldquochoserdquo alone as it is a kind of personal property
and ldquotherefore lsquochose in actionrsquo will be translated as lsquo法據權物rsquo or lsquo法據權產rsquo and
lsquochose in possessionrsquo will be translated as lsquo實據權物rsquo or lsquo實據權產rdquo( Minutes of BLAC
Meeting Translation of the terms relating to property 1992)
However jufa quanchan (據法權產) was finally adopted as the equivalent for chose
in action Obviously jufa (據法) is a better expression than faju (法據) for it sounds more
natural and more compatible with the Chinese way of semantic expression Jufa (據法)
can be properly construed as gengju falu (根據法律) while faju (法據) sounds more
awkward Quanchan (權產) is better than quanwu (權物) since chose is considered as a
kind of personal property Therefore the translation for property should be consistently
chan (產) instead of wu (物) In Mainland China there are mainly two translations for this
term One translation is quanli dongchang (權利動產) which emphasizes that it is a kind
of quanli 權利 (right) relating to property (Xu 2004 p 296) The other translation is
sutiwu (诉体物) which sounds rather awkward and the emphasis is placed on the meaning
of susong 诉訟 (action) (Shi trans 1998) The official translation in Hong Kong is the
best of the three available since it effectively conveys the legal meaning of the English
term and seems more transparent to the readers
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 165
Example 3 Fee simple
The term ldquofee simplerdquo is translated as yongjiu chanquan (永久產權)82 In the
common law ldquofee simplerdquo describes the absolute title to land The term consists of two
words ldquofeerdquo and ldquosimplerdquo Fee means an estate of inheritance in real property while
simple means absolute or without limitation Thus fee simple is the largest recognized
estate in land a title without limitation or end The legal meaning of such a technical term
is clear Accordingly the Chinese equivalent of this term typically consists of two
existing Chinese words yongjiu (永久) and chanquan (產權) meaning permanent title to
real property The Chinese equivalent is easily understood One can see that this is
ownership which lasts forever but this in fact conveys only one essential part of the
meaning of fee simple The full and exact meaning resides in and must be retrieved from
the common law Fee simple is not only permanent ownership of indefinite duration but
something freely transferable and inheritable and is thus used to describe ldquoa freehold
estate of inheritance absolute and unqualified It stands at the head of estates as the
highest in dignity and the most ample in extentrdquo (Jowittrsquos p 779)
Example 4 Estoppel83
82 In Section 6 of Chapter 1014 the Chinese version for the sentence ldquohellip shall vest in the trustees in
fee simplerdquo is ldquo須以永久產權形式歸屬受託人rdquo 83 According to Jowittrsquos estoppel is ldquoa rule of evidence whereby a party is precluded from denying the
existence of some state of facts which he has previously asserted An action cannot be founded on an
estoppel hellip Unlike other evidence an estoppel must be pleaded An estoppel may be waivedrdquo (p 725)
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 166
The translation for the ldquoestoppelrdquo is burong fanhui fa (不容反悔法)84 Estoppel is a
very complex legal term dealing with the role of conscience and truth in a court
proceeding It ldquohellip is a principle of justice and of equity It comes to this when a man by
his words or conduct has led another to believe in a particular state of affairs he will not
be allowed to go back on it when it would be unjust or inequitable for him to do sordquo
(Denning MR p241)85 The doctrine of estoppel evolved over a period of one hundred
years to become a general principle in the common law
The Chinese translation of this technical term is phrasal in form and combines the
meanings ldquonot permittedrdquo (burong 不容)ldquodenyrdquo (fanhui 反悔) and ldquorulerdquo (fa 法)86 We
can partly understand the meaning of this newly created Chinese term from its form
However we still need to resort to the common law to understand it fully87 In Mainland
China there are several different translations for this term such as jinzhi fangong (禁止翻
供)jinzhi fanhui (禁止反悔)bude fouren (不得否认) (Shen 1993 p 65)jinzhi
fanyan(禁止反言) (Li 1988 p 596) and jin fanyan (禁反言) (Yang 1997 p 124) By 84 In Section 98 of Chapter 528 the Chinese version for the expression ldquolaw of estoppelrdquo is ldquo不容反悔
法rdquo 85 Denning MR in Moorgate Mercantile Co Ltd v Twitchings [1976] 1 QB 225 CA at p241 86 Susie Dent (2004) a language expert has an observation about the coined words The
extraordinary thing about new words is that probably only about one percent of them are new Most are
old words revived and adapted (p 8) Thus Semantic change of an old word namely specialisation
generalisation and metaphorical change of a word is a common way of coining new words 87 Stroundrsquos Judicial Words and Phrases also gives an interpretation of the term
Estoppel is a complex legal notion involving a combination of several essential
elementsmdashstatement to be acted upon action on the faith of it resulting detriment to the actor
Estoppel is often described as a rule of evidence as indeed it may be so described But the
whole concept is more correctly viewed as a substantive rule of law hellip Estoppel is different
from contract both in its nature and consequences But the relationship between the parties
must also be such that the imputed truth of the statement is a necessary step in the constitution
of the cause of action But the whole case of estoppel fails if the statement is not sufficiently
clear and unqualified (p 943)
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 167
comparison the official translation in Hong Kong is better since it conveys the legal
meaning of the English term more precisely emphasizing that estoppel is an important
legal principle in the common law
We can see that compound terms are essential in creating Chinese equivalents for the
technical terms Sager (1990) laid out the principles for such term creation88 However
he also acknowledged that the communicative dimension of term creation should be
considered relatively less important Perfect communication could never be achieved as it
required that ldquohellip the recipientrsquos state of knowledge after reception of the text corresponds
exactly to the senderrsquos intention in originating the messagerdquo (Sager 1990 p 100) In the
present case the target readers could be both legal specialists and ordinary people and
their knowledge of the law might differ greatly It is not possible for translators to take the
knowledge scope of all their readers into consideration To assume that a Chinese
translation can ever be produced which will be fully understood by Chinese native
speakers is entirely fallacious since the English common law is opaque for most English
native speakers To transfer the cultural meaning of common law terminology will always
requires conceptual adjustments of the translating language ie Chinese
(b) Adopting an existing word and assigning a new meaning to it89 88 Sager (1990) pointed out that ldquothe International Organization for Standardization (ISO) has for many
years been concerned with providing guidance on the creation of terms hellip ISO document ISOR 704
(Naming Principles)rdquo (pp 88-89) Sagerrsquos highly idealistic requirements include ldquoThe term must relate
directly to the concept the term must be lexically systematic hellip there should be no synonyms
whether absolute relative or apparent hellip terms should not have homonyms hellip be monosemicrdquo (pp
89-90) 89 The English lexicographer Susie Dent (2004) observes of coined words The extraordinary thing
about new words is that probably only about one percent of them are new Most are old words revived
and adapted (p 8) Thus semantic change of an old word namely specialization generalization and
metaphorical change is a common means of coining ldquonewrdquo words
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 168
Creating a new word may not always be the best way of translating terms of art in
the common law In some circumstances lexical expansion (redefinition) is another
option Examples include plaintiff (yuangao ren 原告人) defendant (beigao ren 被告人)
petitioner (chengqing ren 呈請人) respondent (dabian ren 答辯人)90 The legal translator
adopts the existing Chinese legal terms as the translations for the above three technical
terms in the common law However we should be aware that as Chinese equivalents for
common law terms they have different connotations under different legal systems
(2) Translation of semi-technical terms
Semi-technical terms ldquoare much more numerous and their number is constantly
growing as the law changes to meet the developing needs of a societyrdquo (Alcaraz amp
Hughes 2002 p 17) Moreover their semantic meanings are much more complicated
thus constantly setting traps for the translator and creating a labyrinth of semantic
connotation ambiguity partial synonymy and context-dependence A number of such
legal terms may not have a fixed legal meaning in the source text as they will carry
different and specific legal meanings in differing contexts these meanings being
90 BLAC came to a final decision after a number of meetings It once had the following list showing
the proposed Chinese translations for ldquodefendantrdquo ldquoespondentrdquo etc
Existing translation LDDrsquos
Proposal
1 Plaintiff 原告人 原告人
2 Defendant 被告人 答辯人
3 Respondent 答辯人 應訴人
4 Petitioner 入稟人 入稟人
5 Accused 被告 被告
(Minutes of the 22nd meeting of BLAC p 7)
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 169
determined either by the definitions given within the context or by knowledge imported
from common legal practice When translating most of such terms there is no need to
deliberately create new equivalent terms in Chinese since most of them already have
Chinese equivalents for their ordinary meanings As such terms can be further divided
into three sub-categories a variety of translation methods will be discussed
(a) For the first typemdashwhere the legal meaning of the term is shared with its core
meaning the established Chinese equivalent will be adopted However we need to
refer to metalinguistic devices to redefine the meaning in a common law context The
following examples illustrate the nature of the problem
Example 1 Abandonment
Since this term has several legal meanings in the common law one of the official
translations for the term is fangqi (放棄)91 The core meaning of the term is to leave
completely to give up or withdraw One of its legal meanings is shared with its core
meaning ie ldquothe relinquishment of an interest or claimrdquo (Jowittrsquos p 3) So it could
be the ldquoabandonment of a vessel by the crewrdquo ldquothe surrender of a child to an adopted
parentrdquo or an abandonment of possession a right an undertaking or a contract
(Strouds Judicial Dictionary of Words and Phrases p 4)92 In all the above contexts
the existent Chinese term fangqi (放棄) is adopted to convey the said legal meanings
Example 2 Attempt
91 The heading Section 6 of Chapter 221G is ldquoabandonment of applicationrdquo and the Chinese version
reads ldquo申請的放棄rdquo 92 Further references to this dictionary will be made in the thesis and will be abbreviated as ldquoStroudrsquosrdquo
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 170
The official translation for ldquoattemptrdquo is qitu (企圖) The legal meaning of the term is
shared with its core meaningmdashto make an effort at something However as a common
law offence the term attempt is a rather complex legal concept and has been used in a
technical way Attempt ldquois an offence to do any act which is a step not being a merely
preparatory one towards the commission of an offencerdquo (Roebuck 1995 p 73)93 Thus
the legal intention or intent is an essential constituent of the offence of attempt to commit
a crime BLAC once proposed to borrow weixu zui (未遂罪) as used in Mainland China
and Taiwan as the translation However it later found that the concept behind weixu zui
ldquo未遂罪rdquo did not coincide exactly with that of ldquoattemptrdquo in the common law So after
rounds of discussions it finally adopted the existing Chinese term expecting that legal
experts or readers would turn to the numerous case laws to interpret the Chinese
equivalent of the term (Minutes of 10th meeting of BLAC p 12)94
Example 3 Confession
The official translation for ldquoconfessionrdquo is gongren(供認)95 The act of telling or
making known something that is seen as wrong or damaging to oneself is the core
meaning of the term In its legal usage it refers to telling the crime one has committed
93 It is ldquoan endeavour to commit a crime or unlawful act the doing of some offence an act done with
intent to commit a crime and forming part of a series of acts which would constitute its actual
commission if it were not interruptedrdquo (Jowittrsquos p 115) 94 Roebuck (1996) used the Chinese equivalent weixu zui (未遂罪) in the book Digest of Hong Kong
Criminal Law (p 39) However in the Index and Glossary of the book attempt was translated as qitu
zui (企圖罪)
95 In Section 51 of Chapter 227 the Chinese version for the expression ldquothe confession of the
defendant rdquo is ldquo被告人的供認rdquo
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 171
which can be admitted as evidence96 While gongren (供認) is capable of conveying the
termrsquos fundamental concept it should always be construed with reference to its common
law legal context This involves noting inter alia that ldquoIn civil procedure a confession is
a formal admission In criminal law a confession is an admission of guilt made either
judicially that is in the course of a judicial proceeding or not Judicial confession may
operate as an estoppel and if plenary is sufficient to found a conviction as where a
prisoner pleads guilty An extrajudicial confession never operates as an estoppelrdquo
(Jowittrsquos p 415)
Example 4 Negligence
The term ldquonegligencerdquo is officially translated as shuhu (疏忽)97 The core
meaning of the term is failure to act with the prudence In the common law
ldquonegligence is not just a state of mind but rather the failure to meet an objective
standard of behaviour the standard of conduct expected of a reasonable person helliprdquo
(Roebuck 1995 p 20) Since part of the termrsquos legal meaning overlaps with its
ordinary meaning the ordinary Chinese equivalent was adopted as its legal equivalent
In the common law the term ldquonegligencerdquo is a rather complex legal concept in the
law of tort The concept of negligence is central to the tort system of liability The
negligence concept centres on the principle that every individual should exercise a
96 Stroudrsquos gives interpretation for the term ldquoconfessionhellipis an admission the words of which
considered objectively and in their context expressly or substantially or inferentially admit guilt
(Anandagoda v R [1962] 1 WLR 817)rdquo (p 547) 97 In Chapter 71 the Chinese version for the expression ldquonegligence or other breach of dutyrdquo is ldquo疏忽
或其他不履行責任rdquo
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 172
minimum degree of ordinary care so as not to cause harm to others98 Thus duty of
care breach of the duty causality and injury are four essential elements of the offence
of negligence There is a long list of judicial interpretations for this term running to 21
entries in Stroudrsquos Again the legal concept of negligence could only be properly
construed against the semantic referential scheme of the common law
Example 5 Public Place
The term ldquopublic placerdquo is translated into gongzhong defang or gongzhong
changsuo (公眾地方公眾場所) which at first glance seems the same as the termrsquos
ordinary meaning in Chinese However a close examination would show that the
legal meaning of the term is not exactly the same since ldquothis expression occurs in
many Acts of Parliament which declare such and such a thing to be an offence if done
in a lsquopublic placersquo In each case the meaning depends upon the context and upon the
object of a statute A place may be a public place at one time and not at other timesrdquo
(Jowittrsquos p 1461) Strouds also has 21 entries for case law definitions and the Hong
Kong Ordinances also contained their own definitions99 The legal meaning of the
98 The term negligence has ldquotwo meanings in the law of tort it may mean either a mental element
which is to be inferred from one of the modes in which some torts may be committed or it may mean
an independent tort which consists of breach of a legal duty to take care which results in damage
undesired by the defendant to the plaintiff rdquo (Jowittrsquos p 1227) 99 Section 3 Interpretation of words and expressions of Chapter 1 INTERPRETATION AND
GENERAL CLAUSES ORDINANCE in the Hong Kong Ordinances stipulates
public place (公眾地方公眾埸所) means-
(a) any public street or pier or any public garden and
(b) any theatre place of public entertainment of any kind or other place of general resort
admission to which is obtained by payment or to which the public have or are permitted to have
access
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 173
term is thus heavily context-dependent100 It should be noted that translation of such a
semi-technical term usually needs much research on the part of the legal translator
including an examination of its different common law contexts
(b) For the second typemdashwhere part of the legal meaning of the term overlaps with its
core meaningmdashwe can once again use the ordinary Chinese equivalent plus lexical
expansion or we can create a new term The legal meaning of these terms can be
inferred from various interpretations of cases Therefore frequent reference to the
cases is a better way to understand meanings in different contexts Examples include
the following
Example 1 Discharge
The two main entries for ldquodischargerdquo in the official translations are jiechu or jieyue
(解除 or 解約) In its ordinary usage the core meaning of discharge is to relieve of
obligation responsibility etc In its legal usage meanings differ with different contexts
and part of the legal meaning overlaps with the ordinary meaning When used in the sense
of ldquoto discharge a right or obligationrdquo101 or to be ldquofreed from hellip debts provable in the
100 Roebuck (1995) also pointed out the different interpretation of the term in different contexts in the
Hong Kong case laws
The phrase lsquopublic or a section of the publicrsquo was discussed in Wong Pik-har [1987] HKLR 373
private premises may also be a public place A shop is a public place while it is open Ng
Chun-yip [1985] HKLR 427 Similarly the corridor of a domestic building is at all times a
public place hellip In Lam Shing-chow CA 18385 it was held that a common corridor on the
twelfth floor of a private building was not a public place because neither the public nor a section
of the public were permitted access to it (pp 164170) 101 For example in section 33 of Chapter 29 ldquoa good dischargerdquo is translated as ldquo充分的責任解除rdquo
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 174
bankruptcyrdquo (Jowittrsquos pp619-20)102 the existing Chinese equivalent jiechu (解除) was
adopted When used in the law of contract a discharge of contract means that the contract
is no longer binding Therefore another Chinese term jieyue(解約)103 was adopted to
express this concept
Example 2 Malice
The term ldquomalicerdquo is officially translated as eyi (惡意)104 When used as an ordinary
term malice means desire to cause pain injury or distress to another However this term
as applied to the common law does not necessarily mean that which must proceed from a
spiteful malignant or revengeful disposition but a wrongful act injurious to another The
Chinese equivalent eyi (惡意) also means spiteful mind but should be construed with
reference to its common law meaning105 We will further analyze in this section the
translation of malice in the context of translating the case law into Chinese to show the
significance of building a metalanguage and developing the semantic referential system of
the common law in Chinese
Example 3 Remainder
102 For example in section 30 of Chapter 401 ldquodischarge from bankruptcyrdquo is translated as ldquo解除債
務rdquo 103 For example in section 18 of Chapter 23 ldquodate of dischargerdquo is translated as ldquo解約日期rdquo 104 In Section 51 of Chapter 221 the Chinese version for the expression ldquostands mute of malicerdquo is ldquo出
於惡意而保持緘默rdquo 105 According to Jowittrsquos malice is ldquoa formed design of doing mischief to another technically called
militia praecogitata or malice prepense or aforethought hellip malice in common acceptance means
ill-will against a person but in its legal sense it means a wrongful act done intentionally without just
cause or excuserdquo (p 1136)
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 175
The official translation for the term ldquoremainderrdquo is shengyu quanyi (剩餘權益)
When used as an ordinary term remainder means something that remains or is left In its
legal usage remainder means the interest in land or property owned by a person who
enjoys no benefit from the property now but expects to come into possession in due
course of time and the term is thus used in rather technically in the law of property
Therefore a new compound term shengyu quanyi (剩餘權益) was created to express
this concept The term is obviously composed of two Chinese terms shengyu (剩餘
remaining) and quanyi (權益 interest)
(c) The third typemdashwhere the legal meaning of the term totally deviates from its ordinary
meaningmdashcan be treated in the same way as terms of the first type ie terms of art or
legal terms having a technical meaning The two major approaches are the creation of
a new term or the adoption of existing term with redefinition
Example 1 Abandonment
The other official translation for the term as used in the expression ldquonotice of
abandonmentrdquo is weifu tongzhi (委付通知)106 This legal meaning is totally different
from the core meaning It should be thus noted that ldquo the word lsquoabandonrsquo is one in
ordinary and common use and it in its natural sense well understood but there is not
a word in the English language used in a more highly artificial and technical sense
that the word lsquoabandonrsquo in reference to constructive total loss it is defined to be a
cession or transfer of the ship from the owner to the underwriter and of all his
property and interest in it with all the claims that may arise from its ownership and
all the profits that may arise from it including the fright then being earned (per Martin 106 We can find the term in Section 57 of Chapter 329 Marine Insurance Ordinance
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 176
B Rankin v Potter 42 LJCP 169 at p 200)rdquo (Stroudrsquos p 3) Therefore a new
Chinese term was created as the equivalent for this term in order to convey effectively
the common law legal concept
Example 2 Personal Representative
The official translation for the term ldquopersonal representativerdquo is yichan daili ren
(遺產代理人) The ordinary meaning of the term is a person who manages the affairs
of another In its legal usage it means ldquoexecutors and administrators whether acting
with regard to personal property or with regard to real propertyrdquo (Jowittrsquos p 1356)
This legal meaning deviates from the termrsquos ordinary meaning and a new Chinese
term was coined to express the concept instead of using its equivalent in Chinese as
ordinary term ie geren daibiao (個人代表)107
Example 3 Warranty
The two official translations of ldquowarrantyrdquo baozheng (保證) and baozheng tiaokuan
(保證條款) capture two different legal meanings The core meaning of the term is a
guarantee or assurance One of its legal meanings overlaps with the core meaning and is
thus translated as baozheng (保證)108 The other legal meaning is ldquoa subsidiary term in a
contract as distinct from a vital term which is called conditionrdquo (Jowittrsquos p 2979)109
107 Stroudrsquos interpretation of this term reads ldquothis phrase (except when otherwise controlled by a
context) is synonymous with legal representativerdquo (p 2014) 108 The heading Section 33 of Chapter 329 is ldquoNature of warrantyrdquo and the Chinese version reads ldquo保
證的性質rdquo 109 Section 2 of Chapter 26 gives the interpretation of the term ldquowarrantyrdquo
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 177
Thus in the law of contract warranty is different from condition since a breach of
condition justifies the termination of the contract while a breach of warranty does not110
This legal meaning deviates from the termrsquos core meaning and is thus officially translated
into baozheng tiaokuan (保證條款) which is a newly created compound term in Chinese
One might well think that baozheng tiaokuan (保證條款) has a close connection with
baozheng (保證) but as a matter of fact they express two different common law concepts
Another suggested translation is ciyao tianjian (次要條件) which is also a testimony to
the value of neologism and may convey the legal meaning of warranty against condition
more precisely111 In this case the creation of a new term would seem a better choice
Thus far we have illustrated the process of translating common law terminology
where adjustments of the Chinese legal vocabulary on the linguistic level and frequent
reference to the semantic referential system of the common law are both indispensable
It will be remembered that in section 61 of this chapter we have already provided a
summary of the metalinguistic tools that could be employed by the legal translator on
ldquowarranty (保證條款) means an agreement with reference to goods which are the subject of a contract
of sale but collateral to the main purpose of such contract the breach of which gives rise to a claim for
damages but not to a right to reject the goods and treat the contract as repudiated
(Amended 59 of 1989 s 20) 110 Lord Denning in Oscar Chess Ltd v Williams [1957] 1WLR 370 111 Zhao (1995) also discusses the translations of condition and warranty She remarks
In Chinese legal terminology we have zhuyao tiaokuan (主要條款 major terms) and ciyao
tiaokuan (次要條款 subordinate terms) But the Chinese contract law does not take the same
approach as Common Law to distinguish between terms in order to determine remedies hellip It
is submitted that the better choice will be the use of functional equivalents zhuyao tiaokuan
(主要條) and ciyao tiaokuan (次要條款) to express ldquoconditionrdquo and ldquowarrantyrdquo Both Chinese
terms can achieve the desired legal effects (pp 300-01)
Functional equivalence is not a good choice for translating the common law into Chinese since it
will result in confusion between the legal terms used in different legal systems
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 178
the conceptual level to effect cultural transfer Let us scrutinize these methods of
constructing a metalinguistic mechanism
(1) Appending translatorrsquos preface or footnote or any other commentaries or
explaining why and how the translation was done in related articles
The classic example here is the ldquoMemorialsrdquo in which Shen Jiaben expounded the
translated concepts of foreign laws already referred to in section 422 Especially
where the translation of Hong Kong Ordinances is concerned we find that legal
translators strive to spell out explanatory remarks identifying the translation objective
and approach and explain why and how the translation was done in related articles
The Bilingual Laws Information System (BLIS) is a valuable database of laws of
Hong Kong providing both English and Chinese versions of the current laws of Hong
Kong a glossary and other useful information which testifies to the impressive
translation project completed by the former Legal Department under the supervision
of the Bilingual Laws Advisory Committee (BLAC)112 The minutes of BLAC
meetings also serve as important metalanguage explaining how and why the
translations are made as shown by our discussions above Another method which is
particularly important is the translatorrsquos notes which he adds to the translated text to 112 Thus the Law Drafting Division of the Department of Justice as the statutory body of translating
the Common Law into Chinese has created as its flagship product the BLIS (Bilingual Laws
Information System) one of the largest ever legal databases and a valuable metalinguistic tool With its
many products including a CD-ROM English-Chinese Glossary of legal terms published in 1995 and a
Chinese-English Glossary of Legal Terms published in December 1999 the Law Drafting Division of
the Department of Justice has made very significant efforts to enhance the learning of common law
terminology and promote the Chinese semantic referential system of the common law It also writes
articles on bilingual legal issues for the well received magazine Hong Kong Lawyer
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 179
give some specifications or provide further information Necessary knowledge of the
context can be given more effectively through explanations in the text or in footnotes
But in translating the common law legislation this format may not prove practical If
we look at the current English Ordinances of Hong Kong we find that Chapter One
Interpretation and General Clauses Ordinance provides overall guidance on how to
interpret the Chinese equivalent for the English terminology with reference to the
common law context Every chapter also has a section headed ldquoInterpretationrdquo which
gives the proper construction of some English terms used in the ordinance
supplemented with their Chinese equivalents This is a significant step providing a
conceptual link between English terms and their Chinese equivalents and in fact
serves much the same function s a translatorrsquos note If we look at the ldquoDiscussion
Paper on the Laws in Chineserdquo prepared by the Attorney Generalrsquos Chambers of Hong
Kong we find there a statement concerning the use of metalanguage ldquothe
Interpretation and General Clauses Ordinance should be amended hellip to deal with the
problem of a discrepancy between the meaning of the English text of a law containing
an expression of the Common Law and the Chinese text using an expression which is
not one of the Common Lawrdquo Also the methodologies employed in the process of
establishing well-formed Chinese equivalents for common law terminology have been
clearly set out by the Law Drafting Division of the Department of Justice in a number
of articles in Hong Kong Lawyer the official journal of the Law Society of Hong
Kong113 113 An article provided by The Law Drafting Division of the Department of Justice examines the need
for the gradual development of standard Chinese terms to explain Common Law and statutory concepts
An extract reads
When selecting the Chinese term we must consider the lsquoadequacyrsquo and lsquoacceptabilityrsquo of the
term hellip Usually semantic mapping is used for legal translation There are two ways of semantic
mapping One is to employ an existing Chinese term to represent a Common Law concept The
other is to coin a new Chinese legal term by combining existing morphemes Bilingualism in the
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 180
(2) Translation of related legal works into Chinese
The following legal works have already been translated into Chinese (a) reports
of Chinese cases in the Hong Kong Law Reports and Digest and Hong Kong Cases (b)
important cases provided by the Judiciary and some law reports have been published
in both English and Chinese versions (c) Hong Kong Lawyer as the official
magazine of the Law Society of Hong Kong carries a section which provides the
Chinese translations of key legal phrases taken from judgments (d) several law
digests have been published including Chinese Digest of Hong Kong Contract
Law(1995) Chinese Digest of the Criminal Law of Hong Kong (1996)Chinese Digest
of the Criminal Procedure Law of Hong Kong (1996) and Chinese Digest of the
Common Law of Hong Kong114 In addition to the above works it is also desirable to
translate specialized Common Law dictionaries into Chinese such as A Dictionary of
Modern Legal Usage115 Strouds Judicial Dictionary of Words and Phrases and
compile books focusing on the legal concepts of Common Law such as Digest of Case
Law Principles
Common Law necessarily involves the use of Chinese A collection of Chinese Common Law
terms that are stable and clear will assist greatly in the development of bilingualism in the
Common Law For this purpose if there is standardisation of the translation of Common Law
concepts these concepts will be matched more readily with their Chinese equivalents This is
beneficial for the lsquorootingrsquo of the Common Law in the Chinese language and provides standard
Chinese references for Common Law concepts hellip Standardisation of the translations will
expedite the absorption of Common Law concepts by the Chinese language Standardisation of
translations for Common Law concepts is also beneficial for judicial interpretationhellip
Nevertheless a translation produced with due regard to all these factors will be much more
concerned with lsquoadequacyrsquo and may lack lsquoacceptabilityrsquo as it presently stands (in ldquoThe Common
Law and the Chinese Languagerdquo Hong Kong Lawyer February 1999) 114 This is a project conducted by Roebuck Derek and King-kui Sin 115 In its first edition A Dictionary of Modern Legal Usage became a classic in its field The first
comprehensive guide to legal style and usage it filled a gap in reference literature by giving practical
advice on how to write clear jargon-free legal prose
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 181
(3) Compiling an English-Chinese legal dictionary
Another efficient way to build the semantic referential system for the Chinese
equivalents of common law terms is to compile a dictionary with commentary We
have demonstrated that the basic requirement in translating terminology is to achieve
semantic equivalence However semantic equivalence alone is not enough since
meanings can often only be worked out when terms are considered in context and
when the cultural concept of terms is properly transferred Such contextual knowledge
can be supplied by amplifications in the translated text (footnotes) or separately in
appendices (glossaries) Adequate cross-referencing of entries thus seems an ideal
metalinguistic tool to establish a common law semantic reference system116 The
Hong Kong English-Chinese Legal Dictionary (2005) published by Butterworth is a
good recent example of its kind
To illustrate the two levels of cultural transfer and further justify the conceptual
transfer at the metalinguistic level further analysis of selected translations will be
furnished The foregoing discussion shows where new terms are created in Chinese
their meaning may seem transparent and can be easily identified Yet the reader still
needs to resort to metalanguage to understand the concepts of the newly-created terms
In translating semi-technical terms legal translators often employ lexical expansion
using an existing Chinese term to express the new common law concept This makes
it difficult for the reader to determine whether the term is common law Chinese or
116 Trsquosou amp Kwok (2003) also point out the immaturity of English-Chinese dictionaries in Hong Kong
There are many comprehensive English dictionaries of law (eg Garner 1999) but standard
references for legal Chinese in Hong Kong have not matured to the same level Most of them
exist in the form of a glossary with only very crude definitions if any (eg Department of
Justice 1998 Department of Justice 1999 Li amp Poon 2000) (p 612)
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 182
ordinary Chinese In such a case it is even more important to resort to metalanguage
as a mirror for cultural transfer at the conceptual level
The analysis of translated legal terms serves as the paradigm of cultural transfer
at the lexical level Discussions of translated legislative texts and judgments would
further illustrate the operation of cultural transfer In addition translation of the
judgments itself is of vital importance to construct the metalanguage since judgments
are not only important because they settle specific disputes and contain solutions to
legal problems but also because they have shaped much of the culture of the law ie
legal concepts and legal principles We shall take the example of translations of the
term ldquomalicerdquo in the legislation and case law as a simplified case to illustrate cultural
transfer on the textual level We will analyze how the legal concepts and legal
principles relating to ldquomalicerdquo are developed in the case law117
117 Poon (2005) points out that BLAC used to refer to the case law in defining the Common Law terms
She also uses the example of ldquomalicerdquo defined thus
In law an act is malicious if done intentionally without just cause or excuse (per Bayley J
Bromage v Prosser 4B amp C 255)
1 ldquoMaliciouslyrdquo means and implies an intention to carry out an act which is wrongful to the
detriment of another (Mogul Co v McGregor[1892] AC 25 (HL))
2 The word ldquomalicerdquo refers not to intention but to motive (R v Tolson (1889) 23 QBD 168)
3 Where any person wilfully carries out an act injurious to another without lawful excuse he
does it maliciously (per Lord Blackburn R v Pembliton (1874) LR 2 CCR 119)
4 Where a person has a malicious intent against another and in carrying it out injures a third
person he is guilty of malice against the person he has injured (per Coleridge v Latimer 17
QBD 359)
5 ldquoMaliciouslyrdquo in S 16 Offences Against the Person Act 1861 means ldquowilfully or intentionally
and without lawful excuserdquo (R v Mowatt [1968] 1 QB421)
6 For a person to be guilty of ldquomalicious woundingrdquo mere recklessness is not enough (W (A
Minor) v Dolbcy [1983] Crim LR681) (p 319)
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 183
Example 11 (legislation)
In an action for a libel contained in any newspaper it shall be competent to the defendant to set up
as a defence that the libel was inserted in the newspaper without actual malice and without gross
negligence hellip (Cap4 Sect 21)
The official translation is as follows
在因任何報刊刊載的永久形式誹謗而進行的訴訟中被告人有權提出在該報刊刊登的永久形
式誹謗並不含實際惡意亦無嚴重疏忽hellip(第 4 章 第 21 條)
We see that ldquomalicerdquo is translated as eyi (惡意) which is also an ordinary Chinese
term Evidently the legal translator has employed the technique of lexical expansion to
give it new meaning On the linguistic level the common law term ldquomalicerdquo has been
successfully encoded as eyi (惡意) in Chinese and we can appropriately say that eyi
(惡意) is the semantic equivalent of ldquomalicerdquo Now let us see how translations of the
excerpted case law transfer the legal culture at the metalinguistic level By translating
the excerpted judgments the concept of ldquoactual malicerdquo in the common law and
related legal principles especially in defamation cases can be transferred into
Chinese
Example 12 (judgment)
There are two sorts of malice malice in fact and malice in law the former denoting an act done
from ill-will towards an individual the latter a wrongful act intentionally done without just cause
or excuse118
118 Bayley J in Bromage v Prosser
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 184
Translation by the author is as follows
惡意分兩種事實惡意與法律上的惡意前者指對他人出自的惡意行為後者是蓄意的錯誤
作為且沒有確當的原因或辯解
Example 13 (judgment)
Express or actual malice is ill will or spite towards the plaintiff or any indirect or improper
motive in the defendants mind which is his sole or dominant motive for publishing the words
complained of
Translation by the author is as follows
顯明惡意或實際惡意是在被告的思想中對原告存有或非直接的不恰當的動機且此動機
為被告在發佈他所被控的言辭時獨有或主要動機
Example 14 (judgment)
Malice could also be established by inference if the court was satisfied that the defendant did not
believe what she said was true or she knew or believed that the defamatory statements were
false119
Translation by the author is as follows
惡意可被推定建立如法庭信納被告不相信她自己所說的是事實或她知道或相信誹謗的陳述
是假的
119 HO PING KWONG V CHAN CORDELIA [1989] 2 HKC 415
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 185
Example 21 (legislation)
Where a person kills another in the course or furtherance of some other offence the killing shall
not amount to murder unless done with the same malice aforethought (express or implied) as is
required for a killing to amount to murder when not done in the course or furtherance of another
offence (Cap339 Sect 2)
The official translation is as follows
(1) 凡殺人行為並非在犯其他罪行的過程中或為了進行其他罪行而作出而該殺人行為
必須具備某種(不論是明示或默示的)的預懷惡意(下稱ldquo前述預懷惡意rdquo)方足以構成謀
殺罪則任何人如在犯其他罪行的過程中或為了進行其他罪行而殺死他人其殺人
行為除非具備與前述預懷惡意相同的預懷惡意否則不構成謀殺罪(第 339 章 第 2
條)
When faced with such a legislative text the legal translator must delve into the
cultural concepts of the specified legislation in order to produce a Chinese legal text
with the same meaning The ordinance belongs to an important branch of the
Common Lawmdashthe criminal law and deals with one offence in criminal law murder
The doctrine presumes malice aforethought on the basis of the commission of a felony
inherently dangerous to human life Now let us look at how the concept of ldquomalice
aforethoughtrdquo is defined in the case law120
120 Roebuck (1995) also explained malice aforethought (express or implied) in his Hong Kong
Criminal Law which provided the Chinese translation of the judicial interpretations lt杀人罪條例gt第 2 條第(1) 款提到ldquo明示的或默示的rdquo 惡意預謀明示的惡意指殺人的故
意默示的惡意指重傷的故意[見常威強 Tsang Wai-keung(1973)]HKLR 159 一案 (p 84)
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 186
Example 22 (judgment)
There is no doubt that murder is killing with malice aforethought and there is no doubt that
neither the word malice nor the word aforethought is to be construed in any ordinary sense
The whole phrase is to be interpreted according to principles that have been laid down in
decided cases Next it is clear that there is malice aforethought if a person kills with intent to kill
or do grievous bodily harm see R v Vickers121
Translation by the author is as follows
毫無疑問謀殺就是ldquo有預懷惡意的rdquo 殺人且毫無疑問的是ldquo惡意rdquo 一詞與ldquo預懷rdquo 一詞都不
可用它們平常的意思來理解這個詞組應按照先例中定下的法律原則來解釋其次很明
顯凡有人意圖殺人或嚴重傷人必有預懷惡意存在
Example 23 (judgment)
We are not here concerned with the meaning of malice in the Common Law definition of murder
still less with its meaning in relation to the law of libel and slander where indirect motive is of
importance There is no case other than R v Syme and R v Johnson (with which we will presently
deal) in which it has ever been suggested that indirect motive has anything to do with the
meaning of the word maliciously in Acts creating criminal offences122
Translation by the author is as follows
在此我們並不是要討論在惡意一詞在普通法謀殺罪定義中的意思更不是要討論它在誹謗
法中的意思在這兩者中非直接的動機佔有重要位置 沒有其他案例能象在 R v Syme
121 All England Law Reports1973Volume 3 R v Hyam - [1973] 3 All ER 842 122 All England Law Reports1969Volume 3 R v Solanke - [1969] 3 All ER 1383
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 187
和 R v Johnson 案件中(這是我們目前審理的案件)非直接的動機與ldquo惡意地rdquo 一詞在法例
中構成刑事罪行的意思更為相關
We can observe that the common law standard of malice generally required the
tort law to support an award of punitive damages In the law of slander we can see
that malice is one of the elements of liability and the plaintiff may meet a case of
privilege thus made out on the part of the defendant by proving actual malice that is
actual intent to cause the damage complained of In dealing with the criminal law an
act malicious in common speech means that harm to another person was intended to
come of it and that such harm was desired for its own sake as an end in itself
Therefore as discussed in section 61 legal translation as cultural transfer takes place
at two levelsmdashlinguistic level and conceptual level When translating the term
ldquomalicerdquo in the legislation the legal translator produces the Chinese equivalent for the
term on the linguistic level by adjusting the translating language Metalinguistic
devices should be built in order to transfer all the cultural elements behind this legal
term into Chinese One effective method is to translate the judgments related to the
legal concept under review The above translations of excerpted legislation and
judgments serve as a simple example of the type of work needed to establish the
metalanguage of the common law in Chinese
Using study of cultural transfer in legal translation in this thesis as its basis a
more comprehensive examination of the translation of legislation and judgments
relating to legal terminology could be an interesting field of further research This
might include the translation of legislation and judgments relating to legal
terminologies studied previously such as abandonment fee simple chose in action
chattel confession and warranty to name a few To conclude transfer of the culture
of the common law into Chinese requires adjustments on both the linguistic and
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 188
conceptual level in particular the building of metalinguistic tools in Chinese until the
whole semantic reference system of common law Chinese is eventually laid bare
Chapter 7
Concluding Remarks
We began this study by reflecting on the notion of cultural transfer in translation theory
As noted in the introductory chapter translation theorists expended much effort in developing
theories centering on linguistic transcoding especially on linguistic equivalence The
characterization of translation as cultural transfer is an outcome of the cultural turn in
translation theory
We have particularly in section 21 noted that the notion of cultural transfer when
employed to characterize translation as a socio-cultural activity as opposed to a mere act of
linguistic transcoding can be understood in two diametrically opposite senses On the one
hand it is taken to mean the mapping of cultural elements of the source text onto their
equivalents in the culture of the target text On the other hand it is taken to mean the
importation of the source culture into the target culture which necessitates linguistic and
conceptual adjustments of the translating language Understood this way translation as
cultural transfer requires that a choice be made between the two basic translation strategies
ie domestication and foreignization The cultural concepts of the source language may be
either domesticated in order to facilitate cross-cultural communication or foreignized by
making both linguistic and conceptual adjustments of the target language As has been
pointed out in section 22 translation as cultural transfer is no longer a matter of finding
linguistic equivalents between languages but rather an operation of creating conceptual
semantic equivalence on the metalinguistic level Thus understood foreignization is simply a
metalinguistic operation whereby cultural transfer is effected
CONCLUDING REMARKS 190
The clarified notion of cultural transfer is vital for understanding legal translation as
cultural transfer both in respect of its theoretical foundations and practical applications In
section 22 we noted that when translating a legal text for the purpose of producing another
authentic version of the same text the legal translator is bound to foreignize the language of
the latter version to a certain extent in order to establish semantic equivalence between the
two versions Translation of the common law into Chinese thus serves as a paradigm of
cultural transfer in legal translation
That being the case our understanding of legal culture must be carefully reconditioned
by its practical reference to the common law and account for the evidence of its transference
in the legal text itself As analyzed in section 31 the very notion of legal culture has been
understood in previous studies either as peoplersquos conceptions of law or the combination of
peoplersquos conceptions and practices of law However it is not possible for the legal translator
to deal with legal culture in the sense of the practices and behaviors by legal professionals as
the final encounter of the legal translator is the legal text which embodies peoples conception
of law The aspect of legal culture which informs and underpins legal translation is the
conceptual thinking shared by legal professionals We argued in section 33 that the common
law is a deep-rooted historically molded conceptual thinking shared by legal professionals
Its legal culture is mainly reflected in two aspects legal concepts and legal principles We
also investigated in section 34 the legal culture of traditional and modern Chinese law
showing that borrowing from other legal systems and transfer of foreign laws into China has
shaped the modern Chinese law
In our analysis in section 41 of the transfer of legal culture we classified legal
transplant into two kinds legal imposition at the socio-political level and legal translation at
the socio-linguistic level On the one hand a fairly wholesale transplantation of legal system
CONCLUDING REMARKS 191
is possible for socio-political reasons even without any translation of the imported law into
the indigenous language On the other hand it is often through legal translation that foreign
laws are introduced to the indigenous people at the socio-linguistic level Compared with
legal imposition legal translation is a more fruitful way of legal transplant and cultural
transfer as is evident from Chinarsquos long history of legal translation It has also been shown in
our analysis of the memorials prepared by legal translators that the successful transfer of a
legal culture always requires the adjustments of the translating language by means of
metalinguistic devices
As this study is both a theoretical inquiry and a case study chapter 5 examined the
specific features of the common law language in which the legal concepts and legal principles
are embodied We argued that differences between the Chinese language and common law
English should not be emphasized at the expense of the translatability of the common law
legislation into Chinese Legislative translation is no doubt a limiting case of translation For
it is mandated by law that its different language texts must convey the same legal meaning so
as to regulate the same social behaviour among the people it governs If this condition cannot
be satisfied if it can be shown that equivalence in meaning is in principle unattainable then
not only will legislative translation become a futile endeavour but the foundation of all
multilingual legal systems will also collapse
To show how semantic equivalence is possible in legislative translation we proposed in
section 61 a theoretical framework for effecting cultural transfer at two different levels One
is linguistic transfer ie transfer at the linguistic level which involves the adjustments of the
Chinese language and the other is conceptual transfer at the metalinguistic level We then
carried out a detailed analysis of selected translations The focus is placed on the analysis of
the translation of common law terminology We made clear in section 62 how the two levels
CONCLUDING REMARKS 192
of transfer take place Not only should the legal translator produce the Chinese equivalents on
the linguistic level by adjusting the Chinese language but with the use of metalanguage
heshe transfers the cultural concepts into Chinese and establishes the semantic reference
system for common law Chinese ie a special domain of the Chinese language developed
for incorporating the common law
Basing our views on the works of legal and translation scholars in Hong Kong we have
shown in this study that equivalence in meaning indeed does not exist between languages as
they stand This has led many to dismiss the whole notion as illusory However equivalence
in meaning is by nature not a descriptive term Rather it is a stipulative term That is to say
two terms are equivalent in meaning if and only if they are stipulated to be so Equivalence in
meaning is established by the metalinguistic device of definition It is created not found In
the case of legislative translation this metalinguistic device operates on the legislative level
ie as part of the legislative process In other words in legislative translation equivalence in
meaning between the different language texts of the law is established by legislation not
through translation on the object-language level
Translation is of course not merely a matter of language Many things are involved in
the process Nevertheless however complicated the process is translation is invariably a
process beginning with a text and ending with another textmdashit is always from language to
language always a cross-linguistic event Whether we call this transcoding or recoding
translation remains essentially an operation with words Even when one follows cultural
theorists such as Vermeer and Snell-Hornby and re-labels translation a cross-cultural event
what we see in the end-product ie the target text remains a matter of words The
dichotomy between translation as transcoding and translation as cultural transfer is as has
CONCLUDING REMARKS 193
been shown in this study totally misguided There can be no cultural transfer without
transcoding as culture is for the most part embodied in language
As with translating Buddhist scriptures into Chinese translating the common law into
Chinese is a paradigm case of cultural transfer But again legal culture is illusory unless and
until it is embodied in language We have shown that the culture of the common law covers
the whole conceptual framework and socio-cultural background whereby the various
components of the common law are understood Part of that culture manifests itself in the
mere form of words and has to be preserved by following the same form of words in the
translation In such cases translating words is at the same time translating culture The
dichotomy between word and sense on the one hand and between word and culture simply
breaks down here But a large part of the culture of the common law can only be found
beyond the words of the law That part like equivalence in meaning cannot be handled by
translation on the same object-language level It must be handled either at the metalinguistic
level or in a separate object-level translation Once we have a clear view of how language
works and how it can be used to do what we want it to do many of the problems in
translation studies can be clarified and resolved
If this study can help clarify some of the fundamental problems concerning the notion of
translation as cultural transfer it will have achieved its intended skopos
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Cao D (2004) Chinese law a language perspective Aldershot Hants England
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198
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amp Maxwell
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Comparing legal cultures Aldershot Dartmouth
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Hatim B (2001) Teaching and researching translation Longman Pearson
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Harding A (2001) Comparative law and legal transplantation in South East Asia
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199
Hiltunen R (1990) Chapters on legal English Aspects past and present of the
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Kempson R M (1977) Semantic theory Cambridge Cambridge University Press
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Translation Studies London and New York Routledge
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E Harrell-Bond (Eds) The Imposition of law (pp289-306) New York
Academic Press
Kocbek A (2006) Language and Culture in International Legal Communication
Managing Global Transitions 4(3) 231-247
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Kuan H C (1997) Support for the Rule of Law in Hong Kong Hong Kong Law
Journal 27 187-205
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200
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Leech G (1981) Semantics The study of meaning Harmondsworth Penguin
Lee A (1996) Language and the Law in Hong Kong From English to Chinese In
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New York Printer Publishers
Lefevere A (1995) Chinese and western thinking on translation In A Lefevere amp S
Bassnett (Eds)Constructing cultures essays on literary translation Clevedon
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development Hong Kong New York Oxford University Press
Lloyd D (1964) The idea of law Harmondsworth Penguin Book
Lloyd-Bostock S M (1979) Explaining compliance with imposed law In SB
Burman amp B E Harrell-Bond (Eds) The Imposition of law (pp9-26) New
York Academic Press
201
Maley Y (1994) The language of the law In J Gibbons (Ed) Language and the
Law Longman Singapore Publishers (Pte) Ltd
Meijer M J (1976) The introduction of modern criminal law in China Arlington
Va University Publications of America
Mellinkoff D (1963) The Language of the Law Little Brown amp Co Boston
Merryman J H (1985) The civil law tradition an introduction to the legal systems
of Western Europe and Latin America Stanford Calif Stanford University
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Munday J (2001) Introducing translation studies Theory and applications
Routledge London and New York
Newman A (1980) Mapping translation equivalence London Academic Publishing
Company
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Newmark P (1988) A textbook of translation Prentic Hall International English
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Nguessan K M (1995) Explorations in interlingual legal communication a
comparison of American and French terminologies Ann Arbor Mich UMI
Nida E A (1964) Toward a science of translating with special reference to
principles and procedures involved in Bible translating Leiden E J Brill
Nida E A (1975) Exploring semantic structures Wilhelm Frink Verlag
Munchen
Nida E A amp Taber CR (1969 1982) The theory and practice of translation
Leiden E J Brill
Nida E A amp Waard J de (1986) From one language to another Functional
equivalence in Bible translation Nashville Thomas Nelson
202
Nord C (1997) Translating as a purposeful activity functionalist approaches
explained Manchester St Jerome
Okoth-Ogendo H (1979) The imposition of property law in Kenya In SB Burman
amp B E Harrell-Bond (Eds) The Imposition of law (pp147-166) New York
Academic Press
Ogden C K amp Richards I A (1923) The meaning of meaning A study of the
influence of language upon thought and of the science of symbolism London
Routledge amp Kegan Paul
Paler L (2005) Chinarsquos Legislation Law and the Making of a More Orderly and
Representative Legislative System The China Quarterly 302
Peirce C S (1931-1958) Collected papers of C S Peirce C Hartshorne P Weiss
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Poon WY (2005) Cultural transfer in legal translation International Journal for the
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Roebuck D (1990) The Background of the Common Law Hong Kong Oxford
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Roebuck D (1991) Law in a foreign language the Hong Kong experience
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Roebuck D amp Sin K K (1993) The ego and I and ngo Theoretical problems in
the translation of the common law into Chinese In R Wacks (Ed) China
Hong Kong and 1997 Essays in legal theory (185-210) Hong Kong Hong
Kong University Press
203
Roebuck D Ed (1995) The Criminal law of Hong Kong A descriptive text Beijing
Peking University Press
Robinson D Ed (1997) Western translation theory From Herodotus to Nietzsche
Manchester St J
Sacco R (1991) Legal formants A dynamic approach to comparative law American
Journal of Comparative Law Vol 39 No 1 pp 1-34
Sager J C (1990) A practical course in terminology processing Amsterdam
Philadelphia John Benjamin Publishing Company
Sager J C (1997) Text types and translation In A Trosborg (Ed) Text Typology
and Translation (pp25-43) AmsterdamPhiladelphia John Benjamins
Publishing Company
Sarat A amp Kearns T R Eds (1999) Cultural pluralism identity politics and the
law University of Michigan Press
Sarcevic S (1997) New approach to legal translation The Hague Longdon Boston
Kluwer Law International
Sarcevic S (2000) Legal Translation and Translation Theory A
Receiver-Oriented Approach httpwwwtradulexorgActes2000sarcevicpdf
Saussure F d (1857-1913) Course in general linguistics C Bally A Sechehaye amp
A Riedlinger (Eds) R Harris(Trans) (1986) LaSalle IllOpen Court
Schleiermacher F (1799) On the different methods of translating In D Robinson
(Ed) Western Translation Theory from Herodotus to Nietzsche Manchester
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Searle J R (1969) Speech acts An essay in the philosophy of language Cambridge
UK Cambridge University Press
Searle J R (1979) Expression and meaning Cambridge UK Cambridge University
Press
204
Shum C (1992) General principles of Hong Kong Law Hong Kong Longman
Sin K K (1989) Meaning Translation and Bilingual Legislation In P Pupier amp J
Woehrling (Eds) Proceedings of First International Conference on Language
and Law 509-515
Sin K K (1992) The translatability of law In HT Lee (Ed) Chinese Linguistics in
Hong Kong (pp87-101)
Sin K K amp Roebuck D (1996) Language Engineering for Legal Transplantation
Conceptual Problems in Creating Common Law Chinese In R Harris (Ed)
Language and Communication Vol 16 No3 235-254
Sin K K (1998) The common law in uncommon Chinese Linguistic anomalies and
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Sin K K (1998) The missing link between language and law Problems of
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Snell-Horny M (Ed) (1986) Ubersetzungswissenschaft ndash Ein Neuorientierung
Zur Integrierung von Theorie und Praxix Turbigen Francke
Snell-Hornby M (1988) Translation studies an integrated approach Amsterdam J
Benjamins
Snell-Hornby M (1990) Linguistic transcoding or cultural transfer A critique of
translation theory in Germany In S Bassnett amp A Lefevere (Eds) Translation
history and culture London and New York Pinter Publishers
Snell-Hornby M (1992) Translation as Cultural Shock Diagnosis and Therapy
Wei Lun Lecture Series IV Lecture delivered at the Chinese University of
Hong Kong December 1992
205
Snell-Hornby M (1998) Translation as a cross-cultural event Midnightrsquos
ChildrenmdashMitternachtskinder In G Toury (Ed) Translation across cultures
Bahri Publications
Snell-Hornby M (2006) The turns of translation studies John Benjamins Publishing
Company AmsterdamPhiladelphia
Solan ML (1993) The language of Judges Chicargo The University of Chicago
Press
Summers R S (2000) Essays in legal theory Dordrecht Kluwer Academic
Publishers
Su L (2004) Perhaps it is taking placemdashthe science of law of China in the
transitional period Beijing Law Press
Svarverud R (1998) Methods of the way early Chinese ethical thought Leiden
Boston Brill
Swales J (1981) Aspects of article introductions Birmingham England LSU
University of Aston
Taylor C (1998) Language to language A practical and theoretical guide for
Italian and English translators Cambridge University Press
Thornton G C (1979) Legislative drafting LondonButterworths
Tiersma P M (1999) Legal language Chicargo the University of Chicargo Press
Toury G (1980) In search of a theory of translation Tel Aviv Porter Institute
TouryG (1995) Descriptive translation studies and beyond Amsterdam J
Benjamins Pub
Toury G (2007) Culture planning and translation (in press) Forthcoming in A
Alvarez et al (Eds) Proceedings of the Vigo Conference anovadores de noacutes -
anosadores de voacutes
206
Trosborg A (1997) Text typology Register genre and text type In A Trosborg
(Ed) Text typology and translation (pp3-24) AmsterdamPhiladelphiaJohn
Benjamins Publishing Company
Trsquosou B K amp Kwong OY (2003) When laws get common Comparing the use of
legal terms in two corpora In Language and Linguistics 43 609-629
Ujejski T (1989) The future of the English language in Hong Kong law In Wacks
Ramond (Ed) The future of the law in Hong Kong (pp164-188) Hong
Kong Oxford University Press
Yu XZ (2004) Law and legal interpretation Law and politics book review Vol 14
No 5 305-311
Vandevelde K J (1996) Thinking like a lawyer An introduction to legal reasoning
Westview Press
Varga C (1992) Comparative legal culture Dartmouth Publishing CoLtd
Venuti L Ed (1992) Rethinking translation discourse subjectivity ideology
Routledge London
Venuti L (1995) The Translatorrsquos invisibility A history of translation Routledge
London
Vermeer H J (1986) Ubersetzen als kultureller Transfer In M Snell-Horny (Ed)
Ubersetzungswissenschaft ndash Ein Neuorientierung Zur Integrierung von
Theorie und Praxix Turbigen Francke 30-53
Vermeer H J (1996) A Skopos theory of translation some arguments for and
against Heidelberg [Germany] Textcontext
Wacks R (1989) (Ed) The future of the law in Hong Kong Hong Kong Oxford
University Press
Watson A (1974) Legal transplants An approach to comparative law Edinburgh
Scottish Academic Press Ltd
207
Watson A (1991) Legal culture v Legal tradition American Journal of
Comparative Law 39
Watson A (2001a) Legal transplants and European private law Electronic Journal
of Comparative Law (December 2000) Vol 44 Website
httpwwwejclorgejcl4444-2html
Watson A (2001b) The evolution of western private law Baltimore The Johns
Hopkins University Press
Watson B (1998 April) Have our English language documents passed their
lsquouse-byrsquo date Hong Kong Lawyer 1998 23
Wesley-smith P (1993) The common law of England in the Special Administrative
Region In R Wack (Ed) Hong Kong China and 1997 essays in legal theory
(pp5-40) Hong Kong Hong Kong University Press
Wesley-smith P (1994) The sources of Hong Kong law Hong Kong Hong Kong
University Press
White JB (1990) Justice as translationmdashAn essay in cultural and legal criticism
The University of Chicago Press
Willliam R (1961) Culture and society 1780-1950 Harmondsworth Penguin
Wilss W (1982) The science of translation problems and methods Tubingen
Gunter Narr Verlag
Wong K C (1998) The Behavior of Qing Dynasty Speech Crime Law in China A
Cross-Cultural Application of Blackrsquos Theory of Law A Bell and Howell
Information Company Ann Arbor MI
Wong H M (1999 November) The myth of legal bilingualism in Hong Kong Hong
Kong Lawyer 31-32
208
Chinese Works
蔡奇林 (2002) lt六群比丘」與「六眾苾芻」 - 兼談佛典仿譯及其對漢語的影
響gt 「漢文佛典語言學國際學術研討會」論文 佛學研究中心學報 2004
年第 9 期台北市 台灣大學文學院佛學研究中心
httpccbsntuedutwFULLTEXTcfb_cbsj-2htm
何勤華等編著 (1994) 中西法律文化通論 復旦大學出版社
江必新 (2003) 中國法文化的淵源與流變 北京市 法律出版社
金聖華冼景炬 (2004) 香港法律中譯的幾個問題 翻譯學報 2004 年第九期
香港 香港中文大學翻譯系
梁治平主編 (1994) 法律的文化解釋 生活`讀書`新知三聯書店
劉作翔 (1999) 法律文化理論 北京商務印書館
沈達明編著 (1993) 英美合同法引論 北京對外貿易教育出版社
楊楨 (1997) 英美契約法論 北京北京大學出版社
周長齡 (1997) 法律的起源 北京中國人民公安大學出版社
張德美 (2003) 晚清法律移植研究 北京清華大學出版社
張晉藩 (1992) 清律研究 北京法律出版社
趙秉志主編 (1996) 香港刑法 北京 北京大學出版社
張中秋 (2003) 比較視野中的法律文化 北京市 法律出版社
CITY UNIVERSITY OF HONG KONG 香港城市大學
Cultural Transfer in Legal Translation A Case Study of the Translation of the
Common Law into Chinese in Hong Kong
法律翻譯中的文化轉移 香港普通法中譯個案研究
Submitted to Department of Chinese Translation and Linguistics
中文翻譯及語言學系 in Partial Fulfillment of the Requirements
for the Degree of Doctor of Philosophy 哲學博士學位
by
Wang Ling 王淩
April 2008 二零零八年四月
ii
Cultural Transfer in Legal Translation
A Case Study of the Translation of the Common Law into Chinese in Hong Kong
法律翻譯中的文化轉移 香港普通法中譯個案研究
Abstract
The term ldquocultural transferrdquo has featured prominently in contemporary
translation theory Yet perplexing as it may seem the term can and has in fact been
used to refer to two diametrically opposite concepts of translation On the one hand
ldquotranslation as cultural transferrdquo can be understood as ldquotranslation as an act of
cross-cultural communication effected by matching the cultural rather than the
linguistic elements of the two languages involvedrdquo On the other hand ldquotranslation as
cultural transferrdquo can also be understood as ldquotranslation as a process of importing or
even transplanting the culture of the source language into the culture of the target
languagerdquo Understood in the former sense translation is essentially an act of
domestication requiring no or little linguistic or conceptual adjustment of the target
language whereas understood in the latter sense translation involves both linguistic
and conceptual adjustment to accommodate the imported culture thus always
resulting in the foreignization of the target language
This study examines these two senses of cultural transfer in the context of law
translation Using the translation of the common law into Chinese in Hong Kong as a
case study it investigates which of the two senses is relevant to law translation which
aspect or aspects of the culture of the common law has or have been transferred how
such transfer has been effected and what form it has taken Through a critical analysis
iii
of the problems involved in the translating process in question it is hoped that this
study will shed some light on the question of cultural transfer and more importantly
on the nature of legal translation
This thesis is divided into two major parts Part I consists of four chapters that
provide the theoretical framework and historical background for the study Chapter 1
sets out the scope and methodology of this study by way of a brief critical account of
studies in translation theory and legal translation Chapter 2 traces the evolution of the
concept of cultural transfer in translation theory clarifies the opposed senses in which
is understood by exploring the dichotomy of domestication and foreignization and
argues why legal translation in the context of Hong Kong cannot be a case of
domestication Chapter 3 investigates the various senses of legal culture and
highlights the essential features of the legal culture of the common law Chapter 4
gives a brief historical account of the importation of foreign laws into China since the
Late Qing period (晚清) as a typical case of transfer of legal cultures examining what
such transfer involved in the process Part II is the case study of the translation of the
common law into Chinese in Hong Kong Chapter 5 examines the translatability of
the common law and analyzes the specific features of the common law language from
the aspects of its terminology legislation and case law Chapter 6 begins with a
critical analysis the problems relating to law translation in general and translating the
common law into Chinese in particular It then sets out the theoretical framework for
effecting cultural transfer It examines in detail the nature of cultural transfer in law
translation with special reference to the translation of common law terminology
Chapter 7 summarizes the study and makes some concluding remarks on its
significance for translation studies as well as its potential for future research
iv
Acknowledgments
Research is a journey of exploration Writing this dissertation has been a
challenging intellectual journey accompanied by moments of frustration
disorientation and even self-doubt One person my supervisor Dr Sin King-kui has
guided me through the twists and turns of this journey But for his patience mentoring
and encouragement I could not have completed this dissertation nor could I have
appreciated both the rigours and the joys of true scholarship He has my deepest
gratitude
I must also thank Dr Zhu Chun-shen and Dr Cheng Po-suen of my Qualifying
Panel for their valuable comments on the draft of the dissertation as well as their
unfailing support throughout my candidacy I should like too to thank the friendly
staff of the General Office of the Department who have given me enormous clerical
support in the course of my research
My thanks also go to my colleagues in the Department of Translation The
Chinese University of Hong Kong for their kind concern during the progress of my
research and their warm words of encouragement
I would like to extend a special note of thanks to my teachers in the Department
of Foreign Languages and Literature Fudan University for introducing me to the
beauties and intricacies of translation In particular I would like to thank Prof Huang
Yong-min Prof Lu Gu-sun Prof Xiong Xue-liang and Prof He Gang-qiang for
helping and encouraging me in my pursuit of further translation studies
v
I am also grateful to my fellow students and dear friends Kiki Baby Ace Sarah
Samantha Joyce Beatrice Xiao Hu Zhang Wan-min Wu Qing Shen Yuan Jiang
Qin Wen Stella Edison April Wu Xiao Sting and Lois for sharing the pains and
joys of my study
Finally I owe more than I can say to my husband Alex my sister Ciecely and
other family members for their love and unfailing support I thank my parents from
the bottom of my heart for their faith in me and for the love and support that enabled
me to embark on an academic career It is to them both that I dedicate this humble
piece of work
vi
TABLE OF CONTENTS
Title Page i
Abstract ii
Acknowledgments iv
PART I
Theoretical Framework and Historical Background
Chapter 1 Introduction 1
11 Translation Theory From Interlingual Translation to Intercultural
Translation 1
12 The Emergence of Cultural Transfer in Translation Theory 4
13 Legal Translation Theory In Search of Goal and Strategy 8
14 Rationale for the Study 12
Chapter 2 Translation as Cultural Transfer 14
21 Clarification of the Notion of Cultural Transfer 14
211 Cultural Transfer vs Transcoding 14
212 Vermeerrsquos View of Translation as Cross-cultural Transfer 24
213 Snell-Hornbyrsquos View of Translation as Cultural Transfer 28
214 Domestication vs Foreignization 35
vii
22 Legal Translation as Cultural Transfer 40
221 Legal Transplant and Legal Translation 40
222Translating the Common Law into Chinese as Cultural Transfer 46
223 Metalinguistic Devices and Cultural Transfer in Legal Translation 51
Chapter 3 The Concept of Legal Culture in Legal Translation 57
31 Previous Studies of Legal Culture 57
311 Law and Culture 57
312 Legal Culture as Conceptions of Law 62
313 Legal Culture as Both Conceptions and Practices of Law 66
32 Clarification of the Concept of Legal Culture 69
33 The Legal Culture of the Common Law 73
34 The Legal Culture of Traditional and Modern Chinese Law 77
Chapter 4 The Transfer of Legal Culture 89
41 Legal Transplant and Transfer of Legal Culture 89
411 Introduction 89
412 Legal Transplant Legal Imposition and Legal Translation 92
42 Transfer of the Legal Culture of Foreign Laws in China 98
421 Transplant of Foreign Laws since Late Qing Dynasty in China 98
422 Transfer of the Legal Culture of Foreign Laws in China 103
viii
PART II
Case Study of the Translation of the Common Law
into Chinese in Hong Kong
Chapter 5 The Language of the Common Law 106
51 The Translatability of the Common Law 106
52 Legal Terminology and Legal Concepts 112
53 The Language of the Legislative Texts and Bilingual Legislation 120
54 Case Law Languagemdashthe Language of Judges 133
Chapter 6 Cultural Transfer in Translating the Common Law into Chinese
61 Transfer of the Legal Culture of the Common Law 142
611 Problems in Translating the Common Law into Chinese 142
612 Legal Translation as Cultural TransfermdashTwo Levels of Transfer 152
62 Cultural Transfer in Translating the Common Law into Chinese
-- Analysis of Selected Translations 159
Chapter 7 Concluding Remarks 189
Bibliography 194
Chapter 1
Introduction
11 Translation Theory From Interlingual Translation to Intercultural
Translation
Traditionally regarded as a sub-field of linguistics translation was for a long
time treated as an important means of interlingual communication As Jakobson (1959)
put it ldquotranslation properrdquo was the transposition of a text from one language to
another ldquointerlingual translationrdquo as he called it ldquoinvolves two equivalent messages
in two different codesrdquo However he conceded that there was no full equivalence
between code units (1959 p 233) Jakobsonrsquos view was shared by theorists like
Catford and Nida who emphasized transference of meaning across languages and the
resultant linguistic equivalence Fidelity to the original text was considered the most
important principle governing translation and the search for best equivalence became
its primary goal Translation studies in this period stressed the textual elements
Catford for instance emphasized the correspondence of lexicon and grammar (1965)
Nida and Taber classified ldquoformal correspondencerdquo and ldquodynamic equivalence as two
major types of equivalence ldquoFormal correspondencerdquo is concerned with the message
itself and ldquodynamic equivalencerdquo with the effect (1964 1982) They acknowledged
that there were not always formal equivalents between language pairs Focusing on
the language function and relating linguistic features to the context of both the source
and target text House (1977) set out his notions of semantic equivalence and
pragmatic equivalence and proposed that the function of a text be determined by the
situational elements of the source text A more elaborate discussion of the notion of
INTRODUCTION 2
equivalence can be found in Baker (1992) who examined the notion of equivalence at
four different levels in relation to the translation process ie the word level the
grammatical level the textual level and the pragmatic level Taken together these
levels encompass all aspects of translation process
While characterizing translation as an interlingual rather than a socio-cultural
activity scholars such as Catford and Nida did not lose sight of the role that cultural
elements play in the process of translating Catford drew a distinction between
ldquocultural untranslatabilityrdquo and ldquolinguistic untranslatabilityrdquo (1964 pp101-03) Nida
examined cultural problems in translating (1981) Newmark (1988) in particular
examined untranslatable culturally specific items and put them into different
categories (p 95) However he rejected the ldquoprinciple of equivalencerdquo underlying
Nidarsquos theory of dynamic equivalence and suggested two approaches to translation
namely communicative translation which aims to produce on the target reader effects
similar to those on the source reader and semantic translation which aims to render
ldquoas closely as possible the semantic and syntactic structures of the second languagerdquo
(1988 pp 39-41) The former gives priority to the response of the target language
reader while the latter foregrounds the meaning of the original The appropriateness of
these two methods depends on the text-type and the purpose of the translation
The cultural dimension is central to both the polysystem theory of Zohar (1990)
and Touryrsquos (1980) descriptive approach The polysystem theory treats any semiotic
(poly)system (such as language or literature) as a component of a larger (poly)system
or culture Translated literature is therefore a system operating as a part of larger
social cultural and historical systems of the target culture The correlations between
literature and other cultural systems for instance language society or ideology could
INTRODUCTION 3
be seen as a functional relationship within a cultural whole By employing the notion
of norm in his treatment of translation criticism Toury (1980) pointed us in a new
direction for translation studies As he sees it translation criticism consists in the
study of metatexts produced in a given receiving culture under certain discernible
socio-cultural constraints Translation criticism therefore performs the task of
reconstructing such constraints as are operative in a particular translation It sets out to
identify constraints of translation behaviour describe the decision-making process the
translator has gone through and formulate hypotheses capable of being tested by
further studies Touryrsquos idea can be said to have inspired the ldquocultural turnrdquo in
translation studies in the 1990s
It was around this time too that translation theory began to undergo a rather
radical transformation Translation was increasingly seen as involving a conscious act
of manipulation that moved the author toward the reader and made texts as palatable
in the target language and culture as they were in the source language and culture The
ideals of equivalence and faithfulness were now being seriously questioned The
cultural turn in translation studies shifted away from purely linguistic analysis
redefining translation as intercultural communication and focusing on the
socio-cultural and ideological dimensions of translating For Lefevere (1992)
translation was essentially rewriting and manipulation He remarked
On every level of the translation process it can be shown that if linguistic considerations enter
into conflict with considerations of an ideological and or poetological nature the latter tend to
win out (p 9)
INTRODUCTION 4
Another cultural theorist Venuti (1995) who drew a distinction between
domestication and foreignization also insisted that translation must take into account
the value-driven nature of the socio-cultural framework within which it is carried out
Culture and cultural elements are no longer seen as impediments to successful
linguistic transfer Rather culture is an encompassing framework within which
effective translation operates The cultural turn widens the scope of translation by
revealing that the translator not only works with the language pair in question ie the
source text and the target text but also with the two cultures ie the source culture
and the target culture Translation is now considered a purposive activity The
outcome or product of translation is understood in a wider context and the factors
affecting the translatorrsquos decision making process are given special emphasis
12 The Emergence of Cultural Transfer in Translation Theory
The characterization of translation as cultural transfer is an outcome of the trend
mentioned in section 11 According to Vermeerrsquos (1996) skopos theory translation is
a cross-cultural transfer a form of human interaction determined by its purpose or
ldquoskoposrdquo Following Vermeer Snell-Hornby (1988) denounced linguistic transfer as
inadequate contending that translation should instead be seen as a cross-cultural event
Translation as cultural transfer has become a dominant view resulting from the
ldquocultural turnrdquo in translation theory and a ldquoshift of emphasisrdquo from ldquoformalist phaserdquo
to ldquobroader issues of context history and conventionrdquo (Bassnett 1998 p 123)1
1 Back in 1990 Bassnett and Venuti observed that major changes in translation studies had taken place
They remarked
INTRODUCTION 5
Hatim (2001) also labelled this ldquoinfluential trend in recent translation studiesrdquo as ldquothe
cultural modelrdquo an approach contrary to the linguistic model which dominated early
translation studies in the last century (p 44) Snell-Hornby (2006) described the
ldquocultural turn of the1980srdquo as the trend driven by the theoretical impetus from various
sources such as descriptive translation studies skopos theory and deconstructionism
(p 47)2
Snell-Hornby (1988) first employed the term ldquocross-cultural transferrdquo in
subscribing to Vermeerrsquos view that translation was not the trans-coding of words or
sentences between languages but a ldquocross-cultural transferrdquo (p 46) She argued that
in traditional linguistic oriented theory ldquothe text was then seen as a linear sequence of
units and translation was merely a trans-coding process involving the substitution of a
sequence of equivalent unitsrdquo and that the equivalence-centred studies carried out by
Jacobson Nida and Catford were crippled by the very concept of equivalence (pp
16-19) She contended that the pursuit of equivalence was an incurable illusion based
on the false presumption of absolute symmetry between languages and was thus a
distortion of the fundamental problems in translation Her denunciation of equivalence
was best represented by the following remarks
The object of study has been redefined what is studied is the text embedded in its network of
both source and target cultural signs and in the way Translation Studies has been able to utilize
the linguistic approach and to move out beyond it (p 12) 2 Toury (2007) noted the influence of cultural studies in translation He remarked
The last decade has been marked by the foregrounding of cultural concerns in all the sciences of
man including the ones interested in language and language behavior This development has
already brought along substantial changes in the way phenomena lsquoin the world of our
experiencersquo are approached which students of translation were among the first to applaud - and
adopt There were even colleagues who nicknamed the 1980s the era of rsquocultural turnrsquo in
Translation Studies (eg Bassnett and Venuti 1990) even though it is not always all that clear
what this term was meant to cover (p 1)
INTRODUCTION 6
In this study the view is also taken that equivalence is unsuitable as a basic concept in translation
theory the term equivalence (the authorrsquos italics) apart from being imprecise and ill-defined
(even after a heated debate of over twenty years) presents an illusion of symmetry between
languages which hardly exists beyond the level of vague approximations and which distorts the
basic problems of translation (1988 p 22)
In explaining the nature of translation she noted that ldquolanguage is not seen as an
isolated phenomenon suspended in a vacuum but as an integral part of culturerdquo (p
39)3 Apart from the definition given by Goodenough and Gohring Snell-Hornby
also subscribed to Vermeerrsquos concept of culture in translation She remarked
This new definition correlates with the concept of culture now prevalent in translation theory
particularly in the writings of Vermeer hellip and is the one adopted in this study hellip the concept of
culture as a totality of knowledge proficiency and perception is fundamental in our approach to
translation If language is an integral part of culture the translator needs not only proficiency in
two languages he must also be at home in two cultures In other words he must be bilingual and
bicultural (cf Vermeer 1986) (1988 pp 40 42)
According to Snell-Hornby Vermeer was among the first to argue that the linguistic
approach was far from adequate for understanding the nature of translation and that
3 Commenting on the definition provided by American ethnologist Ward H Goodenough and German
scholar Heinz Gohring Snell-Hornby(1988) remarked
There are three important points common to both definitions quoted above but which are
especially prominent in Gohringrsquos German adaptation firstly the concept of culture as a totality
of knowledge proficiency and perception secondly its immediate connection with behaviours
(or action) and events and thirdly its dependence on norms whether those social behaviours or
those accepted in language usage (p 40)
INTRODUCTION 7
translation was first and foremost a cross-cultural transfer In this regard Vermeer
remarked
Translation is not the trans-coding of words or sentences from one language to another but a
complex form of action whereby someone provides information on a text (source language
material) in a new situation and under changed functional cultural and linguistic conditions
preserving formal aspects as closely as possible (Snell-Hornby 1990 p 82)
Rather than giving emphasis to the equivalence of linguistic units such as words
or sentences Vermeer began to view translation as a complicated action in a broader
socio-cultural context In his skopos theory translation is a form of human interaction
determined by its ldquoskoposrdquo or purpose Following in the footsteps of Vermeer
Snell-Hornby took a cultural approach abandoning linguistic equivalence as the goal
of translation She held that the translatorrsquos cultural knowledge proficiency and
perception underpinned not only his ability to ldquoproduce the target text but also his
understanding of the source textrdquo (p 42) In other words understanding of the cultural
elements of both the SL and TL was a pre-requisite in translation However she did
not explain how translation could take place between cultures without taking
linguistic equivalence into consideration
The notion of cultural transfer has been given different and even conflicting
interpretations in the literature and the range of empirical facts judged to be relevant
to the study of cultural transfer varies from theory to theory In addition any study of
translation must deal with the language pair in question and translation is always a
verbal representation of the source text In the next chapter we will scrutinize the
notion of cultural transfer and examine the questions at issue
INTRODUCTION 8
13 Legal Translation Theory In Search of Goal and Strategy
In traditional translation theory legal texts were regarded as a species of LSP
text and their translation was accordingly treated as a kind of technical translation In
recent translation theory a change in perspective has occurred along with the
emergence of approaches centered on cultural and communicative factors described in
section 11 The translation of legal texts has increasingly been regarded as a
communicative act no longer a mere operation on the technical linguistic elements to
achieve verbal and grammatical parallelism as well as equivalence in legal meaning
Moreover the translator is no longer considered a passive mediator but rather an
intercultural operator whose choices are increasingly recipient-oriented and based not
only on strictly linguistic criteria but also on extra-linguistic considerationsmdashfirst and
foremost the function of the translated text in the target culture In this section we
will look at studies in legal translation with respect to its goal and strategy
Wilss (1982) observed that at the outset of translation studies it was generally
agreed that the goal of all translation was to achieve equivalence by producing the
closest possible equivalent text In normal practice the legal translator was expected
to produce a strictly literal translation to retain the elements of the original texts The
basic unit of translation was still the word Basic changes in syntax were permitted so
as to respect the grammatical rules of the target language
Approaching legal translation from the perspective of communication Sager
(1997) held that recent translation theory had taken into consideration cultural
differences between the source and target languages as well as the purpose of the
translated text He also noted that the concept of equivalence had been modified to
INTRODUCTION 9
text-type equivalence as opposed to textual equivalence Rejecting the static view of
linguistic equivalence and characterizing translation ldquoas one possible step in a
communication process between two culturesrdquo Sager proposed an approach to
translation based on communication theory with a view to ldquoredefining the relationship
between source and target textrdquo (pp 26 27) The translator was considered as an
information mediator who needed to identify the writerrsquos intention the readerrsquos
expectation the text-type in question and possible ways to reconstruct them In
relation to translation strategy he also pointed out that the traditional concept of
translation which aimed to preserve both content and intention applied only in the
case of translation of a letter or a technical instruction from one language to another
Sagerrsquos communicative approach represents a shift of focus from source text to target
text and frees the legal translator from the rigid grip of linguistic equivalence
However Sager did not explain how the legal translator could reconcile the writerrsquos
intention with the readerrsquos expectations and in what ways the goals of translation of
legal language as a special text-type differed from goals in translating other text-types
Functionalists who focus their attention on the concepts of skopos and
target-orientedness no longer take the source text as the only standard for assessing a
translation Instead translation is now assessed on the basis of its adequacy for the
communicative purpose within the target culture (Vermeer 1984 Nord 1991 1997)
As for the applicability of this approach to legal translation functionalists have
claimed that their theory is comprehensive and applicable to all text-types in all
situations (Vermeer 1982 p 99) But doubts have been raised as to whether the
functional approach could be validly applied to LSP texts and in particular to legal
texts (Trosborg 1997) The main objections are centred on the typical
recipient-orientedness of the functional approach which seems inappropriate for legal
INTRODUCTION 10
language which is governed by rigorous rules of interpretation In response to such
objections Šarčević (1997) argued that legal translation should no longer be regarded
as a process of linguistic trans-coding but an act of communication in the mechanism
of law (p 55) She criticized scholars who focus their attention primarily on language
and the linguistic elements of the text for ignoring the fact that legal translation was
also receiver-oriented and that legal communication could be effective only if
interaction was achieved between text producers and receivers (pp 55-56) She thus
redefined the goal of legal translation as the production of a text with the same
meaning and effect as the original text with special emphasis on effect The translator
should also preserve the unity of a single instrument by striving to produce a text that
would be interpreted and applied by the courts in the same manner as the other
parallel texts of that instrument particularly the original (p 72) In order to achieve
this goal a thorough understanding of the legal cultures in which the translation
ultimately functions is a must as translation problems emerge as a result of different
legal histories and cultures Legal translators could only overcome the problems posed
by different legal cultures with a clear knowledge of the fundamental differences
between legal systems For Šarčević understanding the legal cultures of ST and TT is
vital for legal translation Like functionalists she attaches a great deal of importance
to the communicative function of legal translation However she does not explain
how the legal translator could simultaneously achieve the same meaning and the same
effect as the source text
Taking the view that legal texts form a specific genre with their own unique
linguistic framework and generic knowledge text typology as recently developed has
positive implications for the goal and theoretical methodologies of legal translation
Trosborg (1997) held that distinguishing between political texts legal texts and other
INTRODUCTION 11
text-types was of great significance as they required different translation approaches
Defining genre analysis as ldquothe study of situated linguistic behavior in
institutionalized academic or professional settingsrdquo Bhatia (1997) adopted a
genre-based approach to translation He noted two crucial characteristics of genre
analysis One is that genre analysis is not ldquoan extension of linguistic formalismrdquo in the
sense that it examines the use of language to achieve the communicative purpose
rather than linguistic equivalence The second is that genre theory explores ldquoall
aspects of socio-cognitive knowledge situated in disciplinary cultures in order to
analyze construction interpretation and use of linguistic communication to achieve
non-linguistic goalsrdquo (p 205) Therefore the genre-based approach to legal translation
is by nature a pragmatic study of the use and effect of language within a particular
legal culture For Bhatia the goal of legal translation must include the ldquoaccessibility
of the target text for a specific audiencerdquo and he therefore advocated the method of
easification ldquoa process of making a text-genre more accessible to an intended
readership without sacrificing its generic integrityrdquo (p 209) He held that this
genre-based approach to the teaching and learning of translation had the advantage of
encouraging the learner He remarked
hellip this awareness of participation in the ownership of the genres of legal culture is what Swales
(1990) calls raising rhetorical consciousness in the learner (or translator) (p 212)
Accordingly cultural awareness is a pre-requisite for the legal translator While
Bhatiarsquos approach to legal translation is genre-based his emphasis on legal culture is
similar to Šarčevićrsquos view He also held that the goals of legal translation should
include the readability of the target text
INTRODUCTION 12
We can see from the discussion above that legal translation has been
approached from three different perspectives There has been a shift from producing
the closest possible equivalent text to producing a text with the same meaning and
effect as the other parallel text(s) a shift of focus in translation theory from fidelity to
the source text to the readability of the target text and a shift from the merits of
interlingual equivalence to the demands of cross-cultural communication Awareness
of the differences between the cultures of different legal systems is of paramount
importance in legal translation In the next chapter we will re-examine the goal of
legal translation and show in the light of a clarified notion of cultural transfer that
cultural transfer as domestication is not appropriate for the kind of legal translation
which aims to produce an authentic version of the law
14 Rationale for the Study
The rationale for the present study is twofold Firstly cultural transfer is
arguably the most discussed but least understood concept in recent translation
theory In the absence of a clear notion of what this concept means it is difficult to
arrive at a judicious understanding of the nature of translation Secondly legal
translation in particular legislative translation as carried out in Hong Kong can serve
as an exemplary case study for understanding the multi-faceted problems relating to
the concept of cultural transfer As will be shown cultural transfer in Snell-Hornbyrsquos
sense ie domestication at the cultural level is totally inappropriate for legal
translation The question we have to address is what does ldquocultural transferrdquo mean in
legal translation and how is it effected
INTRODUCTION 13
The translation of the English legislation enacted before 1987 into Chinese in
Hong Kong was clearly a mammoth legal project4 While this was completed before
the handover of the sovereignty of Hong Kong to the Peoplersquos Republic of China on 1
July 1997 a good part of the common law including case law has yet to be translated
or represented in one form or another in Chinese It is hoped that the theoretical
inquiry into cultural transfer in legal translation undertaken by the present thesis can
provide some insights into the future development of bilingual legislation in Hong
Kong
4 English had been the language of the law since Hong Kong became a British colony in 1842 and
remained so until Section 4 of the Official Language Ordinance as amended in 1987 stipulated that
ldquo[a]ll Ordinances shall be enacted and published in both official languagesrdquo The Interpretation and
General Clauses Ordinance as amended in 1987 defined ldquoofficial languagerdquo as ldquothe English language
and the Chinese languagerdquo
Chapter 2
Translation as Cultural Transfer
21 Clarification of the Notion of Cultural Transfer
211 Cultural Transfer vs Transcoding
Despite years of debate translation scholars are still wrestling over whether a
translation should be literal or free In traditional theory literal translation has been
characterized as a word-for-word transmission of a text from one language into
another The adequacy of translation has traditionally been judged on the basis of the
degree of lexical and grammatical correspondence between the source and target
languages Such correspondence is often defined in terms of equivalence Thus
fidelity to the original text is considered the most important principle of translation
and the main task of the translator is to find the best equivalence On the other hand
free translation has been characterized as a sense-for-sense transmission not
constrained by the lexicon or grammar thus giving the translator absolute freedom as
to how to render the source text in the target language Challenging the rigid
dichotomy of word and sense Snell-Hornby (1988) contended that it was rooted in
the ldquoillusion of equivalencerdquo (p 13) and as we have already noted advocated the
notion of cultural transfer as a complete break with the traditional theory She pointed
out that this new orientation had in fact already been put forward by several German
scholars in the 1980s She said
TRANSLATION AS CULTURAL TRANSFER
15
What is dominant in the three new basic approaches recently presented in Germany hellip is the
orientation towards cultural rather than linguistic transfer secondly they view translation not as
a process of transcoding but as an act of communication thirdly they are all oriented towards
the function of the target text (prospective translation) rather than prescriptions of the source text
(retrospective translation) fourthly they view the text as an integral part of the world and not as
an isolated specimen of language These basic similarities are so striking that it is not exaggerated
to talk of a new orientation in translation theory (pp 43-44)
Adopting Vermeerrsquos view that translation is a ldquocross-cultural eventrdquo
Snell-Hornby argued that translation was not simply as ldquoa matter of languagerdquo but a
ldquocross-cultural transferrdquo (p 46) As has been noted in section 11 Vermeer (1996) in
his endeavour to establish skopos theory held that translation was not the
trans-coding of words or sentences from one language to another but a complex form
of action Skopos theory is basically a functional theory and ldquoits concern is the
potential functionality of a target-text (translationtranslatum) under target-culture
(lsquorecipientsrsquo) conditionsrdquo (1996 p 31) Vermeer emphasized that the target culture
constrained the choices available to the translator urging her to pay special heed to
the convention of the target culture and the expectations of the target reader which in
turn pre-determine the function of the translation In refuting the concept of
equivalence he contended
It is not the source-text equivalence (or more loosely correspondence) requirement which
guides the translation procedure but the skopos eg to show target-text recipients how a
source-text iswas structuredrdquo (1996 p 51)
TRANSLATION AS CULTURAL TRANSFER
16
One of the main factors in the skopos of a communicative activity is ldquothe (intended)
receiver or addressee with their specific communicative needsrdquo (1996 p 46) He
claimed that skopos theory applied to all translations and the function of the
translation in the target text could differ from that of the source text The same text
could therefore be translated in different ways depending on its function and the
translatorrsquos main task was to produce a new text that satisfies the cultural expectations
of target receivers
As Vermeerrsquos and Snell-Hornbyrsquos proposed new orientation was intended as a
revolt against the prevailing linguistic approach we now need to look back at the
major tenets of this earlier turn
Catford is generally acknowledged to be the founder of the linguistic school in
translation theory In defining translation as ldquothe replacement of textual material in
one language (SL) by equivalent textual material in another language (TL)rdquo (1965 p
20) Catford presupposed the existence of linguistic equivalence between SL and TL
For him textual material was not ldquothe entirety of a SL textrdquo but mainly the ldquogrammar
and lexisrdquo (p 20) He further made a linguistic break-down of SL and TL into what he
called ldquoextentrdquo ldquolevelsrdquo and ldquoranksrdquo employing equivalence as a key concept
throughout (p 21) He said
The central problem of translation practice is that of finding TL translation equivalents A
central task of translation theory is that of defining the nature and conditions of translation
equivalence (p 21)
TRANSLATION AS CULTURAL TRANSFER
17
Thus in Catfordrsquos view the central problem and task of translation centre around the
concept of equivalence He further distinguished between ldquotextual equivalencersquordquo and
ldquoformal correspondencerdquo two basic translation equivalences in his theory (p 27)5
Equivalent units in the TL vary in size from the entire text to any portion of the text
having a wider scope than formal correspondence In his view textual equivalence is
represented by the occurrence of a TL textual equivalent for a specific SL item
allowing equivalence-probabilities to be established between the two (p 30)
Thus for Catford establishing equivalence-probabilities is an ideal goal of
translation as these allow translation to be carried out in a manner similar to
mathematics
On the other hand formal correspondence as Catford pointed out is best
exemplified by translation between two languages both of which operate with
ldquogrammatical units at (all) five ranksrdquo (for example English and French)6 While
formal correspondence is harder to achieve as it requires the nearest match between
TL and SL grammatical categories and can only be fulfilled through textual
equivalence Catford maintained that the former is still ldquoan essential basis for the
discussion of problems which are important to translation theory and necessary for its
applicationrdquo in translation practice (pp 32-33) Observing that there are always ldquosome
departures from the formal correspondencerdquo what he called ldquoshiftsrdquo he conceded that
5 The definitions of textual equivalence and formal correspondence are given as follows
A textual equivalence is any TL text or portion of text which is observed on a particular occasion
by methods described below to be the equivalent of a given SL text or portion of text A formal
correspondence on the other hand is any TL category (unit class structure element of structure
etc) which can be said to occupy as nearly as possible the lsquosamersquo place in the lsquoeconomyrsquo of the
TL as the given SL category occupies in the SL (Catford 1965 p27) 6 The five ranks are sentence clause group word morpheme (Catford 1964 p32)
TRANSLATION AS CULTURAL TRANSFER
18
formal correspondence can only be approximate in nature He further distinguished
between two major types of ldquoshiftsrdquo level shifts and category shifts In general terms
they are linguistic units in SL which have TL equivalents belonging to a different
linguistic level or category (1965 p 73) Thus Catford was well aware that
ldquotranslation equivalence does not entirely match formal correspondencerdquo That is why
he resorted to textual equivalence (p 82) He was also aware that even textual
equivalence is not always achievable because of two kinds of un-translatability
linguistic and cultural Linguistic un-translatability occurs when there is no lexical or
syntactical substitute in the TL for an SL item whereas cultural un-translatability is
due to the absence in the TL culture of a relevant situational feature for the SL text
We are now in a better position to assess Snell-Hornbyrsquos critique of Catfordrsquos
linguistic theory of translation Her main criticism7 centres around the foundation of
his linguistic approach which seems to her shaky
Catford bases his approach on isolated and even absurdly simplistic sentences of the type
propagated in theory of transformational grammar as well as on isolated words from such
examples he drives ldquotranslation rulesrdquo which fall far short of the complex problems presented by
real-life translation (1988 p 20)
Anyone who has read Catford carefully can see that this criticism is totally
unfounded According to Catford translation textual equivalents are discovered by
two methods namely by consulting the linguistic intuition of competent bilingual
7 Snell-Hornby also dismissed Catfordrsquos definition of textual equivalent as circular (1988 p20) She
is correct on this point as Catford did use the term ldquoequivalentrdquo to define ldquotextual equivalentrdquo (see
footnote 5 above)
TRANSLATION AS CULTURAL TRANSFER
19
informants or translators or through a formal procedure of commutation and
observation of concomitant variation the latter being ldquothe ultimate testrdquo (1965 pp
27-28) But Snell-Hornby completely and conveniently ignores the second method
directing her attack solely on the first
Anyone with experience in translation knows all too well the opinions of the most competent
translators can diverge considerably and the hellip [first method] ismdashfor a rigorously scientific
disciplinemdashhopelessly inadequate (1988 p20)
This criticism fails to do justice to Catford He made it very clear that consulting
the linguistic intuition of competent bilingual informants or translators works only for
simple cases but that for complicated cases the formal procedure may be used (p 28)
To illustrate this point let us adapt Catfordrsquos examples Suppose we have the
following sentence pair
1a 我的兒子六歲
1b My son is six
If we change ldquo兒子rdquo of 1a to ldquo女兒rdquo to obtain
1c My daughter is six
then the changed portion of 1b namely ldquodaughterrdquo can be taken to be the equivalent
of the changed portion of 1a namely ldquo女兒rdquo ie ldquodaughterrdquo = ldquo女兒rdquo The method
applies not only to lexical words but also to structural words Consider the following
sentence pair
2a 地上有黃金
2b There is gold on the ground
TRANSLATION AS CULTURAL TRANSFER
20
If we change ldquo上rdquo in 2a to ldquo下rdquo to obtain
2c There is gold under the ground
likewise the changed portion of 2b namely ldquounderrdquo can be taken as the equivalent of
the changed portion of 2a namely ldquo下rdquo ie ldquounderrdquo = ldquo下rdquo
Of course the procedure is not always so straightforward Finding a translation
equivalent may involve the very complicated procedure of comparing a great number
of sentence pairs However complicated it can nonetheless be carried out rigorously
and each of its finding subjected to very strict tests
What is most noteworthy about Catfordrsquos second method is that it is an empirical
and probabilistic one Translation equivalence is ldquoan empirical phenomenon
discovered by comparing SL and TL textsrdquo (p 27) Well aware of the fact that
equivalence between an SL item and a TL item is not always a one-to-one
correspondence Catford assigned a probability value to each equivalent pair ranging
from 0 (zero equivalent) to 1 (one-to-one) The following is Catfordrsquos own example
[I]n a French short story of about 12000 words the preposition dans occurs 134 times The
textual equivalent of this in an English translation is in in 98 occurrences into in 26 from in 2
and about and inside in one occurrence each there are six occurrences of dans where the
equivalent is either nil or not an English preposition hellip In terms of probabilities we can state the
translation equivalences as follows dans = in 73 dans = into 19 dans = from 015 dans =
aboutinside 0075 This means that if you select any occurrence of dans at random in this text
the probability that its translation equivalent on that occasion is in is 73 the probability that it is
into is 19 etc (1965 p 30)
TRANSLATION AS CULTURAL TRANSFER
21
Catford further distinguished between two types of probability value namely
unconditioned probabilities and conditioned probabilities the latter being values
affected by contextual and co-textual factors (pp 31-32) He went on to make the
following remark
Provided the sample is big enough translation-equivalence-probabilities may be generalized to
form lsquotranslation rulesrsquo applicable to other texts and perhaps to the lsquolanguage as a wholersquomdashor
more strictly to all texts within the same variety of the language (p 31)
Thus nothing is further from the truth than accusing Catford of deriving
translation rules from ldquoabsurdly simplistic sentencesrdquo as alleged by Snell-Hornby
Quite on the contrary for Catford they are derived from a big enough samplemdash a big
enough corpus in contemporary linguistic terminology More crucially his approach
is in all important respects the same as the corpus-based approach in translation
studies today which aims to extract translation rules from a huge parallel corpus of
translated texts Catford can thus properly be said to be the pioneer of the
corpus-based approach in translation studies
Three further points must be made about Catfordrsquos linguistic approach
particularly since it has been so unfairly and widely criticized even to the extent of
making it something of a dead horse in translation studies today
First Catfordrsquos linguistic approach is by no means built on the ldquoillusion of
equivalencerdquo For he expressly states that ldquothe SL and TL items rarely have lsquothe same
meaningrsquo in the linguistic senserdquo (p 49) ldquosince every language is formally sui generis
and formal correspondence is at best a rough approximationrdquo (p 36) Translation
TRANSLATION AS CULTURAL TRANSFER
22
equivalence is therefore not based on sameness in meaning but on functional
interchangeability in the same context (p 49) Put briefly a TL sentence T is a
translation equivalent of an SL sentence S if T and S have overlapping meanings
relevant to the context in question (pp 37-39) such that T ldquocan function in the same
situationrdquo as S (p 49)8 Accordingly the aim of translation is Catford argued to
select TL equivalents ldquonot with the same meaning as the SL items but with the
greatest possible overlap of situational rangerdquo (p 49) Catfordrsquos ldquotranslation
equivalentrdquo looks very much the same as Nidarsquos ldquoclosest natural equivalentrdquo but it
differs from the latter in one crucial aspect in that it is invariably context-dependent
whereas the latter can be context-free
Another equally important point about Catfordrsquos linguistic approach can best
been seen from the following passages
hellip[A] manifestation of the lsquosame meaningrsquo or lsquomeaning-transferencersquo fallacy is seen in the view
that translation is a lsquotranscodingrsquo process a well-known example being Weaverrsquos remark
lsquoWhen I look at an article in Russian I say ldquoThis is really written in English but it has been
coded in some strange symbols I will now proceed to decoderdquo
This implies either that there is a one-to-one relationship between English and Russian
grammaticallexical items and their contextual meanings or that there is some pre-existent
lsquomessagersquo with an independent meaning of its own which can be presented or expounded now in
one lsquocodersquo (Russian) now in another lsquocodersquo (English) But this is to ignore the fact that each
8 While Catford explained this point in great detail in Chapter 5 Meaning and Total Translation we
cannot elaborate on it here
TRANSLATION AS CULTURAL TRANSFER
23
lsquocodersquo (ie each language carries with it its own particular meaning since meaning hellip is lsquoa
property of languagersquohellip
hellip
Our objection to lsquotranscodingrsquo or lsquotransference of meaningrsquo is not a mere terminological quibble
There are two reasons why translation theory cannot operate with the lsquotransference of meaningrsquo
idea In the first place it is a misrepresentation of the process and consequently renders the
discussion of the conditions of translation equivalence difficult in the second place it conceals
the fact that a useful distinction can be made between translation and another process which we
call transference In transference hellip there is indeed transference of meaning but this is not
translation in the usual sense (pp 41-42)
Meaning does not get transferred in translation and translation is not a process of
transcoding This comes out loud and clear in Catford Translation for him is not a
process of code-switching according to rigid mechanical rules based on one-to-one
formal correspondence between SL and TL items as Nord has alleged (1997 p 7)
nor is it a process of transcoding of pre-existent naked meaning So the Catford that
Snell-Hornby and many others have attacked turns out to be not merely a straw man
but ironically also a comrade in arms
A third important point to note about Catfordrsquos linguistic approach is that it is by
no means incompatible with the so-called cultural approach As has been shown
Catfordrsquos approach is an empirical and probabilistic one Its aim is twofold first to
find TL equivalents (in his sense) by way of comparing actual samples of SL and TL
texts with the resultant TL equivalents serving as translation rules and second to set
out the conditions for justifying TL equivalence Unlike Snell-Hornby and many other
theorists Catford never told us how to translate So in this sense his linguistic
TRANSLATION AS CULTURAL TRANSFER
24
approach can be said to be theory-free He only told us how to find translation
equivalents which is exactly what corpus linguists do nowadays A corpus might
contain TL texts produced in the light of different or even conflicting theories but
Catfordrsquos approach would still be applicable Accordingly the cultural approach
advocated by Snell-Hornby and others of a similar persuasion is not really a rival
approach and hence there is not much sense in talking about an emancipation from
the linguistic theory of translation that Catford represents
212 Vermeerrsquos View of Translation as Cross-cultural Transfer
The tenets of the cultural school as represented by Vermeer and Snell-Hornby
can be reduced to three statements
1 Translation is not simply a matter of language and it does not take place
merely between languages
2 Language is an integral part of culture and hence translation from one
language to another is a cross-cultural transfer and
3 The source text in itself does not dictate how it is to be translated what
dictates the translation is the specific purpose in question
This counters the lay view of translation described well enough by Snell-Hornby
as follows
hellip translation is simply a matter of words or individual linguistic signs which are replaced by
equivalent words signs or units in the target language The translator so it is assumed therefore
TRANSLATION AS CULTURAL TRANSFER
25
needs either simply a good command of the vocabulary in both languages involved or a good
dictionary (1992 p 2)
Such a naive static and mechanical view is as Snell-Hornby endeavoured to show
rooted in the false belief in the existence of equivalence between languages ie a
one-to-one correspondence between SL and TL items Yet her critique of such a
notion was directed not so much against lay people as against Catford and other
descriptivists such as Toury and Koller But it is really hard to see how such a view
of translation could be attributed to Catford who expressly dismissed it as fallacious
We do not want to labour this point but let us just say this Vermeer and
Snell-Hornbyrsquos vehement opposition to the linguistic approach is totally misguided
In place of the false dichotomy of word vs sense they have ushered in the false
dichotomy of transcoding vs cultural transfer As has already been shown by Catford
there is no such a thing as transcoding What then is cultural transfer
Vermeer answered the question with a metaphor
What does it mean to translate hellip Suppose you take a tree from a tropical climate to a temperate
zone Will it not need special care Will it not be considered something out of the ordinary by
whoever sees it It will never be the same as before neither in growth or in the eyes of its
observers hellip With a translation it is not much different One will have to decide before
translating whether it is to be ldquoadaptedrdquo (to a certain extent) ie ldquoassimilatedrdquo to target culture
conditions or whether it is meant to display and perhaps even stress its ldquoforeignrdquo aspect One
will have to make a choice In both cases the text will be ldquodifferentrdquo from what it was in its
ldquonormalrdquo source-culture conditions and its ldquoeffectrdquo will be different Assimilation does not
necessarily mean making a text look like an ordinary target-culture text(eme) ie making it look
TRANSLATION AS CULTURAL TRANSFER
26
ldquoas though it were not translationrdquo Assimilation need not take place on the ldquosurfacerdquo level
alone paradoxically enough assimilation on other levels can lead to an ldquoalienationrdquo
(Verfremdung) on the surface level (1995 p 39)
Translation is likened to the transplant of a tree onto foreign soil for a specific
purpose The translated text (the transplanted tree) has been adapted or assimilated to
a culture (foreign soil) different from the original (home soil) One important point to
note here is assimilation can take place on different levels the target text is not
necessarily a completely domesticated textmdashit may indeed turn out to be alien to the
target culture This is a point which has been overlooked or suppressed by Vermeerrsquos
followers who have identified Vermeerrsquos functional approach with domestication
Since the notion of skopos is an all-embracing one it is in principle able to
accommodate all kinds of approach to translation
hellip skopos theory hellip allows for transferring (or demands the transfer of) as many features of the
source-text surface-structure as possible into target culture surface-structure features in such a
way that target-culture addressees can appreciate the literariness of the translation in a way
comparablesimilarcorresponding to source-culture addressees who are able to appreciate their
source-text (1995 p 50)
[Note in the original The term ldquotransferrdquo is not strictly applicable Nothing is physically
transferred]
The passage is worth noting in two important respects The original footnote clearly
shows that Vermeer was not comfortable with the word ldquotransferrdquo It would be
interesting to see what word he would or could have used in its place ldquoTranscodingrdquo
would have definitely been ruled out as by it he meant translation which takes place
TRANSLATION AS CULTURAL TRANSFER
27
merely between languages guided by the principle of equivalence This is not a trivial
observation For ldquotranslation as cultural transferrdquo was used by him to mark a new
orientation in translation studies So it is legitimate to press the question of what he
meant by ldquocultural transferrdquo The tree transplanting metaphor cited above suggests
that in translation a text is transferred from one culture to another with the two
cultures in question remaining unchanged This is in line with the definition Vermeer
gave in his seminal paper entitled ldquoTranslation as a cultural transferrdquo (1986) However
the passage just cited implies that transcoding in the sense that purely linguistic
features of the source text are ldquocarried over tordquo9 or reproduced in the target text can
be one possible purpose of translation This seems to defeat the whole purpose of
skopos theory which asserts that ldquotranslation is not the transcoding of words or
sentences from one language to anotherrdquo (1986 p 33) A closer look at his remarks
on the ldquoequivalence postulaterdquo of Touryrsquos theory will reveal something even more
devastating for skopos theory however
hellip there is a methodological difference between Touryrsquos approach and that of skopos theory
According to the latter a lsquotransferrsquo (by any strategy) of a great number of source-text phenomena
to a target-text still depends on the skopos (purpose) of translating It is not the source-text
equivalence (or more loosely correspondence) requirement which guides the translation
procedure but the skopos eg to show target-text recipients how a source-text iswas structured
(or for some other purpose hellip) The skopos is hierarchically higher than the equivalence postulate
Such a procedure is then not retrospective (as is the case when taking the source-text structure as
the highest element in the hierarchy) but prospective in the sense that the skopos demands a full
consideration of source-text structures for a given purpose In such a case the difference between
9 ldquoCarry overrdquo was also used by Vermeer as a synonym of ldquotransferrdquo (1990 p 50)
TRANSLATION AS CULTURAL TRANSFER
28
Touryrsquos approach and that of skopos theory is one of focus in practice the result may look much
the same (Ibid p 51 Italics mine)
The passage clearly shows that Vermeer was in fact not really against the equivalence
postulate or transcoding as he expressly stated that the difference between Touryrsquos
approach and his is ldquoone of focusrdquo ie Touryrsquos focus is on the source-text
(retrospective) whereas his is on the target-text (prospective) and that both
approaches may lead to much the same target text We can thus see that the kind of
transcoding he deplored was in the final analysis transcoding without a purpose
whereas he saw transcoding with a purpose as both possible and legitimate His
opposition to the linguistic approach turns out to have been overstated
The fundamental principle of skopos theory according to Vermeer is that it
ldquostrictly regards translating from the point of view of a text functioning in a
target-culture for target-culture addressesrdquo (1990 p 50) Translation as cultural
transfer is therefore translating a text from one culture to another according to a
specific function What is transferred (understood in a figurative sense) is the text not
the culture of the text But here Vermeer simply failed to see there are situations
where ldquocultural transferrdquo means ldquothe transfer of one culture to anotherrdquo and
legislative translation is a typical case of cultural transfer in this sense
213 Snell-Hornbyrsquos View of Translation as Cultural Transfer
In line with the central arguments of the new theoretical orientation which I
have just discussed Snell-Hornby held that translation was a cultural transfer rather
TRANSLATION AS CULTURAL TRANSFER
29
than a linguistic transfer and that translation as a cultural transfer was oriented
towards the function of the target culture and also facilitated cross-cultural
communication To illustrate this point Snell-Hornby (1998 pp 94-5) cited her own
experience in India When walking along the streets of Southern India about twenty
years earlier she was repeatedly approached by local people who asked her a question
in their native language which literally means ldquoWhere are you goingrdquo in English She
was obviously puzzled by this strange question Later she found out that it was a local
form of greeting when people met in the street A mere transcoding would yield
ldquoWhere are you goingrdquo which in her view was problematic because it was likely to
cause a communication break-down She pointed out how this showed the limitations
of mere transcoding by neglecting the twin facts that language was dependent on
cultural and social norms and that translation was essentially a cross-cultural event
Instead an appropriate translation would be ldquoHow are yourdquo as it complied with the
conventions of greeting in English and thus effected a cultural transfer
The starting point of Snell-Hornbys framework is reasonable in the sense that
the pursuit of absolute equivalence or symmetry between languages is futile and it is
doubtless the case that cultural elements must been taken into account when doing
translation If her thoughts on the incident lead her merely to the above conclusion
her argument about the cultural account in translation would be sound However in
analyzing the appropriate translation for the Indian way of greeting she distinguished
two translation methods one is the mere transcoding and the other is what she called
ldquocultural transferrdquo In her view linguistic transcoding and cultural transfer are
apparently two distinct methods of translation Linguistic transcoding is reduced to
linguistic transference without any cultural account By contrast cultural transfer
indicates the rendering of source text smoothly and idiomatically such that the English
TRANSLATION AS CULTURAL TRANSFER
30
speaking reader would perceive the translation as conventional and familiar Thus the
important units of translation are seen as products of culture that emerges from their
distinctive social settings instead of strings of words or sentences or even whole texts
According to Snell-Hornby translation should be oriented towards the function of the
target text rather than submit to the prescription of the source text She remarked
The text cannot be considered as a static specimen of language (an idea still dominant in
practical translation classes) but essentially as the verbalized expression of an authorrsquos intention
as understood by the translator as reader who then recreates this whole for another readership in
another culture This dynamic process explains why hellip the perfect translation does not exist
(1988 pp 1-2)
We shall see from the above that in proposing the translator ldquorecreates this whole
for another readership in another culturerdquo Snell-Hornby holds that translation as
ldquocultural transferrdquo should conform to the cultural norms of the target language and
familiarize the source culture to the extent that target readers could identify it with
their own culture As has been shown the term ldquocultural transferrdquo is used by
Snell-Hornby as the antithesis to ldquolinguistic transcodingrdquo It is clear what she means
by ldquolinguistic transcodingrdquo a naiumlve simplistic static and mechanical manner of
translation which consists in matching SL and TL words solely by relying on a
bilingual dictionary a view of translation rooted in the false belief in the existence of
equivalence (a one-to-one correspondence) between languages However it is by no
means so clear what she means by ldquocultural transferrdquo particularly what she means by
ldquotransferrdquo ie what gets transferred in translation
TRANSLATION AS CULTURAL TRANSFER
31
She regularly stresses two points in her work First language is an integral part
of culture and also of the world Understanding a text requires an understanding of its
socio-cultural context and this applies to both the source text and the target text
Second translation is an act of communication oriented towards the function of the
target text not a mere linguistic operation prescribed by the source text These two
points seem clear enough but again what gets transferred in translation is not at all
clear
Her discussion of the translation approach of Hans G Houmlnig and Paul Kussmaul
(in Snell-Hornby 1988 pp 45-46 1990 pp 83-84) which she endorsed gives us
some idea of what she means
Houmlnig and Kussmaulrsquos starting point is the conception of the text as what they call lsquothe
verbalized part of a socio-culture (1982 58) the text is imbedded in a given situation which is
itself conditioned by its sociocultural background The translation is then dependent on its
function as a text lsquoimplantedrsquo in the target culture The basic criterion for assessing the quality of
a translation is called the lsquonecessary grade of differentiationrsquo which represents lsquothe point of
intersection between target text function and socio-cultural determinantsrsquo (1982 53)
To illustrate this they quote two sentences each naming a famous British public
school
In Parliament he fought for equality but he sent his son to Winchester
When his father died his mother couldnrsquot afford to send him to Eton any more
They then quote two extreme types of German translation
TRANSLATION AS CULTURAL TRANSFER
32
hellipseinen eigenen Sohn schickte er auf die Schule in Winchester
hellipkonnte es sich seine Mutter nicht mehr leisten ihn nach Eton zu schicken jene teure englische
Privatschule aus deren Absolventen auch heute noch ein Grossteil des politischen und
wirtschaftlichen Fuhrungsnachwuchses hervotgecht10
The first translation is under-differentiated the mere name ldquoWinchesterrdquo does not
carry the same meaning for a German reader as for an English one The second is
over-differentiated however correct the information on British public schools may be
it is superfluous to the text concerned In the first of the two sentences it is the
double-faced hypocrisy of the father (hence the exclusive elitist character of public
schools) that is stressed while the second focuses on an impoverished widowed
mother (and the expensive school fees) As the necessary grade of differentiation for
the texts in question the authors therefore suggest
Im Parlament kampfte er fur die Chancengleichheit aber seinen eigenen Sohn schickte er auf
eine der englischen Elisteschulten [elite schools]
Als sein Vater starb konnte seine Mutter es sich nicht mehr leisten ihn auf eine der teuren
Privatschulen [private schools] zu schicken (1990 pp 83-84)
Here Snell-Hornby agrees with Houmlnig and Kussmaulrsquos approach which rejects
the orthodox demand to preserve as much of the original as possible so as to achieve
equivalence in translation Preserving ldquoWinchesterrdquo in the German translation is an
under-translation because for German readers the name ldquoWinchesterrdquo would just be
10 Snell-Hornbyrsquos translation ldquohellipthat expensive English public school which even today produces
many of the future leaders in politics and managementrdquo
TRANSLATION AS CULTURAL TRANSFER
33
the name of a city perhaps even unable to call up the notion of there being a school
there let alone Winchester College the oldest public school in England On the other
hand filling in too much background information is an over-translation distracting
readers from the impoverished condition of the widowed mother The suggested
translations in which ldquoWinchesterrdquo is translated as ldquoone of the elite schools and
ldquoEtonrdquo as ldquoone of the expensive private schoolsrdquo give as much information as
necessary for the functions of the two English sentences to allow German readers to
understand the socio-cultural meaning of ldquoWinchesterrdquo and ldquoEtonrdquo So we are not
translating ldquowordsrdquo but ldquowords-in-textrdquo (1988 p 45) What gets transferred in
translation should be the socio-cultural meaning of words not their surface meaning
of words
In a paper entitled ldquoTranslation as a Cultural Shock Diagnosis and Therapyrdquo
(1992) Snell-Hornby describes how erroneous mechanical matching of equivalents
in translation can give rise to interlingual miscommunication and cultural shock An
amusing example reads
Nice German business man 36 wants to become a black woman Every letter will be answered
(p 2)
The shock obviously unintended is due to matching the German ldquobekommenrdquo (=
getfind) to the English ldquobecomerdquo Examples like this abound11
11 The English translation of a sign in China reads ldquoCarefully fall into the riverrdquo The Chinese
original reads ldquo小心堕河rdquo
TRANSLATION AS CULTURAL TRANSFER
34
On the syntactic level following the conventions of the source text would give
rise to stiltedness in the target text Very often equivalent syntactic forms are not
acceptable in the target language (1990 pp 6-7) The following are English
translations of a hotel advertisement in German The one on the left is the original
translation which stays close to German syntax and the one on the right is a rewriting
according to English advertising conventions
To enjoy Viennarsquos unique atmosphere Come and enjoy the unique
atmosphere
In one of the cityrsquos guesthouses of Viennamdashand stay in one of
the cityrsquos finest Pensionen
University City hall Parliament A few minutesrsquo walk from the
University
Burgtheatre and Vortivkirche City Hall Burgtheatre and
Vortivkirche
In the immediate vicinity
hellip hellip
The upshot of her discussion is this ldquoTranslation is not a merely a matter of
language but primarily one of knowledge of which language forms only a partrdquo (p
7) And translation should free itself from the inexorable grip of words and avoid
inflicting cultural shocks by conforming to the linguistic and cultural norms of the
target language Let us return for a moment to the questions arising from the two
approaches to translating the Indian greeting examined by Snell-Hornby namely
linguistic transcoding and cultural transfer For her the way to effect cultural transfer
is to match the original Indian greetings to an idiomatic expression in English In this
TRANSLATION AS CULTURAL TRANSFER
35
way the translation actually functions the same way as the original does but may fail
to preserve the original patterns and to reflect the real meaning expressed in the
original text In other words the cultural transfer that Snell-Hornby advocates
involves conformity with the conventions of the target culture In addition
Snell-Hornby only recognizes the importance of the source culture in the
understanding of source text Instead she places great emphasis on the target culture
since she holds that the translator should be oriented towards the target culture
producing translation that is representative of the culture of target language instead of
the culture of the source language Evidently translation as cultural transfer in this
sense involves inadequate transference of the source culture Cultural transfer is in the
final analysis ldquocommunication across culturesrdquo (p 7) very similar to what Newmark
called ldquocommunicative translationrdquo
214 Domestication vs Foreignization
In maintaining translation as cultural transfer Snell-Hornby is in fact adopting a
target-culture-oriented position For her the source culture is important only for
understanding the source text but the target culture in fact plays a far more vital role
since it shapes the target text which is what actually facilitates cross-cultural
communication Thus viewed translation as cultural transfer is in effect
cross-linguistic communication at the cultural level a mapping of the source culture
onto the target culture in other words a functional assimilation of the source culture
into the target culture
TRANSLATION AS CULTURAL TRANSFER
36
As is well known such an approach is contrary to the one advocated by
Schleiermacher For him there are only two options for the ldquotruerdquo translator Either to
move the reader towards the writer or to move the author towards the writer
(Robinson 1997 p229) He opted for the first remarking
To achieve this the translator must adopt an lsquoalienatingrsquo (as opposed to lsquonaturalizingrsquo) method
of translation orienting himself or herself by the language and content of the ST He or she must
valorize the foreign and transfer that into the TL (quoted in Munday 2001 p 28)
Adopting Schliermacherrsquos categorization of these two translation strategies
namely ldquoalienatingrdquo and ldquonaturalizingrdquo Venuti (1992) argues that the former strategy
could exert a positive influence on the target culture while the latter might inhibit
innovation on the part of the target language and culture Having examined past
examples of the decisive role of domestication in forming certain foreign cultural
identities in the target culture he had come to realize that translators had tended to
achieve the goal of communication by naturalizing foreign texts in order to conform
to domestic conventions However the domestication of a foreign culture could result
in misrepresentations of that culture Worse still it could paralyze the ability and
willingness of the target reader to accepting new elements from a foreign culture
Venuti came to the conclusion that although translation is bound to be domestication
to some degree foreignization ldquopromises a greater openness to cultural differencesrdquo
(p 23) Like Schliermacher he subscribed to foreignization which he believed was
the proper way to effect the transfer of the source culture as it allowed the target
language to be influenced and amplified by the source language and open the way to
novelty and innovation in the target language Thus translation as ldquocultural transferrdquo
leaves a choice open to each individual translator Either she chooses foreignization
TRANSLATION AS CULTURAL TRANSFER
37
preserving the alien elements in the target text or she chooses domestication ironing
these out to make the target text readily comprehensible to the reader The choice in
practice depends on the particular skopos that the translator intends
It is crucially important to understand the opposed notions of ldquodomesticationrdquo
and ldquoforeignizationrdquo very clearly if we wish to understand precisely what is involved
in effecting cultural transfer Whether a translation exhibits domestication or
foreignization can only be determined where the context reveals cultural asymmetry
and is examined as such12 In other words it is only when directly confronted with the
problem of translating a culture-specific item that the translator has to make a choice
between the two strategies A common misunderstanding is that the translator is
always engaged in make such a choice even when translating items that are not
culture-specific Consider the translation of the two English terms ldquoInternetrdquo and
ldquoSarsrdquo into Chinese For each term we can have at least two translations yinte wang
(英特網) and hulian wang (互聯網) for ldquoInternetrdquo shashi (沙士) and fei dianxing
xing feiyan (非典型肺炎) for ldquoSarsrdquo It is interesting to note that the linguistic
formation of the translated terms yinte wang (英特網) and shashi (沙士) may seem
ldquoforeignrdquo to the Chinese reader and hence are considered as ldquoforeignizedrdquo terms
However both ldquoInternetrdquo and ldquoSarsrdquo are terms which represent non-culture-specific
concepts ldquoyinte wang (英特網) and shashi (沙士) differ from hulian wang (互聯網)
and fei dianxing xing feiyan (非典型肺炎) only in that they are transliterations rather
12 In an attempt to define translation strategy Kwiecinski (2001) provided a rather comprehensive
definitionldquohellip translation strategy hellip may be definedhellipas a textually manifest norm-governed
intersubjectively verifiable global choice of the degree in which to subscribe to source-culture or
target-culture concepts norms and conventionrdquo (p 120) Despite the complicated modification of the
word ldquochoicerdquo one thing we could see clearly is that translation strategy always involves a choice in
relation to culture-specific elements
TRANSLATION AS CULTURAL TRANSFER
38
than semantic translations a difference solely in translation technique The question
of whether this is foreignization simply does not arise here Likewise hulian wang
(互聯網) and fei dianxing xing feiyan (非典型肺炎) though readily comprehensible
in their linguistic form are not cases of domestication because no foreign culture is
involved here Put differently whether a translation is a case of domestication or
foreignization cannot be determined by the naturalness or foreignness of its linguistic
form alone
So what do we actually do as translators when we come across culture-specific
items If we choose to domesticate we just need to find an item in the target language
as a linguistic substitute leaving the target language as it is For example translating
the English idiom ldquothere is no smoke without firerdquo into wufeng buqi lang (無風不起
浪) (no waves without wind) actually replaces the English idiom with a similar one in
Chinese both mean that there must be a reason for the result No linguistic and
conceptual adjustment on the part of the target language is required Any peculiarity
in this way of expressing causality in English is no longer discernible in the
translation ie the cultural meaning of the source language has been domesticated or
naturalized
In contrast to foreignize means to import the source culture into the target
culture This can be achieved in two ways One is to foreignize at both the linguistic
and conceptual levels ie calling on the target language to make both linguistic and
conceptual adjustments Take the example of the English translation of the Chinese
term li (禮) one of the key concepts in Confucianism When it is translated as li (禮)
using the technique of transliteration (direct borrowing) it evidently introduces to the
target reader a new linguistic form Adjustment also needs to be made on the
TRANSLATION AS CULTURAL TRANSFER
39
conceptual level so that the English reader can understand the cultural meaning of the
coined English term li in the light of Confucianism The other way is to foreignize
only at the conceptual level ie without involving any linguistic adjustment In the
same example when li (禮) is translated as ldquomoralityrdquo ldquoproprietyrdquo or ldquoritualrdquo the
translator uses an existing English word as its equivalent However when the
translator makes it clear to the English reader that ldquomoralityrdquo ldquoproprietyrdquo or ldquoritualrdquo
should not be understood in their usual senses in English but should be re-defined and
understood with reference to Confucianism an intention to foreignize is revealed We
can see that in either case conceptual adjustment is a must while linguistic adjustment
is not really essential However there are as will be shown cases when where a
particular linguistic structure in the source text may embody the culture of the source
language In such cases the translator has to preserve the linguistic features of the
source text and linguistic and conceptual adjustments of the target language are
required In a nutshell cultural transfer as foreignization requires the translator to
import the culture-specific elements into the target culture regardless of whether the
foreignness is reflected in the linguistic form of their translations The discussion
above only serves as a simplified model for discussing the theoretical framework of
effecting cultural transfer we will introduce It will be elaborated further in the next
section
It is now clear that ldquocultural transferrdquo when employed to characterize translation
as a socio-cultural activity rather than a mere act of linguistic recoding has in fact
been understood in two diametrically opposite senses On the one hand it has been
taken to mean the mapping of the cultural elements of the source text onto their
functional equivalents in the culture of the target text an approach which aims to
facilitate cross-cultural communication without making any linguistic or conceptual
TRANSLATION AS CULTURAL TRANSFER
40
adjustment on the part of the target text by way of domestication On the other hand
the term ldquocultural transferrdquo has also been taken to mean the importation of the source
culture into the target culture an approach which requires linguistic and conceptual
adjustments on the part of the target language
22 Legal Translation as Cultural Transfer
221 Legal Transplant and Legal Translation
The tree transplanting metaphor that Vermeer uses to illuminate translation
studies has a close counterpart in studies of comparative law namely legal transplant
which according to Alan Watson (1974 p 21) is ldquothe moving of a rule or a system
of law from one country to another or from one people to anotherrdquo And interestingly
enough just as there is a perennial debate in translation studies over the translatability
of law there is one in comparative law over the transplantability or transferability of
law
Legrand a strong opponent of the whole idea of legal transplant contends that
the word ldquotransplantrdquo itself already implies its impossibility
To ldquotransplantrdquo according to the Oxford English Dictionary is ldquoto remove and repositionrdquo ldquoto
convey or remove elsewhererdquo ldquoto transport to another country or place of residencerdquo
ldquoTransplantrdquo then implies displacement For the lawyerrsquos purposes the transfer is one that
occurs across jurisdictions there is something in a given jurisdiction that is not native to it and
that has been brought there from elsewhere What then is being displaced (1997 p 111)
TRANSLATION AS CULTURAL TRANSFER
41
For Legrand law is not simply ldquobare propositional statementsrdquo which can travel
across jurisdictions and can be understood without regard to ldquohistorical factors and
habits of thoughtsrdquo (Ibid p 113) Instead propositional statements work together with
their invested meaning to jointly constitute ldquorulesrdquo (Ibid pp 116-17) But because a
legal rule is culture-specific it is bound to be understood differently when integrated
into another legal system (Ibid p 117) Thus ldquoas the understanding of a rule changes
the meaning of the rule changes And as the meaning of the rule changes the rule
itself changesrdquo (Ibid p 117) Legrand remarks
In the words of Eva Hoffman lsquo[i]n order to transport a single word without distortion one would
have to transport the entire language around itrsquo13 Indeed lsquo[i]n order to translate a language or
a text without changing its meaning one would have to transport its audience as wellrsquo14 hellip
So the transplant does not in effect happen a key feature of the rulemdashits meaningmdashstays
behind so that the rule that was lsquotherersquo in effect is not itself displaced over lsquoherersquo hellip Meaning
simply does not lend itself to transplantation There always remains an irreducible element of
autochthony constraining the epistemological receptivity to the incorporation of a rule from
another jurisdiction15 therefore limiting the possibility of effective legal transplantation itself
The borrowed form of words thus rapidly finds itself indigenized on account of the host culturersquos
inherent integrative capacity (Ibid p 118)
hellip
[So] [a]t best what can be displaced from one jurisdiction to another is literally a meaningless
form of words To claim more is to claim too much In any meaning-ful sense of the term lsquolegal
transplantrsquo therefore cannot happen No rule in the borrowing jurisdiction can have any 13 Original note 16 Eva Hoffman Lost in Translation (Minerva 1991) at 175 14 Original note 17 Ibid at 272 15 Original note23 Eg FSC Northrop lsquoThe Comparative Philosophy of Lawrsquo 45 Cornell Law Quarterly (1960) 617 at 657 lsquoin introducing foreign legal and political norms into any society those norms will become effective and take root only if they incorporate also a part at least of the norms and philosophy of the native societyrsquo
TRANSLATION AS CULTURAL TRANSFER
42
significance as regards the rule in the jurisdiction from which it is borrowed This is because as it
crosses boundaries the original rule necessarily undergoes a change that affects it qua rule The
disjunction between the bare propositional statement and its meaning thus prevents the
displacement of the rule itself (Ibid p 120)
Legrandrsquos argument is simply this Anything culture-specific cannot be transplanted
from one culture to another without change Law as underpinned by its rules is
culture-specific Therefore law cannot be transplanted from culture jurisdiction to
another without change The impossibility of legal transplant also entails the
untranslatability of law A text of law when translated from one culture jurisdiction
to another will no longer preserve the meaning of the original text ie it is not the
text of the same law just as in Vermeerrsquos botanical metaphor the text was not be the
same as before16
In response to Legrandrsquos criticism Watson (2006) makes two points which are
relevant to the present study and worth discussing at some length First taken to the
extreme no word means exactly the same even for people who speak the same
language in the same country ldquoBreadrdquo for a poor village housewife does not have the
same meaning as for the wealthy Parisian businessmen (p 2) The same is true for law
within the same country Watson gives the following example
16 In an attempt to avoid the difficulties inherent in the transplant metaphor Langer (2004 pp 32-35)
used translation as a metaphor to explain the circulation of legal ideas rules practice and institutions
First it retains the comparative dimension as it distinguishes between the source text and the target text
of the law Secondly it can explain the loss of meaning Thirdly it can explain the transformation
which the source legal system undergoes as a result of its exchange with the target legal system
Finally it can explain ldquothe transformation which the linguistic and social practices of the target legal
system undergo under the influence of the translated text While these are valid points they cannot
resolve the transplantability problem because the translatability of law is the question at issue here
TRANSLATION AS CULTURAL TRANSFER
43
The possession of cocaine is hellip illegal That means one thing to the petty dealer who sees it as
his sole hope of escaping from his ghetto quite another to the recreational user quite another to
non criminals who live in the same street as the gangs quite another to law enforcement officers
It is banal to notice that the same legal rule operates differently in two countries it operates to
different effect even within one (p 2)
The point he makes here is a valid one Since we cannot say that a legal rule always
remains the ldquosamerdquo within a single jurisdiction we are even less entitled to speak of
its remaining the it is ldquosamerdquo transplanted from one jurisdiction to another
Secondly legal transplant does not preclude different interpretations of the
transplanted law Watson remarks
hellip where a written statutory law is the same within two countries its judicial interpretation may
well differ because of tradition and ways of legal thinking hellip But it is no rare thing for
academics to notice and pass on to practitioners the nature of these differences The very fact
that the statutory rule is the same may well cause legal thinking on it in different countries to
converge
I think I have no need to stress that I have long held that a transplanted rule is not the same
thing as it was in its previous home17 Nor need I stress my long-held view that it is rulesmdashnot
just statutory rulesmdashinstitutions legal concepts and structures that are borrowed not the lsquospiritrsquo
of a legal system Rules institutions concepts and structures might almost be termed tangibles
can easily be reduced to writing and are accessible (pp 2-3)
17Original note 4 See most recently Alan Watson La Out of Context Athens GA 2000 p 1
TRANSLATION AS CULTURAL TRANSFER
44
Watson then goes on to cite from legal history examples of legal transplants on a
grand scale (pp 4-8) which we need not consider for our present purpose The point
that needs stressing is that even though the transplanted law is likely to be given a
different interpretation recognition of the difference may still lead to convergence
Law is of course culture-specific Yet a good part of it is embodied in language It is
through translation that the law of a country is made accessible to other cultures And
as history has shown translation has been a major channel of cultural transfer
However there are many who while conceding that the aspects of law
mentioned by Watson are transplantable through translation the cultural significance
of law is not For instance Hiller contended
During the colonial period language from a British statute was imported into many of its
colonies18 whereby it was a crime for any person ldquobeing armed and having his face
blackened hellip (to) appear in any forest hellip or in any high roadrdquo under a wide variety of stated
circumstances The offence was ostensibly designed to deal with poachers and similar
wrongdoers Arming andor blackening onersquos face was enough to constitute a capital crime in
Britain19 The obvious cultural significance would have been lost in translation The language
would have been rather absurd in an African or Asian setting (1978 pp 157-58)
18 Original note 16 For example the Nigerian Criminal Code Cap 43 sec 417 (e) makes it a felony
for a person to have ldquohis face blackened with intent to commit a felonyrdquo Similarly see Kenya
Penal Code Cap 63 Sec 308 (3) (a) and Uganda Penal Code Cap 106 Sec 285 (1) (e) 19 Original note 17 George I c 22 (emphasis added) The statute enacted in 1713 became known as
ldquoThe Waltham Black Actrdquo simply as ldquoThe Black Actrdquo For a fascinating discussion of the Act see E
P Thompson Whigs and Hunters The Origin of the Black Act New York Pantheon Books 1975)
The Act is reproduced in full in Appendix I of the book
TRANSLATION AS CULTURAL TRANSFER
45
But what Hiller failed to see here is it is not the language that is absurd it is the
law (the ldquoBlack Actrdquo as it is called) When translated into an African or Asian
language the legal meaning of that law is not lostmdashthe person who understands its
translated version knows exactly what it prohibits but finds it absurd as he lives in a
country where hunting is a main source of food Indeed he does not understand why
there is such a law in his country If he is educated enough he may find out the reason
from a book on the history of English law Yet he may still not understand why such a
law is imposed on his people There may be a whole lot of whyrsquos he asks But one
thing he understands is If he does not want to get into trouble with the law he must
not blacken his face and appear in a forest or on a highway with a weapon If the
translation makes him understand that it has done what it is supposed to do
The Black Act was of course culture-specific enacted to address a particular
problem in England But this historical fact does not in any way render it
untranslatable into an African or Asian language Suppose its Chinese translation
reads ldquo任何人不得塗黑臉孔 攜帶武器出現在樹林中或公路上rdquo The translation
says what the Act says The ldquocultural significancerdquo which Hiller did not see in the
translationmdashlost in the translationmdashis not part of what the Act says This is a point
Hiller seems to concede But he goes on to say
hellip [T]ranslationmdashno matter how accuratemdashis not an adequate solution to the problem of
transferability of law The reason lies in the facts that both law and languages are carriers of
culture and that each culture has its own integrity and internal consistency20 These are the
20 Original note 20 ldquoWe may figure the task of the judge if we please the task of a translator the
reading of signs and symbols given from without None the less we will not set men to such a task
unless they have absorbed the spirit and have filled themselves with a love of the language they must
TRANSLATION AS CULTURAL TRANSFER
46
reasons not only why an imported law or institution will not work in the importing country the
way it did in the exporting country21 but more importantly why the importation of foreign
elements into a culture will lsquoskewrsquo the receiving culture in profound ways hellip (pp 158-59)
The successful transplant of a foreign law is of course not solely dependent on an
accurate translation Whether a foreign law can work in the importing culture or not is
a socio-cultural problem not a translation problem Translation can only do what it
can do It can only render a foreign law comprehensible to people of the importing
culture So we can well agree with Hiller that translation ldquois not an adequate solution
to the problem of transferability of lawrdquo Here ldquotransferabilityrdquo means ldquosuccessful
transplantrdquo not ldquosuccessful communicationrdquo While successful transplant requires
successful communication as a pre-condition translation alone cannot transfer the
socio-cultural conditions of a foreign law to the importing culture and makes it work
there The kind of transfer translation effects is linguistic and conceptual not
substantive
222 Translating the Common Law into Chinese as Cultural Transfer
When Hong Kong became a British colony in 1842 the British brought along a
whole lot of ldquoculture-specificrdquo things tangible and intangible of which the common readrdquo B N Cardoro The Notes of the Judicial Process (New Haven Yale University Press 1923) p
174 21 Bob Seldman stresses for example why we cannot assume that every properly socialized person will
know the law if that law is a product of a foreign system On ignorantia juris generally see R B
Seldman supra note 4 at 689 He says by way of illustration ldquoHowever well the system for the
promulgation of laws may work in England it may not and does not work adequately in Africardquo Id at
697
TRANSLATION AS CULTURAL TRANSFER
47
law was one Surprisingly enough it did not seem to occur to Legrand or Watson that
legal transplant as in the case of Hong Kong could pre-empt many of the questions
that triggered their long debate First the transplant was not from one jurisdiction to
anothermdashit was carried out within the same common law jurisdiction as Hong Kong
became a common law jurisdiction the moment the British flag was hoisted (or legally
even earlier) Second for nearly a century and a half the law was in the same
language as its home state namely English Third the law was administered and
practised by professionals from its home state or from other common law
jurisdictions or from the local community who spoke and were trained in the same
language of the law In a word except for some adaptations in areas such as marriage
and succession the common law was transplanted to Hong Kong en bloc Thus the
legal culture however estranged it was from the majority of citizens who were
Chinese-speaking was unmistakably a common law culture
The translation of the common law into Chinese was therefore by no means
carried out in an alien culture from the outset Rather it was carried out in the
transplanted culture of the common law There was no sharp distinction between
source and target cultures in the first place
Under the bilingual legislation system of Hong Kong the English text and its
Chinese counterpart must fulfill two conditions First they must have equal legal
status Second they must convey the same legal meaning The first condition must be
and was in fact met by legislative measures22 However how the second condition
can be met is still not clear to many translation scholars and practising law translators
22 The Interpretation and General Clauses Ordinance (Cap 1) was amended in 1987 to accord both
language texts of the law equal legal status
TRANSLATION AS CULTURAL TRANSFER
48
Some like Snell-Hornby have contended that equivalence in meaning is a chimera
an illusion or an unattainable goal Thinking along the line of Vermeerrsquos skopos
theory we have a definitive purpose here whatever we do and however we do it the
Chinese text must convey the same legal meaning as the English text in other words
the two texts must be equivalent in legal meaning If equivalence were indeed an
illusion then no multilingual legal system would be viable
Let us now re-examine the goal of legal translation now that we have a clearer
notion of cultural transfer in mind Legal translation is certainly among the varieties
of translations where the translator is subject to stringent semantic constraints at all
levels due to the peculiar features of the language of English law on the one hand and
the culturally mediated nature of legal discourse on the other To maintain the
authenticity of the law the cultural concepts which are specific to the original legal
system could not be replaced by functionally equivalent concepts of the Chinese
language Thus cultural transfer by way of domestication is not appropriate in legal
translation The authoritative status of legislation dictates that the goal of legislative
translation is to reproduce a legal text in the target language which conveys the same
legal meaning as the source text It requires the legal translator to adjust the target
language in such a way that the legal meaning of the source text could be expressed
by the target language Cultural transfer as foreignization is best exemplified in the
translation of a particular legal system from one language to another in the present
case the translation of the common law into Chinese
While Hong Kong ceased to be a British colony on July 1 1997 it has been
allowed to retain English law under Chinarsquos policy of ldquoOne Country Two Systemsrdquo
The laws previously in force namely the common law rules of equity ordinances
TRANSLATION AS CULTURAL TRANSFER
49
subordinate legislation and customary law together with the use of English as an
official language have been preserved under the Basic Law of the Hong Kong
Administrative Region
As has been noted the authoritative status of legal texts requires that the goal of
legal translation is to reproduce a legal text in the target language which has the same
legal meaning as the source text Regarding this Roebuck and Sin (1993) defined the
goal of translating the common law into Chinese 23
In attempting to create in Chinese an authentic version of a Common Law rule or principle it
is essential that the Chinese express exactly the same message as the original rule in English
insofar as its meaning is prescriptive (p 193)
23 Sin (1992) set out some basic conditions for the semantic equivalence in translating the Common
Law into Chinese in terms of bilingual legislation
All discussion about semantic equivalence will become futile if we do not focus on the aspect or
aspects of meaning relevant to a particular purpose So we can now define semantic equivalence
between two legal sentences in the following way
(1) Semantic equivalence = sameness in meaning with reference to the relevant
aspect(s)
(2) A sentence S in Language L is = S and Srsquo have the same meaning with reference to the
semantically equivalent to a relevant aspect(s) and S and Srsquo have the same
sentence Srsquo in Language L reference scheme
(3) The legal meaning of a sentence S = The prescriptive value of S
(4) A sentence C of the Chinese version = C and E have the same prescriptive value ie they
of the Common Law has the same prescribe the same behavior under the same
legal meaning as a sentence E of the behavior under the same circumstances and
English version of the Common Law conditions
(5) A sentence C in the Chinese version of the law is semantically equivalent to a sentence E in
the English version if and only if whatever interpretation given to E by the court is given to C (pp
96-99)
TRANSLATION AS CULTURAL TRANSFER
50
Sin (1998) pointedly voices the dilemma that the legal translator faced in seeking to
achieve such a goal
The tension between the translatorrsquos paramount duty to represent the law with
uncompromising accuracy on the one hand and the strong desire of the public to have the law
communicated to them in clear language on the other was deeply felt hellip It is a perennial
tension between the polarity of the two extreme approaches to translation characterized by
Schleiermacher (181342) ldquoeither the translator leaves the writer alone as much as possible
and moves the reader toward the writer or he leaves the reader alone as much as possible and
moves the writer toward the readerrdquo (p203)
Thus the inherent difficulties of the translation of the common law into Chinese
present a highly relevant case for our discussion of cultural transfer as foreignization
As a matter of fact cultural transfer as foreignization is not a novel idea in the
history of translation in China The translation of Buddhist scriptures is a much cited
paradigm of foreignization Although Buddhism became a popular religion in China
it originated in India and was unknown to the Chinese before the middle of first
century The translation of Buddhist scriptures into Chinese began in the Han dynasty
Many Buddhist concepts were new to the Chinese and there were no Chinese terms
expressing Buddhist concepts Xuan Zhuang (玄奘) the most influential figure in the
translation of Buddhist scriptures developed important translation techniques like
amplification omission borrowing and transliteration all effective methods to
introduce Buddhist foreign concepts into Chinese 24 Linguistic adjustments for 24 Xuanzhuangrsquos theory of the Five Untranslatables (五種不翻) or five instances where one should
transliterate (1) Secrets tuoluoni 陀羅尼 a Sanskrit curse (2) Polysemy baojia 薄伽 for a Sanskrit
word that has 6 meanings comfortable flourishing dignity name lucky esteemed (3) None in China
TRANSLATION AS CULTURAL TRANSFER
51
conceptual assimilation were made and with the gradual integration of the translated
texts into the Chinese language Buddhist concepts have now become an inseparable
part of Chinese culture This would not have happened if the domestication approach
had been adopted for the obvious reason that domestication would have turned
foreign Buddhist concepts into indigenous Chinese ones leaving Chinese culture
intact without incorporating Buddhism Examples of foreignization abound in the
history of translation not only in China but also in other parts of the world Whenever
a culture is transferred from one language to another there is always a need for
conceptual adjustment which invariably results in the foreignization of the importing
language The translation of the common law into Chinese is simply one such case
223 Metalinguistic Devices and Cultural Transfer in Legal Translation
As has been noted the primary aim of legal translation in the context of bilingual
and multilingual legislation is to prepare different language versions of one and the
same law This means that they must convey the same legal meaning Thus semantic
equivalence is presupposed by all bilingual and multilingual legislation systems
The term ldquoequivalencerdquo has been used in the literature to define successful
translation or to describe the ideal result of translation 25 and the concept of
yanfu tree 閻浮樹 a kind of tree that does not grow in China (4) Deference to the past Anouputi (阿
耨菩提) for a special kind of knowledge This transliteration is an established usage (5) To inspire
respect and righteousness banruo 般 若 (Prajna) instead of ldquowisdomrdquo ( 智 慧 )
(httpenwikipediaorgwikiChinese_Translation_Theory accessed on May 5th 2007)
25 Various definitions of translation given by translation theorists based on the notion of
ldquoequivalencerdquo are as below
TRANSLATION AS CULTURAL TRANSFER
52
equivalence has been variously defined in terms of functional equivalence conceptual
equivalence semantic equivalence formal equivalence dynamic equivalence lexical
equivalence syntactic equivalence textual equivalence and pragmatic equivalence
Since legal translation is primarily concerned with the translation of legal concepts it
is ldquoconceptual equivalencerdquo or ldquosemantic equivalencerdquo (sameness in legal meaning)
that we have to achieve Conceptual equivalence requires that different language
versions of the law must convey the same legal concept(s) in question Doubts have
been raised as to whether conceptual or semantic equivalence can be achieved If it
could be shown that semantic equivalence cannot be achieved then all bilingual and
multilingual legislation systems would be groundless Thus it is of paramount
importance in legal translation that semantic equivalence can be shown to be possible
Language can be viewed as a system of symbols codes or signs As is well
known Saussurersquos dualism of the signifier (sound image or the word) and the
signified (concept) was developed by Peirce by way of a triadic relationship of the
sign and subsequently by Ogden and Richards by way of the semantic triangle26
According to the semantic triangle words are the means of representing concepts in a
Translation may be defined as follows the replacement of textual material in one language (SL)
by equivalent material in another language (TL) (Catford 1965 p20)
Translating consists in reproducing in the receptor language the closest natural equivalent of the
source-language message (Nida and Taber 1969 p12)
[Translation] leads from a source-language text to a target-language text which is as close an
equivalent as possible and presupposes an understanding of the content and style of the original
(Wilss 1982 p62) 26 The Semantic Triangle is a model showing the relationship between the words the concepts and the
referents that words represent The semantic triangle by adding ldquoreferentrdquo to Saussurersquos dualism of
word and concept contains three elements (a) symbol (signifier)mdashword being perceived (b) reference
(signified)mdashthe concept of what being perceived (c) referent (object)mdashthought or thing being
perceived
TRANSLATION AS CULTURAL TRANSFER
53
language no matter whether such a concept is directly coupled with a referent in
reality or not In other words any word has a referent in reality however indirectly
and all concepts can be described by their manifestations in reality If a word refers to
a certain object directly perceivable in reality then we have a typical case of the
semantic triangle of word concept and referent If a word denotes an abstract concept
which has no direct referent in the physical world the referent in the semantic triangle
may not be directly perceivable in reality but still can be explained by means of
observable objects
Similarly the referents of legal concepts can be directly or indirectly described
by their manifestations in reality This is especially true due to the nature of the law
as Sin (1992) points out
Law is a set of rules which prescribe and regulate human behaviour Legal systems differ only
in the content but not in the nature of such rules hellip One important property of human behavior
is that it is publicly observable Accordingly all legal systems can be understood in the light
of human behavior observable in identifiable circumstances and conditions hellip Human
behaviour as well as the circumstances and conditions in which it is observed can be
described with sufficient precision in any language (p 95)
In legal translation the translated version should prescribe the same behaviour as
does the original version ldquonot only by virtue of its legal authority but also by virtue of
its legal meaningrdquo (Sin 1992 p 95) The translated version can acquire the same
legal meaning as the original version only when the legal meaning of the translated
version is construed in the light of the semantic reference scheme of the original
TRANSLATION AS CULTURAL TRANSFER
54
version Sin (1992) goes on to analyze the goal of legal translation in terms of
semantic equivalence
although no two texts in different languages are identical in all aspects of meaning semantic
equivalence hellip can still exist between them if they are compared with reference to the same
aspect of meaning hellip (and) should be defined in terms of sameness in legal meaning which is
evidently the most relevant aspect of meaning they should have in common (p 96)
One may still ask In what way can semantic equivalence be achieved in
translation when the languages in question do not contain concepts that are exactly the
same or when the meanings or concepts of the source language which we generally
refer to as cultural concepts are different from or even absent in the target language
The answer to this question can be found in Feyerabendrsquos (1987) insightful
observation on Evans-Pritchardrsquos translation of the Azande language When
translating the Azande word ldquombismordquo the translator decided to translate it as ldquosoulrdquo
in English but this is not the end of it The translator added that ldquosoulrdquo in English
implies life and consciousness while ldquombismordquo in Azande covers a collection of
public or ldquoobjectiverdquo events The significance of the translatorrsquos note is fourfold First
it draws attention to the fact that the use of the word ldquosoulrdquo in itself constitutes a
problem Second it makes the word ldquosoulrdquo more suitable for expressing what Azande
people have in mind Third it redefines an English notion to accommodate elements of
a new concept Fourth it effects conceptual change ie cultural transfer at the
metalinguistic level (pp 267-68) Feyerabend sums up all these points in a well
formulated general principle of translation ldquoSuccessful translations always change the
medium in which they occurrdquo (p 266) The importance of this principle can never be
overstated for it shows that any successful transfer of culture must change the
TRANSLATION AS CULTURAL TRANSFER
55
importing language and that such transfers must be effected at the metalinguistic
level
The concept of metalanguage is not new in translation studies 27 Before
Feyerabend Roman Jakobson had pointed out that the metalinguistic function was
one of the major functions of language He noted
A faculty of speaking a given language implies a faculty of talking about this language Such a
lsquometa-linguisticrsquo operation permits revision and redefinition of the vocabulary used cognitive
experience and its classification is conveyable in any existing language Whenever there is
deficiency terminology may be qualified and amplified by loanwords or loan-translations
neologisms or semantic shifts and finally by circumlocutions (Quoted in Chesterman 1989 p
56)
As can be seen even if the concept a certain word designates exists in one
language but not in another the referent (direct or indirect) the word and concept
stand for can always be replaced by a word in another language by way of linguistic
adjustment28 in the form of a loan word a descriptive phrase or a newly coined word
In the case of translation the various metalinguistic devices adopted by the translator
27 Gombert (1992 p 1) discussed the definition of the term metalanguage
In a more general sense the word metalanguage is used to refer to the language where natural or
formalized (as in logic) which is itself used to speak of a language More precisely as
Benveniste (1974) emphasizes this word refers to a language whose sole function is to describe
a language 28 In this study we use the concept of ldquoformrdquo only in the sense of ldquolinguistic formrdquo that is as the form
of a language sign in opposition to its meaning As meaning is the property of a language which is
manifested through language and embodied in language For any existing language sign there are two
sides of it the form and the meaning of it
TRANSLATION AS CULTURAL TRANSFER
56
are often explicitly stated in hisher explanatory notes And it is at the metalinguistic
level that conceptual semantic equivalence is achieved A word in the target
language is defined as the equivalent for its counterpart in the source language29 That
is to say two different signs are made to denote one and the same concept
Thus understood foreignization is simply a metalinguistic operation whereby
cultural transfer is effected In this study conceptual semantic equivalence is not
understood as the one-to-one correspondence between languages which is absent as
languages stand but as a semantic relationship at the metalinguistic level Put simply
conceptual semantic equivalence is not found but created It results from a most
common-or-garden metalinguistic operationmdashmaking two things stand for one and
the same concept It should now be clear how different language texts produced by
translation can convey the same legal meaningmdashthey are simply made to do so
29 In trying to solve the problem of translation equivalence Neubert postulates that from the point of
view of a theory of texts translation equivalence must be considered a semiotic category comprising a
semantic syntactic and pragmatic component following Pierces categories These components are
arranged in a hierarchical relationship where semantic equivalence takes priority over syntactic
equivalence and pragmatic equivalence conditioning and modifying both the other elements
Chapter 3
The Concept of Legal Culture in Legal Translation
31 Previous Studies of Legal Culture
311 Law and Culture
Since cultural transfer as foreignization is best exemplified in legal translation it
will be helpful here to explore the concept of legal culture with practical reference to
the translation of the common law into Chinese The study is not confined to the
complete comprehension of a legal discourse which contains unstated legal
conventions (cultures) embedded deep in the linguistic form It concerns itself more
with how unstated legal elements can be transferred in legal translation If legal
culture is taken to mean culture in relation to law then gaining insight into the
concept of legal culture will enable us to understand the relation between culture and
law
The concept of culture is plagued with definitional problems A number of
anthropologists have offered useful accounts of the concept of culture Raymond
Williams Culture and Society (1961) is often credited with helping to instigate what
is now known as cultural studies In an attempt to identify the concepts and
definitions of culture the eminent anthropologists Alfred Kroeber and Clyde
Kluckhohn (1963) approached culture as a traditional crystallization with traditional
values at the centre of the culture Next translation theorist Peter Newmark (1988)
gave a rather comprehensive definition of culture ldquoas the way of life and its
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 58
manifestations that are peculiar to a community that uses a particular language as its
means of expressionrdquo (p 94)30 Legal scholar D J Black (1976) defined culture as
ldquothe symbolic aspect of social life including expressions of what is true good and
beautifulrdquo (p 61) It encompassed such things as ldquoideas about the nature of realityrdquo
ldquoconception of what ought to bersquo and ldquoaesthetic life of all sortsrdquo (p 61) For Black
culture included all kinds of ideas concepts and beliefs as manifested in language
behaviour and lifestyle A more recent definition from Bates and Plog (1990) states
that culture is ldquothe system of shared beliefs values customs behaviours and artifacts
that the members of society use to cope with their world and with one another and
that are transmitted from generation to generation through learningrdquo (p 7)
Law is just one part of culture that actively contributes in the composition of
social relations Sarat and Kearns (1999) pointed out that ldquowith the growing attention
to legal consciousness and legal ideology in socio-legal studies legal scholars have
come regularly to attend to the cultural lives of law and the ways law lives in the
domains of culturerdquo (p 5) Black (1976) defined law as ldquogovernmental social
controlrdquo Social control was in turn defined as ldquoresponse to deviant behaviourrdquo of
every kind including ldquolaw etiquette custom ethics bureaucracy and the treatment of
mental illnessrdquo (p 9) The concept of law occupies a central place in Blackrsquos theory
In his view the grown tree of cultural tradition imposes core legal meanings that can
be traced down to historical roots Conventionally the study of law with relation to
culture is the study of a complex whole which includes knowledge belief art morals
30 Newmark further classified culture into five categories Ecological culture such as plants animals
winds landscape etc material culture such as food clothes transport etc social culture such as work
and leisure culture of organizations customs activities procedures concepts and culture of gestures
and habits (p 83)
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 59
legal custom and any other capabilities and habits acquired by man as a member of
society
Previous studies of legal culture have thus exhibited multiple perspectives and
approaches Research interests in legal culture arise mainly from inter-disciplinary
studies especially comparative law and social science although the range of subjects
judged relevant to the concept of legal culture varies from study to study Because
sociologists comparativists and other theorists have very different ideas about what
constitutes ldquolegal culturerdquo many different views and practices are subsumed under the
same concept It is a concept that is frequently employed as a convenient cover term
for a large number of phenomena the general status of law in a society specific
structures of law opinions with regard to law by the general public or legal
professionals particular practices or behaviours of legal institutions or legal
professionals Legal culture has often been analyzed in its relation to particular
countries and legal systems There is an extensive literature on the legal culture of
specific countries In addition there are numerous works (especially works by
scholars of comparative law) discussing and analyzing the distinctive characteristics
and cultures of the two main legal systems the civil law and the common law31 The
concept of legal culture seems to be an all encompassing referential and explanatory
instrument for all relevant theoretical studies As is the case with the concept of
culture a common understanding of legal culture seems impossible to achieve In
31 Scholars of comparative law may be in a better position to analyze different legal cultures between
civil law and the common law if they acknowledge the fundamental and profound distinctions between
these two major legal traditions There is an inclination to treat them as homogenized in spite of the
fact that they operate in different jurisdictions The characteristics of the common law and civil law
have often been discussed with special reference to the development of legal tradition again a process
of crystallization
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 60
addition it is hard to engage in any analysis without asking ldquolegal culture in what
sense of the term or in relation to what kind of research subjectrdquo Therefore instead
of falling into the trap of defining legal culture as some kind of unitary force we
intend to describe and analyze the substantive contents that constitute the culture of
law with regard to legal translation studies We will begin with a review of how the
concept of legal culture has been conceived in previous studies
Since the notion of culture is hard to define due to its multifarious interpretations
in the literature there is no standard definition of culture However many scholars
accept the postulates provided by Bates and Plog (1990) as a working version Culture
is thus defined here sociologically as the typical ways of living built up by a people
including the beliefs and attitudes which support them Culture under such a
treatment finds its expression on two levels (1) shared beliefs and values conceived
by particular members of society and (2) the customary behaviours they practice
Studies relating to legal culture cover many aspects and it is not necessary for our
present purpose to give a comprehensive account of all those extended explorations
Rather we need is to isolate the variables that legal culture can refer to and then to
identify among these variables which sense of legal culture legal translation has to
deal with Some of the major variables for this concept of legal culture are
- Shared attitudes values and opinions (Friedman 1975 p 76)
- Legal ideology (Cotterell 1997 p 22)
- Shared norms and modes of thinking (Ginsburg 2003 p 1337 )
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 61
- Legal studies legal education and legal theory addressing legal conceptions
policies and reasoning and education (Atias 1986 pp 1118-9 )
- Legal reasoning that cultivated a series of principles of the case law (Atiyah
(1987 p 323)
- Legal principles best represent the spirit of rule of law (Kuan 1997 pp
187-205)
- Attitudes and beliefs lie in legal tradition (Pound1937 Merryman 1985)
- ldquoLaw in bookrdquo ldquolaw in actionrdquo ldquoelite legal consciousnessrdquo and ldquolegal
behavioursrdquo (Blankenburg amp Bruinsma 1994 pp 39 42)
- ldquoMentalitiesrdquo ldquomode of thinkingrdquo ldquothe method of reasoningrdquo and ldquolegal
trainingrdquo (Curran 1998 p 70)
As this list suggests the concept of legal culture in general discussions refers to
such varied elements that the variables mentioned need to be categorized if they are to
assist our further analysis Just as with culture in the broad sense the concepts of legal
culture discussed by scholars can be categorized in two ways Legal culture may refer
to peoplersquos conceptions of law alone or to both peoplersquos conceptions and their specific
practices of law32
32 To select a term that could best cover the numerous parameters in relation to the totality of peoplersquos
thought referred to in extensive studies by scholars from different disciplines we considered of
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 62
312 Legal Culture as Conceptions of Law
Viewing legal culture as conceptions widely held by people within a society
country or legal system theorists tend to concentrate on the thought-related
expression of legal culture In an attempt to bring out the idea that particular legal
systems operating in a social context have cultural and ideological presuppositions
and implications Friedman (1977) distinguished between ldquointernal legal culturerdquo and
ldquolay legal culturerdquo after giving his general definition of legal culture ie ldquoattitudes
values and opinions held in society with regard to law the legal system and its
various partsrdquo He observed that such ldquoattitudes values and opinionsrdquo could be
divided into two sets that of the ldquogeneral publicrdquo and ldquothat of lawyers judges and
other professionalsrdquo (p 76) For Friedman (1997) the concept of legal culture was a
useful way to categorize a range of phenomena in the field of law (p 33) This
position was first criticized by Cotterrell (1997) who held that it is impossible to
develop a concept of legal culture with sufficient analytical precision and that the
concept works more as an ideal than as a set of variables He basically rejected the
concept of legal culture as a way of identifying the exact relationship existing among
social phenomena such as characteristic institutions and patterns of thought and belief adopting the term ldquoideologyrdquo as proposed by Cotterrell (1997 pp 21-22) However the term
ldquoideologyrdquo has been notoriously tainted with political implications and is therefore misleading We thus
finally decided to use the more neutral and general term ldquoconceptionrdquo which serves our purpose of
generalizing the many variables pertaining to totality of thought (as distinct from totality of practice or
behaviour) that legal culture can refer to The definitions of ldquoconceptionrdquo in the OED online dictionary
are as follows (a) The action or faculty of conceiving in the mind or of forming an idea or notion of
anything apprehension imagination (b) The forming of a concept or general notion the faculty of
forming such pl Thoughts meditations courses of thought (c) That which is conceived in the mind
an idea notion (d) An opinion notion view (e) Something originated in the mind a design plan an
original idea (as of a work of art etc) a mental product of the inventive faculty (OED Online
Dictionary httpdictionaryoedcom accessed on August 2007)
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 63
He viewed the concept of legal culture as merely a convenient concept to ldquorefer
provisionally to a general environment of social practices traditions understandings
and values in which law existsrdquo (pp 21-22) Cotterrell thus preferred to use a more
specific notionmdashlegal ideology For him this represented legal doctrines ldquobeliefs
attitudes and valuesrdquo that ldquocan be translated into regulatory practicesrdquo (p 22)
Friedman (1997) contended that while vague and difficult to define there are many
fundamental concepts like ldquostructurerdquo or ldquosystemrdquo which constitute the building
blocks of social science (p 33) The concept of legal culture which he regarded as
falling into this class is useful for categorizing a range of phenomena in the field of
law (p 33) In reaction to Cotterellrsquos proposal to substitute the notion of legal culture
for that of legal ideology Friedman observed that legal ideology fell into his
classification of internal legal culture an aspect of culture that finds particular
resonance with scholars and legal professionals many of them have attached great
importance to ldquolegal ideologyrdquo especially legal doctrines (p 38) Friedman then
pushed the centre of his study of legal culture to what he called ldquolayrdquo legal culture (p
39)
Following Friedmanrsquos dichotomy between external and internal legal culture
Ginsburg (2003) noted that legal culture as characterized by legal scholars could be
defined in two ways On the one hand legal culture could be viewed in terms of its
intimate association and active interaction with a social and national culture
(Friedmanrsquos external legal culture) On the other hand legal culture could be regarded
as the internal legal culture featuring the ldquoshared normsrdquo and mode of thinking of
legal professionals that resulted from their common training (p 1337) Farrar and
Dugdale (1990 p 246) preferred to confine the concept of legal culture to internal
legal culture since they shared Watsonrsquos view that ldquolaw is more an expression of the
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 64
culture of the lawmaking elite rather than that of society at large and that the variety
of interests and attitudes possessed by such elites may thwart attempts to generalizerdquo
Although Friedmanrsquos dichotomy of legal culture makes it easier to further explore the
nature of legal culture it is undeniable that an essential substance of any legal system
is the culture of the legal professionals
Atias (1986) observed from the perspective of American law that legal culture
had been a well received and commonly used term among American legal researchers
The notion of American legal culture itself however still lacked conceptual precision
and deserved ldquobetter treatmentrdquo In view of this he proposed that ldquothe notion of
traditional scholarly orderrdquo as a springboard for the study of the notion of American
legal culture (p 1122) Atias believed that legal culture was based on the rich history
of legal studies and legal education while legal studies encompassed various legal
theory addressing legal conceptions policies and reasoning and education (pp
1118-9) Cultural consistency and enrichment came from the progressive
sedimentation of continuous efforts jointly made by the legal profession especially
lawyers jurists and judges to uphold those legal principles that finally ldquosurvive the
most conclusive criticisms and preserve their appealrdquo (p 1134) Atias concluded that
ldquothe study of the legal culture is thus the study of its progressive and never finished
formationrdquo (p 1135) In similar vein Atiyah (1987) held that the legal culture of the
common law included legal reasoning that cultivated a series of principles of the case
law and consequently ldquoEnglish statute has traditionally been drafted in such detail that
it can be said to be a catalogue of rulesrdquo (p 323) As we shall see both legal theory
and legal reasoning are definitely a reflection of views and beliefs about law thus
putting law in a cultural context
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 65
In Mineshimarsquos (2002) view the notion of the rule of law was the foundation of
any given legal system or legal culture This notion was determined by the traditions
and attitudes such as the views on the role and functions of the state the law and the
legal system In other words legal culture consisted of the traditional attitudes
towards the role and functions of the state the law and the legal systems (p 74) Kuan
(1997) also considered the idea of rule of law as an integral part of legal culture She
held that the legal culture of the common law lay in the concept of the rule of law
which found its expression in various legal principles (pp 187-205) For her the
seven most important common law principles embodied in the concept of rule of law
were ldquono law no crime equality before law law binds the ruler judicial
independence inborn rights obligations over rights and presumption of innocencerdquo
(p 195)33
If legal culture is regarded as peoplersquos conceptions of law it is appropriate to
probe its historical roots and philosophical foundation to search out how and where
legal tradition comes into play thus affirming that legal tradition is the basis of legal
culture Pound (1939) highlighted the concept of legal tradition when comparing the
characteristics of the common law and civil law For him the legal culture of the
common law contained those distinct traits derived from its legal tradition Another
33 Kuan also incorporated Betty Tsursquos argument that ldquothe concept of the rule of law is represented by
three items nullum crimen sine lege exercise of arbitrary power by the police and equal opportunity
before the courtsrdquo (p 190) Kuan gave a more detailed description of the rule of law ldquothe rule of law
is deconstructed into four theoretical aspects legal freedom legal equality rights-based autonomy of
law and due process Legal freedom meaning freedom from arbitrary government is defined by the
principle of lsquono law no crimersquo Legal equality consists of two principles the general principle of
lsquoequality before lawrsquo and the specific principle of lsquolaw binds the rulerrsquo The complex aspect of legal
autonomy is expressed by three principles lsquojudicial independencersquo lsquoinborn rightsrsquo and lsquoobligations
over rightsrsquo The last aspect of due process is defined in terms of the principle of lsquopresumption of
innocencersquo (pp 202-03)
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 66
American comparativist Merryman (1985) gave legal tradition a more detailed
description ldquoa legal tradition (as opposed to a system) is a set of deeply rooted
historically conditioned attitudes about the nature of law about the role of law in the
society and the policy about the proper organization of the operation of a legal system
and about the way law is or should be made applied and studied perfected and
taughtrdquo (p 2) For Merryman the shared cultural traits of different legal systems have
their origin in legal tradition in other words legal tradition is what endows them with
those shared cultural traits In this sense legal culture comes from legal tradition
However many have contended that the difference between legal tradition and
legal culture is merely one of emphasis Legal tradition signifies a historical
perspective while legal culture refers more to the anthropological ethnic or
socio-political perspective of law As we shall see legal culture is regarded as
peoplersquos conception of law either in its contemporary manifestation or in its historical
growth ie legal tradition The term ldquolegal culturerdquo is concerned more with
theoretical or ideological opinions than with actual behaviours or practices
313 Legal Culture as Both Conceptions and Practices of Law
For other scholars legal culture not only refers to what is conceived in peoplersquos
mind but also to their behaviours and practices with respect to law In a comparative
research on differences between the common law and civil law Curran (1998)
acknowledged that there were fundamental differences between the common law and
civil law with respect to ldquomentalitiesrdquo ldquomode of thinkingrdquo ldquothe method of reasoningrdquo
and ldquolegal trainingrdquo that can be considered as composing elements of legal culture (p
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 67
70) Curran then analyzed the ldquoattributesrdquo that were ldquocharacteristic of common-lawrdquo
legal culture ldquobut uncharacteristic of civil-lawrdquo legal culture by observing that the
common law was ldquoa law defined in terms of past judicial decisionsrdquo and evolved with
the legal rules from ldquoprior judicial decisionsrdquo while the civil law attached more
importance to codification (pp 71-75) Curran also noted that ldquothe prominence of the
proceduralrdquo was another distinct feature in common law legal culture (p 81) Most
importantly common law legal professionals had been habitually skilful in ldquoreasoning
by analogyrdquo and produced ldquoan accumulated body of arguably similar and dissimilar
prior casesrdquo and ldquoconsequently statutory norms are lain on a Procrustean bed of
precedents even when they have never yet been subject to adjudication in the relevant
jurisdictionrdquo (p 83) Curran then concluded that ldquothe significance of the common law
thus resides in the case law even where the common-law court is applying a statute
and even where the statute is newrdquo (p 83)
Blankenburg devoted many years and much literature to the study of legal
culture Blankenburg amp Verwoerd (1988) observed that there were two conceptions of
legal culture One conception treated law as a system consisting of rules and
principles The other viewed legal culture not only as the above rules and principles
but also as the institutional practices attitudes and behaviour of legal actors (p 10)
Blankenbrug amp Bruinsma (1994) reinforced the above view in another study of Dutch
legal culture They identified Dutch legal culture at four levels (1) ldquolaw in booksrdquo (2)
ldquolaw in actionrdquo (3) legal behaviours such as litigation preferences and (4) ldquoelite legal
consciousnessrdquo (pp 13-14)34 In another comparative work Blankenburg (1998)
34 In giving a detailed description of ldquolaw in booksrdquo Blankenburg (1998) held that it ldquocomprises the
body of substantive as well as procedural law that is considered legally valid helliprdquo As for the concrete
substances of ldquolaw in actionrdquo Blankenburg (1998 p 13) claimed that it ldquois channeled by the
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 68
investigated the patterns of legal culture by comparing the legal institutions with those
of Germany He argued that legal culture was ldquocharacterized by indicators of
institutions as well as behaviourrdquo (p39) Acknowledging that the conception of legal
culture was a comprehensive one he extended Friedmanrsquos ldquooperational definitionsrdquo of
legal culture ie attitudes values and beliefs to ldquointerrelationship of various levelsrdquo
that were more suitable for comparative and descriptive studies (p 40) These levels
are (1) ldquopatterns of legal behaviourrdquo such as litigation behaviour (2) ldquopatterns of
legal consciousnessrdquo (3) patterns of institutional behaviour such as ldquothe legal training
the composition of the legal profession the organization of courts and the
infrastructure of access to themrdquo (p 41) Blankenburg held that patterns of legal
culture (the above three levels) could serve as indicators when comparing legal
cultures We can see that the above researchers are not satisfied with limiting the
concept of legal culture merely to conceptions of law held by people Moreover they
employ the concept of legal culture to refer to a wide range of phenomena such as
litigation preferences in a society the practice of legal training and education and
shared behavioural patterns among legal professionals For our present purpose we
will consider legal culture less as a universal value system that directs peoplersquos
actions and more as a variety of conceptual instruments for classifying attributes of
peoplersquos conceptions and practices We will additionally focus more on those aspects
of legal culture which have a direct bearing on our inquiry into legal translation
institutional infrastructure of the legal system Two important elements of this infrastructure are the
judicial court system and the legal profession In their shadow para-judicial institutions may be
substitutes for the formal court system and the legal profession helliprdquo (p 13)
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 69
32 Clarification of the Concept of Legal Culture
Concerning the actual relevance of legal culture to legal translation we would
like to note the following First despite the denunciation of translation as linguistic
transcoding in arguments for a culturally oriented approach against a linguistically
oriented approach in general translation theory (Snell-Hornby 1990 pp 79-85)
translation remains by nature an act of linguistic transcoding and the proposition of
translation as cultural transfer actually represents one pole of the interpretation of
cultural transfer in translation ie cultural transfer as domestication Secondly
cultural transfer as foreignization is best exemplified in legal translation since the goal
of legal translation is to reproduce a legal text in the target language which has the
same meaning as the source text while also transferring the legal culture of the source
text into the target language text The legal translator is bound to achieve semantic
equivalence in cultural transfer foreignization Thus concepts like linguistic
transcoding cultural transfer semantic equivalence and legal culture deserve serious
treatment as these notions with their interpretations determine how we think about
legal translation and also shape the specific theoretical framework we construct in the
special context of translating the common law into Chinese We earlier clarified the
concepts of linguistic transcoding cultural transfer and semantic equivalence and we
have just investigated the concept of legal culture and its various interpretations in the
previous section As we do not wish to generalize and make broad statements of legal
culture that might crumble under logical analysis we must now clarify the concept of
legal culture insofar as it relates intimately to legal translation
Let us first consider the process of legal translation illustrated by the following
diagram
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 70
(1) SL (Language of Source Legal Text) TL (Language of Target Legal text)
Legal culture
embedded in
source text
Transference of
the legal culture
Linguistic transcoding
Which
sense of legal
culture could
find
representation
in the source
legal text
-Legal ideology
-Legal studies legal education
and legal theory
-Shared attitudes values and
beliefs
-Shared norms and modes of
thinking
Variations of
the concept of
legal culture
in literature
Which
sense of legal
culture could
find
representation
in the target
legal text
ST
(Source
Text)
TT
(Target
Text)
Language of
the source
legal text
Language of
the equivalent
legal Text
(2) Assumed SC (Culture of the Source Text) SC (Culture of the Source Text)
Figure 32 Process of Legal Translation
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 71
The first plane depicts the process of linguistic transcoding where the legal translator
represents the source legal text with the equivalent legal text in the target language In
other words the two end products of legal texts should convey the same legal
meaning The second plane depicts the process of transferring the legal culture We
note that during the translation process what should be maintained intact is the
source legal culture This point is emphasized as it echoes with our previous
observation that cultural transfer as foreignization is the transfer of the source culture
into the target language instead of naturalizing the source culture with the
overwhelming conventions of the target culture Obviously enough what could be
transferred are the variables that have the most direct and intimate bearing on the
language of the source legal text since the process of foreignization is inseparably
bound up with the process of achieving conceptual semantic equivalence Resuming
our task of finding the legal culture embedded in source text we also ask in figure 32
which sense of legal culture could find representation in the legal text We recall that
the concept of legal culture as examined in the previous section is employed to refer
to a variety of objects that can be grouped into two major categories legal culture as
peoplersquos conceptions of law or as both conceptions and practices In legal translation
the legal translator is faced with the substantive legal textsmdashlaws in their written
form
Take the example of tort law in Hong Kong Although Hong Kongrsquos tort law has
its origin in English tort law some of the legal practices of judges and lawyers may
vary from other common law jurisdictions Legal professionals in Hong Kong may
share the same knowledge and belief in the law of tort ie ldquotort in booksrdquo but what is
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 72
the status of ldquotort in actionrdquo35 It is interesting to note that for example courts in
Hong Kong are reluctant to use actuarial evidence in the calculation of damages in the
tort litigation In consequence lawyers are also cautious on whether to provide
actuarial evidence in the court Such practice and behaviour by legal professionals
with regard to tort litigation in Blankenburgrsquos (1994 pp 13-4 amp 1998 pp 39-41)
view was also evidence of the legal culture However it is impossible for the legal
translator to deal with legal culture in that sense as the final encounter of the legal
translator is the legal textmdashthe source language that legal culture is embedded in
Lloyd (1964) thought that the great achievement of the human language especially
the language of law lay in its capacity to create ldquogeneral concepts which provide the
essential tools of human reflectionrdquo (p 285) In explaining the conceptual thinking in
the common law Lloyd remarked
For instance if we take the rules of the criminal law relating to such matters as murder and theft
it is quite true that these are in themselves legal concepts which only have meaning in the
context of legal rules which go to form a legal system We can only understand what is meant by
murder by acquainting ourselves with the legal constituents of this offence and how these
operate in the legal system hellip The law hellip needs to conceptualize these and other related ideas
much more precisely before it can operate a system of criminal law in a rational and systematic
way (pp 289-90)
As Farrar and Dugdale (1990 p 246) put it ldquolaw is more an expression of the
culture of the lawmaking elite rather than that of society at largerdquo the conceptual
35 Here we borrow Blankenburgrsquos idea We use the expression ldquotort in booksrdquo to refer to the body of
substantive and procedural tort law In similar vein we use the expression ldquotort in actionrdquo to
characterize the legal practice and behaviour of the judicial court system and the legal profession
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 73
thinking is that of legal professionals rather than that of the general public In
translating the law in books therefore the legal translator should have an adequate
knowledge of the conceptual thinking of legal professionals and transfer this into the
target language Similarly legal culture as viewed in this study refers to the
conceptual thinking about the law shared by legal professionals To sum up briefly
the above schematic framework of exemplification has the merit of simplicity but is
merely the skeleton on which we must build This endeavour may lead to conceptual
refinements and help to narrow down the concept of legal culture to fit our analysis of
legal translation We proceed in the next section to pin down the substantive contents
of legal culture with which the legal translator must cope in translating the common
law into Chinese
33 The Legal Culture of the Common Law
Identification of the concept of legal culture as the conceptual thinking shared by
legal professionals leads us in the present study to a further question what precisely
are these legal conceptions shared by the legal professionals as far as the common law
is concerned Since the culture of the common law as it stands is representative of its
legal tradition we need to look first at the development of the culture of the common
law from a historical perspective ie the common law tradition before we can begin
to analyze its substantive construction36
36 Theorists of comparative law are inclined to use the common law tradition vs civil tradition to
compare between the worldrsquos two major legal systems Comparative studies of the common law and
civil law tend to generalize about the characteristic differences between the two legal systems as if their
traditional features were crystallized even if they do acknowledge that some constructs are peculiar to a
single jurisdiction
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 74
The common law is the system of law that prevails in England and in countries
colonized by England The very name is derived from the medieval theory that the
law administered by the kings courts represented the common custom of the realm
The distinctive feature of the common law is that it represents the law of the courts as
expressed in judicial decisions The grounds for deciding cases are found in
precedents provided by past decisions as contrasted to the civil law system which is
based on statutes and prescribed texts It emphasizes the centrality of the judge in the
gradual development of law and the idea that law is found in the distillation and
continual restatement of legal doctrine through the decision of the courts The
common law consists of the rules and other doctrine developed gradually by the
judges of the English royal courts as the foundation of their decisions and added to
over time by judges of those various jurisdictions recognizing the authority of this
accumulating doctrine This concept is embodied in the doctrine of stare decisis
(ldquostanding by decisionsrdquo) that emphasizes the importance of legal precedents
established in previously settled cases The establishment of the common law gives
rise to leading concepts like ldquopersonsrdquo ldquorights and dutiesrdquo and ldquoownership property
and possessionrdquo (Lloyd 1964 pp 300-25) The common laws unity has been
attributed to the fact that law is grounded in and logically derived from a handful of
general principles and that whole subject areas such as contract or tort are
distinguished by common principles or elements that fix the boundaries of each
subject area
The common law tradition shapes the construct of the common law serving as its
philosophical and practical foundation Since the present study focuses on the
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 75
conceptual expression of legal culture in general we will concentrate on the
conceptual features of the common law rather than its practical features37
Let us first consider the translation of one fragment of the legislation of Hong
Kong found under the heading Apportionment of liability in case of contributory
negligence
Where any person suffers damage as the result partly of his own fault and partly of the fault of
any other person or persons a claim in respect of that damage shall not be defeated by reason of
the fault of the person suffering the damage but the damages recoverable in respect thereof
shall be reduced to such extent as the court thinks just and equitable having regard to the
claimants share in the responsibility for the damage (Amended LN 337 of 1989) (Cap 23
Sect 21)
The Chinese translation is as follows
條文標題有共分疏忽時法律責任的分攤
如任何人受到損害部分原因是該人本人的過失而部分原因是他人的過失則就該損害
提出的申索不得因受損害者有過失而敗訴但就該申索可追討的損害賠償則必須減少
而減少的程度是法院在顧及申索人對損害應分擔的責任後認為是公正與公平的款額
In the light of figure 32 the legal texts are two linguistic products directly linked
by semantic equivalence Let us explain the thinking process behind such end
37 By practical features we mean the characteristic behaviour and practice of legal professionals and
legal institutions such as how the legal training or education is performed how law is applied by
judges and lawyers etc
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 76
products When faced with the English legal text the legal translator seeks to extract
its meaning Clearly she needs to delve into the culture of the common law in order to
understand all the shades of meaning of the English legal text and produce a Chinese
legal text with the same meaning Here arises the real problem what exactly are those
cultural factors of the Common Law that she needs to pin down To understand the
whole world of culture behind every term we need to do legal research trying as
Vandevelde (1996) nicely put it to think like a lawyer We need to know the
subjective classifications the law addresses in the above example we must
understand that the ordinance belongs to an important branch of common lawmdashtort
law We then need to master the conceptual development of the specified law The
common law concept of tort is best defined as a civil wrong which the victim seeks
remedy for in the form of some kind of damages Examples of a tort would be assault
battery false imprisonment and negligence
Let us turn back to the substantive content of the ordinance mentioned above
The ordinance deals with one defence of negligence contributory negligence In
common law the principle of contributory negligence takes into account the relative
degrees of fault between the plaintiff and defendant and attempts to adjust award of
damages accordingly In the light of our categorization of the concept of legal culture
the above discussed legal concepts and legal principles embedded in the ordinance
reflect the shared beliefs of the legal professionals in the common law and fall under
the category of peoplersquos conceptions of law
The common law then is built on a series of traditionally well-formed legal
concepts which belong to different conceptual classifications such as tort equity
contract etc if legal tradition is regarded as the deeply rooted historically formed
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 77
attitudes towards law38 Practically legal principles in each subject of the law have
been developed into concrete and coherent constructions that make up the common
law we see before us today Therefore the common law is an accumulation of
deep-rooted historically moulded conceptual thinking shared by legal professionals
and reflected in two aspects legal concepts and legal principles Together these make
up the substance of the common lawrsquos legal culture
34 The Legal Culture of Traditional and Modern Chinese Law
As noted in section 222 the act of translating the common law into Chinese was
at the same time creating a variety of the Chinese language namely common law
Chinese as Chinese had not developed as a language to express the common law
before its translation Historically the development of Chinese legal language
represents the evolution of Chinarsquos legal culture Thus an investigation of the legal
culture of traditional and modern Chinese law serves two purposes First it will show
how the legal culture of traditional and modern Chinese law differs from that of the
38 Curran (2001 p59) also noticed this fundamental nature of the common law but instead of
conceptual ldquoclassificationrdquo she referred to conceptual ldquocategorizationrdquo Curran observed
hellip categorization is the process that underlies and determines differences in cultural contexts
Cultures differ from each other on the basis of the underlying categories in which members of
that culture place the empirically observed data categories whose own construction brings
certain observed data into sharp delineation hellip Thus cultural contexts result from sub-structural
patterns of classification in each culture hellip in contradiction to the Common Law system of
monetary remedies as the norm (normal remedies for breach of contract) and specific
performance the exception The Common Lawrsquos stark delineation between tort and contract law
is alien to the civil law with the concept of lsquofaultrsquo indispensable to civil law contract analysis
while unfamiliar in the Common Law contract analysisrdquo (pp 59 82)
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 78
common law Second it will show how Chinese has become an appropriate language
for expressing the common law through the evolution of Chinarsquos legal culture
Traditional Chinese law refers to the law operating in China up to 1911 when the
last imperial dynasty the Qing Dynasty fell Given its long history of feudal
monarchical and imperial regimes China can on this score be regarded as a stagnant
society Despite the stagnation of Chinarsquos political institutions traditional Chinese
law had undergone continuous development with a legal tradition distinct from the
two major legal traditions in the West ie the common law and the civil law The law
operating in different dynasties has its own peculiar features It is generally agreed
that the earliest authentic document on law in China is the Kanggao in Shangshu (尚
書康誥) in the Zhou Dynasty (c 1045-256 BC) Jiang (2003) held that the main idea
in Kanggao was the advancement of virtue (德) and the exercise of discretion in
punishment (明德慎罰) (p 1) However legalism (法家) prevailed and became the
central governing idea of the Qin Dynasty (221-206 BC) In this context Fa (法)
means law or principle which represents the political philosophy that upholds the rule
of law39 The Tang Code (618-906) in the Tang Dynasty was considered one of the
most important codes in Chinese history40 The central philosophy of law in the Tang
39 The main thoughts of legalism included the following the code must be clearly written and made
public all people under the ruler were equal before the law laws should reward those who obey them
and punish accordingly those who dare to break them (Jiang 2003 pp 15-31) Chen (1999) also noted
that
The bamboo strips found in 1975 contain strikingly sophisticated law and institutions from the
Qing Dynasty (221-206 BC) these legal arrangements perhaps represent the most advanced stage
of legal development of the time in the worldrdquo (p 6)
40 Johnson (1979) rightly pointed out the significance of the Tang Code in the history of traditional
Chinese law
Though based on earlier sources Trsquoang legislation has been more important historically than that
of any other dynasty hellip The great criminal code entitled The Trsquoang Code (Gu Tang Lu shu yi 故
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 79
Code was summarized as the advancement of li (一本于禮 ) (Jiang 2003
pp123-34)41 Chrsquou (1961) provided a definition of li
The li which may be defined as the rules of behaviour varying in accordance with onersquos status
defined in the various forms of social relationships were formulated by the Confucianists for this
purpose They are the means by which differences in status and role are maintained (pp 230-31)
Therefore a person in a different title and position was required to follow different li
Johnson (1979) also noted that li was the guiding principle for different classes
especially favoured ones (p 11) The Tang Code was considered the earliest model of
criminal law in China and had a strong influence on the development of criminal law
in other East Asian countries42 Johnson (1979) pointed out
hellip the Trsquoang dynasty is the earliest time from which we can obtain an accurate picture of the
range of Chinese criminal law during the imperial period and the structure of ideas that underlay
its provisions (p 8)
Thus the Tang Code had a far-reaching influence on the traditional Chinese law since
ldquoafter the fall of the Trsquoang dynasty the Code continued to dominate Chinese criminal
legislation until the end of the imperial periodrdquo (p 13)
唐律疏議 hereafter referred to as Code) hellip Though only the Code has survived in entirety we
know from historical sources as well as from still extant fragments that there was a large body of
written law in effect during the Trsquoang period There were four main divisions the Code (lu 律)
the Statutes (ling 令) the Regulations (ge 格) and the Ordinances (shi 式) (p5) 41 The term li (禮) is usually translated as rite ceremonies or propriety It is also translated as morality
(Johnson 1979 p 11) 42 Meijer (1976) noted some of the features of the Tang Code
The legal provisions were models and analogical application was allowed hellip The law itself also
often gave rules that a certain act should be similarly punished as an offence defined under a
different heading (p 4)
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 80
The Daqing Luumlli(大清律例) compiled in the Qing Dynasty was considered as a
rather comprehensive criminal code 43 Meijer (1976) compared the criminal
provisions in the Tang and Qing Codes to show the development of criminal law in
traditional Chinese law Meijer noted
The provisions were of a simple character categorical classification did not occur as the
evaluation of each act depended on the circumstances So there were not simply provisions for
intentional or unintentional homicide but special articles for parricide ldquoplannedrdquo homicide
homicide in a game by mistake ldquowithout authorityrdquo of more persons of one family of a senior
of the family and vice versa of the slave by the master and vv of an official in an affray by
means of poison or misused drug in hunting etc In the Ta-Chrsquoing Hui-tien the Collected
Institutes of the Chrsquoing dynasty they are classified as the six (ways of) homicide Liu-sha viz
homicide planned intentional in an affray by mistake by negligence and without authority (p
4)
We can see that in the course of the development of traditional Chinese law the focus
is largely on the penal systems and that the sovereignrsquos power to make laws is closely
intertwined with punishments
Since we are not intending to conduct a fully comprehensive analysis of the
development of traditional Chinese law our emphasis will be on the characterization 43 Meijer (1976) introduced the provisions contained in the Qing Code
The Code was divided into seven chapters viz the General Provisions (Ming Li) or Rules about
Names Definitions or Denominators of Offences containing rules about the punishments the ten
ldquoabominationsrdquo privileged classes offences by officials special classes of offenders
impardonable offences increase and reduction of punishment voluntary surrender to justice
indemnification joint offences contradictory provisions in the code desertion of soldiers
terminology The other six chapters contained the rules for the specific offences helliprdquo (pp 4-5)
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 81
of the legal culture of traditional Chinese law As noted in section 31 theorists
treated legal culture either as peoplersquos conceptions of law or the combination of
peoplersquos conceptions and practices of law As defined in section 32 legal culture in
this study refers to the conceptual thinking shared by legal professionals Since it is
generally agreed that traditional Chinese law was built on traditional Chinese
philosophy the thoughts shared by traditional Chinese philosophers were embodied in
traditional Chinese codes inherited from one dynasty to another with constant
supplement and revision by each subsequent dynasty Therefore the legal culture of
traditional Chinese law refers to the conceptual thinking of traditional Chinese
philosophers which found an embodiment in the law Let us look at the typical
features of the conceptual thinking embodied in traditional Chinese law and compare
them with the legal culture of the Common Law
It is generally agreed that Confucianism is one of the most important philosophies
manifested in the underlying traditional Chinese law Chrsquou (1961) remarked
The main characteristics of traditional Chinese law are to be found the concept of family and in
the system of classes Since these concepts are basic to Confucian ideology and to Chinese society
they are also basic to Chinese law as well (p9)
Though Confucianism provided the fundamental substance of traditional Chinese law
it was by no means the only philosophy influencing the development of traditional
Chinese law44 Chen (1999) noted
44 Chen (1999) pointed out
hellipthere is always a danger of over-generalization and over-simplification when dealing with a
tradition and a civilization spanning several thousand years In the case of China the traditional
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 82
Traditional Chinese conceptions of law have been largely influenced by writings of traditional
schools of philosophy Of these three have had a particular influence namely Ru Jia
(Confucianism) Fa Jia (Legalism) and Yin-Yang Jia with Confucianism being the dominant
force since the Han Dynasty (206 BC) (p 7)
As traditional Chinese law developed it came to incorporate two controversial
philosophies ie Confucianism and Legalism Chen (1999) observed that the central
view of Confucianism was ldquothe educational function of morality (li) in governing a
staterdquo (p7)45 Thus people were distinguished according to their status this should be
clearly defined so that people of different status could carry out their roles properly
and conform to approved patterns of behaviour Johnson (1969) held that the thought
of li promoted by Confucianism had at least three major impacts on the conceptual
thinking of traditional Chinese law First in traditional Chinese law ldquoa hierarchical
structure of superior-subordinate relationship is treated as natural and indispensable to
regulate human relationshipsrdquo Secondly it helped the sovereign ldquodevelop a legal
concept of rulership which is dovetailed with the concept of virtuous leadersrdquo Thirdly
ldquolaw is treated as rules of propriety rather than a device to protect individual rightsrdquo
(pp16-17)
society and legal culture are often described as lsquoConfucianrsquo However Confucian teachings as
reflected in the Confucian Classics have been the subject of endless interpretation and
reinterpretation by both philosophers and the ruling elites in China Views on and attitudes
towards the governance of society and law within one school of thought are often as diverse as
those between different schools of philosophy In this sense the term lsquoConfucianismrsquo is perhaps
quite misleading (p 4) 45 Liji (Code of Rites 禮記) (Western Zhou Dynasty c 900-771 BC) became the basis for
Confucianism
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 83
Chrsquou (1961) also noted that although legalists ldquodid not deny the reality of social
differentiation they made no attempt to distinguish people in different social statusrdquo
(p 242) Instead they advocated ldquoa uniform law a uniform reward and punishmentrdquo
(Ibid) In analyzing the criminal law of Qinluuml (秦律) which best reflected the thought
of legalism Liu (1998) remarked
[In] hellip analysis of the criminal law of Qin this is of great significance since it was upon this basis
that the Qin Lu divided crimes into two basic categories namely gong shi gao (official
denunciation) and fei gong shi gao (unofficial denunciation)(p 226)46
It is interesting to note that such a division of crimes was made on the basis of
the individual family at that time the basic unit of society Liu explained that ldquowhere
anyone who intentionally infringed upon the rights of person and property of people
who were not members of his own household it would be treated as a case of official
denunciationrdquo and vice versa (p 226) Different punishments were meted out
according to the above two kinds of offences In this regard Confucianists strongly
objected to the emphasis on severe punishment for maintaining social order
Confucianists instead promoted Shangang (三綱) and Wulun (五倫) which can be
translated as ldquothree bondsrdquo and ldquofive human relationshipsrdquo (Chrsquou 1961 pp
236-37)47 In conclusion ldquothe dispute between Confucianism and Legalism was more
46 As a primary Legalist (Fa Jia) code the Qin Lu (Qin Code) framed by Shang Yang (c 300 BC)
institutes uniform rules for social behavior and attempts impartial rewards and punishment Harsh
punishments were based on lianzuo (linked seats) idea of punishing clan members friends and
associates in addition to the perpetrator 47 As for the three bonds and five human relationships Chrsquou (1961) explained
hellip the five human relationships are but concrete types of reciprocal relationships derived from
the more general categories of ldquonoble and humblerdquo ldquosuperior and inferiorrdquo ldquoelder and youngerrdquo
ldquonear and remoterdquohellipThe first three relationships have also been called Sang-Kang the ldquothree
bondsrdquo by Han scholars (pp 236-37)
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 84
than philosophical contention it was a political struggle for supremacy and
domination in state ideology and hence state politicsrdquo (Chen 1999 p 12)
We can see now that the substantive expression of the legal culture of traditional
Chinese law is the conceptual thinking of traditional Chinese philosophies manifested
in Confucianism and Legalism As a result the concepts of li (ldquomoralityrdquo represented
by Confucianism) and xing (ldquopunishmentrdquo represented by Legalism) were intertwined
in codified traditional Chinese laws Compared with the legal culture of the common
law the legal culture of traditional Chinese law exhibits three distinctive features
First there are no such common law concepts as ldquorightsrdquo and ldquorule of lawrdquo in
traditional Chinese law the legal concepts and principles of which are mainly
philosophical in nature In comparing traditional Chinese law with the English law
Gu (2006) pointed out
While the conceptual division of abstract and concrete law transformed English law from an
administrative into a ldquolegalrdquo practice the lack of an abstract concept of rights and the transmutable
boundaries of original legal meanings determined the administrative features of Islamic and
Chinese law (p 4)
Secondly traditional Chinese law did not develop a system of precedents such as are
found in the common law Alford (1995) gives an explanation for this
Contrary to what one might initially expect the imperial Chinese legal system did not adhere to a
formal system of binding precedent although in fact magistrates and other officials involved with
the law did draw on compilations of prior cases as they reached and sought to justify their
decisions But on reflection the absence of binding precedent may actually have connoted an even
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 85
greater embracing of the pastmdashas the Confucian morality and wisdom of the ages that officials
were assumed to have cultivated in preparing for and taking the imperial examinations were surely
seen as a truer and more historically valid guide for making decisions than any set of rules
formulated or cases resolved by onersquos predecessors in office (p 22)
The prevailing philosophy of Confucianism thus became a hindrance for the
development of legal professionals and the system of binding precedents Despite the
fact that there was a large body of codified laws in traditional Chinese society it was
by no means a legally oriented society
Thirdly given its penal emphasis traditional Chinese law did not pay attention to
matters of a civil nature eg contracts property rights inheritance marriage etc
The legal system was made to serve state interests not to protect individual rights or
to resolve disputes among individuals ldquoThe Chinese neither saw public positive law
as the defining focus of social nor divided it into distinct categories of civil and
criminalrdquo (Alfrod 1995 p 10) As a result the civil law concepts and principles of
the common law are mostly absent in the Chinese language As for criminal law the
difference between traditional Chinese law and the common law is enormous
Though modern Chinese law refers to the law operating in China after the fall of
the last imperial dynasty there were attempts at legal reform in the late Qing dynasty
which had considerable impact on the social and economic development of early
modern China Chen (1999) called the late Qing reform ldquothe westernization of
Chinese lawrdquo since the pressure for reforming traditional values and systems led to the
introduction of ldquowestern economic cultural and political ideasrdquo by the late 19th
century (pp 17-18) The reform was conducted in two stages Chen (1999) notes
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 86
The first stage was to revise the old law with its focus on abolishing the cruel punishments which
then existed hellip the second-stage reform the making of new codes in line with Western laws was
carried out almost simultaneously hellip(p20)
Besides the focus on the reform of criminal law some elements of civil law were
beginning to take shape in China In 1901 the first Chinese company law became
effective introducing ldquothe idea of limited liabilityrdquo and it ldquotook a highly supportive
approach toward entrepreneurial endeavourrdquo (Alfrod 1995 p 48)
The revolution led by Sun Yatsen overthrew the regime of the Qing dynasty and
a Republican government was established in 1912 Legal reform which Chen (1999)
called ldquothe modernzation of Chinese lawrdquo was continued (p 23) The reform was
guided by ldquothree Principles of the PeoplemdashNationalism (minzhu) Democracy
(minquan) and Peoplersquos Livelihood (mingsheng)rdquo (p24) Compared with the Qing
reform the legislation of the Republican government took the Chinese traditions and
customs into consideration in ldquoadopting and adapting Western legal doctrines and
institutionsrdquo (p 28)48
The PRCrsquos legal system was built on the model of Soviet socialist law which
was much closer in form to the legal systems of continental Europe than to the
Common Law with considerable modifications in accordance with Marxist ideology
During the 1950s a large body of laws was comprehensively codified under Maorsquos
48 Chen (1999) holds that law reform of Republican government was more progressive compared with
the Qing reform He remarks
Besides its conservative approach to family and succession matters the Qing reform largely failed
to preserve certain ancient and deep-rooted customs such as the civil law institutions of Yung-tien
(a long-term lease) and Dien (a kind of usufructuary mortgage) (pp 27-28)
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 87
leadership Chen (1999) noted that PRC law experienced another stage of
development under Dengrsquos leadership especially since 1992 when ldquothe Party adopted
the notions of a ldquosocialist market economyrdquo and ldquoassimilation or harmonization with
international practicerdquo (p 49) With the codification of a series of laws such as the
Company Law (1993) the Foreign Trade Law (1994) the Insurance Law (1995) the
PRC legal system underwent many changes in keeping with international practice
Chen remarks
Taxation law joint venture laws intellectual property protection law and most recently the
Criminal Procedure Law and the Criminal Law have all undergone major revisions Further
China has now ratified a large number of international conventions dealing with international
economic relations especially intellectual property protection Thus Western scholars now find
familiar language in Chinese law since Chinese law in its forms structure and methodologies
has become unmistakably Western (p 55)
Paler (2005) also agrees that decades of legal reform of the PRC law represent ldquoa
significant attempt to produce a more orderly and open legislative system in Chinardquo a
modern legal system of legal rules that support its emerging market economy (p 302)
There are three major features of the legal culture of modern Chinese law compared
with that of the Common Law First the notion of rule of law which is a foundational
concept in the Common Law is something of an imported idea in modern Chinese
law and the same term carries a rather different meaning in the two different legal
cultures The legal principles and concepts are derived from the legislation which is
the primary source of law Secondly modern Chinese law modelled on the civil law
system shares the characteristics of the civil law system rather than those of the
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 88
common law49 In particular the basic principles and concepts of criminal law in
modern Chinese law are substantially different from those in the common law
Thirdly with the progress of legal reform certain branches of law including company
law insurance law and trade law show similarities with elements of the Common
Law We shall see that the feature of the PRC legal system is fundamentally socialist
but with a newly developed modern economic legal framework Despite the fact that
many of the basic principles and concepts in modern Chinese law are substantially
different from those of the common law borrowing from other legal systems and
transfer of foreign laws into China are both features of traditional and modern Chinese
law In the next chapter therefore we will investigate the transfer of the legal culture
of foreign laws into China since this can shed light on the translation of the common
law into Chinese
49 David amp Cohan (1985) gave two major reasons for this First it was attributed to the Europeanization
of China between the 19th and 20th centuries The other is the fact that the PRC had inherited the
Chinese legal tradition where the statutes or codes were highly valued throughout the imperial period
ie from the Qin Dynasty to the Qing Dynasty
Chapter 4
The Transfer of Legal Culture
41 Legal Transplant and the Transfer of Legal Culture
411 Introduction
We have noted that legal culture ie the conceptual thinking shared by legal
professionals is an essential yet inseparable component of any legal system The
transfer of legal culture can take place when the law of one country is moved to
another or when two legal systems come into contact Transposition of law from one
society to another is generally known as legal transplant While this is an extensively
researched area in comparative law in recent years legal transplant is as old as the law
itself Earlier legal transplants such as the transposition of Roman laws to Europe
offer a well-known example (Watson 1974) Since transplantation involves the
transfer of the conceptual thinking of the imported law legal transplant often brings
about a transfer of legal culture We will examine the relationship between legal
transplant and legal translation the causes of legal transplant and its role in the
transfer of legal culture In so doing we hope to arrive at a better understanding of the
theoretical background surrounding the transfer of legal culture in legal translation
Watson (1974) the founding scholar in modern legal transplant theory
described it as ldquothe moving of a rule or system of law from one country to another or
from one people to anotherrdquo (p 21) Watson identified legal transplant with legal
THE TRANSFER OF LEGAL CULTURE 90
borrowing and argued that the phenomena of legal transplant had ldquobeen common
since the earlier recorded historyrdquo (p21) According to Watson the object of legal
transplant is rules By ldquorulesrdquo he meant not just statutory rules but also institutions
legal concepts and structures (2001a)50 Watson held that legal borrowing can take
place between societies with very different political social economic and religious
conditions and that usually the borrowing is from the more developed and complex
system (2001b p 215)51 In analyzing Watsonrsquos concept of legal transplant Cottrrell
(2001) held that comparative legal history is the primary tool of legal research and
borrowing is usually the major element in legal change (p 71) 52
Legrand (2001) disagreed with Watsonrsquos definition of legal transplant however
contending that Watson reduced it to the movement of ldquorulesmdashwhich are usually not
defined but which are conventionally taken to mean legislated texts and though less
peremptorily judicial decisionsrdquo (pp 55-56) He argued that legal transplant was in
essence impossible since ldquowhat can be displaced from one jurisdiction to another is
literally a meaningless form of wordsrdquo (p 63) Cottrrell (2001) agreed with Legrandrsquos
criticism remarking
50 Watson Alan ldquoLegal transplant and European Private Lawrdquo Ius Commune Lectures on European
Private Law 2 (electronic version) Dutch Institute of Comparative Law
(httpwwwejclorg44art44-2html accessed on March 15 2008) 51 Watson also pointed out that law in writing was an obvious source for borrowing the reception of
Roman law (and of canon law) in Western Europe and the success of the Sachsenspiegel in medieval
Germany of the French code civil in Europe and Latin America are all powerful examples (2001b
p215) 52 Cottrrell (2001) summarized Watsonrsquos views thus firstly transplantation of legal rules between
legal systems was a principal explanation for the growth of law secondly social need was not the
decisive force in legal development thirdly legal changes were largely controlled by the internal legal
professional elites fourthly legal rules survived over long periods despite significant variation in the
social context on which they operate fifthly the development of some important bodies of law was
largely the result of legal history (pp71-72)
THE TRANSFER OF LEGAL CULTURE 91
hellip an emphasis on legal culture may highlight the difficulty or even impossibility of transplants
since a legal culture is not easily replaced by a different one and legal rules are understood in
relation to legal cultures (2001 p78)
As noted in section 312 Cotterrell (1997) rejected the concept of legal culture
and proposed to replace it with the term ldquolegal ideologyrdquo He was thus naturally
opposed to the concept of legal transplant since this hinged largely on a proper
definition of legal culture Watson (2001) however refuted Legrandrsquos view
hellip I believe I have shown that massive successful borrowing is commonplace in law hellip Legal
borrowing I would equate with the notion of legal transplant I find it difficult to imagine that
anyone would deny that legal borrowing is of enormous importance in legal development
Likewise I find it hard to imagine that anyone would believe that the borrowed rule would
operate in exactly the way it did in its other home hellip I have continually over more than a quarter
of a century insisted that what are borrowed and can be borrowed are legal rules principles
institutions and even structure (2001 pp 23-24)
In characterizing the relationship between legal tradition and legal culture for
the development of his legal transplant theory Watson (1991) remarked
The answers for understanding the nature of law and its place in society can only be found in the
legal tradition and legal culture (p 4)
We shall see that Cotterrellrsquos dismissal of the concepts of legal culture and legal
transplant is not convincing Just as legal rules should be understood as an element of
legal culture the concept of legal culture should be understood as an indispensable
THE TRANSFER OF LEGAL CULTURE 92
component in legal transplant Though Watson may well not have defined legal
culture he did consider it as the basis for understanding the nature of law and legal
transplant Since we define legal culture in this study as the conceptual thinking of
legal professionals of which legal rules are an integral part it is fair to say that legal
rules are also an inseparable part of legal culture and thus of legal transplant Though
legal transplants may not always be viable we can not simply dismiss them as
impossible History and a fair part of comparative law studies show that legal
transplants have indeed taken place
412 Legal Transplant Legal Imposition and Legal Translation
Legal transplant takes place for many reasons such as authority prestige
political and economic incentives and may take different forms in different countries
In an attempt to explain the phenomenon Sacco (1991) remarked
There are two fundamental causes of imitation (ie legal transplantation) imposition and
prestige Every culture that has faith in itself tends to spread its own institutions Anyone with
the power to do so tends to impose his own upon others Receptions due to pure force however
are reversible and end when the force is removed (p 398)
Likewise Bercowitz (2001) observed that ldquosome legal transplants were imposed
during occupation others were part of a voluntary reform process initiated by the law
receiving countryrdquo (p 8) A fairly wholesale transplantation of legal systems is
possible during an occupation even without any translation of the imported law into
the indigenous language However legal translation is usually the major conduit of
THE TRANSFER OF LEGAL CULTURE 93
legal transplant in the case of legal reform in the receiving country Therefore we
classify legal transplants into two kinds in this study legal imposition at the
socio-political level and legal translation at the socio-linguistic level
Comparative legal scholars have carried out extensive studies on the imposition
of law since the importation of foreign legal systems is widespread and poses
important theoretical problems In search of a definition of legal imposition
Lloyd-Bostock (1979) distinguished between ldquoexternally imposed law and law that
accords with internalized normsrdquo (p 10) She remarked
hellip externally imposed law would include cases ranging from particular instances of law within
an established legal system to the importation of an entire legal system form another culture It is
debatable whether a definition of imposed law should introduce further distinctions between
types of cases but there can be no doubt that explanation of compliance will need to take
account of the wider context in which law has been imposed (p 10)
Lloyd-Bostock opined that looking into the compliance with imposed law would be
an effective way of understanding the social consequences of legal imposition In
seeking to define the term legal imposition Okoth-Ogendo (1979) observed that ldquothe
use of that phrase might imply concern merely with the normative and institutional
legacies of colonialismrdquo (p 147) However his own view was that legal imposition
encompassed ldquoany situation where fundamental change is contemplated in society
through the medium of laws or legal institutions whose content is clearly contrary to
the perceived and accepted normative order of those whose behaviour it seeks to
regulate or changerdquo (p 147) From this perspective legal imposition resulting from
colonialism always gives rise to socio-political change in the society that receives the
THE TRANSFER OF LEGAL CULTURE 94
law Okoth-Ogendo went on to make an in-depth study of the imposition of English
property law in Kenya pointing out that ldquolegal imposition is a rampant practice in
Africardquo and that the ldquoimposition of law can be seen as an expression of dependency
relations between the Third-World (the periphery) and industrialized nations (the
metropolitan centres)rdquo (p 148)
In similar vein Kidder (1979) pointed out that ldquothe prototype of imposed law as
it seems most generally to be understood is the colonial situation where legal systems
are imposed from dominant cultures and forced on indigenous populationsrdquo (p 289)
A case in point is the imposition of common law in British colonies in South East
Asia Accompanied by nineteenth-century colonialism the imposed law radically
reshaped and pluralized the law of much of Africa Asia and the Pacific The research
of Harding (2001) provides a thorough description of legal transplant in South East
Asia where the imposed law survived Following the lead of Watson and other
likeminded scholars he remarked
hellip law in South East Asia has evolved out of legal transplantation which has on the whole
been successful if judged by the criterion of whether the law has stuck or come unstuck In
South East Asia the idea that the history of a system of law is largely a history of borrowing of
legal materials from other legal systems as maintained by Watson Pound and others is proved
remarkably accurate (p213)
The wholesale transplant of the common law system in Southeast Asia also includes
the case of Hong Kong since English law was imposed on Hong Kong after 1843 In
the case of Hong Kong the legal transplant met with a rather benign reception and as
THE TRANSFER OF LEGAL CULTURE 95
Epstein (1989) noted there was little interaction between Hong Kongrsquos legal system
and the laws of the Chinese Mainland after colonization He remarked
For a century and a half British colonial rule has insulated Hong Kongrsquos legal system from law
and legal change on the Chinese mainland Although early provision was made for the
application of Qing dynasty law in Hong Kong in practice the Qing codes had little if any
impact in Hong Kong after 1841 and even the role of customary law has been restricted to
family matters and land tenure in the New Territories (quoted in Wacks 1989 p 38)
Wesley-Smith (1994) held a different view with regard to the influence of
Chinese customary law however In the process of legal transplant colonial officials
typically endeavoured to eliminate customs they considered repugnant such as
polygamy payback killings suttee and many other kinds of practices they considered
uncivilized Yet customary laws continued to have some effect both in Hong Kong
and many other countries53 Wesley-Smith noted that ldquolsquoChinese law and customrsquo
despite its decline as a source of lawmdashmuch of it was abolished prospectively in
1971mdashstill plays an important role in modern Hong Kongrdquo (p 205) In the process of
legal imposition conflicts often emerge between the indigenous and the imposed law
although as already noted the imposition of the common law on Hong Kong was a
fairly well received legal transplant with the imposed law meeting little resistance
when it began to regulate the behaviour of the indigenous inhabitants However the
legal culture ie conceptual thinking about the common law could reside only in the
minds of legal professionals before the common law was translated into Chinese The 53 Harding (2001) gave an example from Singapore where the famous case known as the Six Widows
Case tried by the colonial court raised a crucial question of what kind of law was to be applied in cases
involving local custom the common law or the customary law The court finally decided the case
according to the Chinese polygamous marriage custom (p 210)
THE TRANSFER OF LEGAL CULTURE 96
transfer of the legal culture related to the imposed law can only fully effected until the
conceptual thinking of the imposed law is translated into the indigenous language and
made accessible to local laypeople
Legal translation as a form of legal transplant always involves the transfer of
the legal culture of the translated law at the socio-linguistic level It takes place when
a country or region borrows the legal system of another usually accompanied with
massive translation of the imported law Through legal translation the concepts of the
foreign law are introduced to the indigenous people Compared with legal imposition
legal translation as a form of legal transplant is a more fruitful way of transplanting
legal systems and transferring foreign legal culture since it imports the underlying
legal concepts into the indigenous language As Zhang (2003) pointed out legal
transplant by translation is the most common phenomenon in the course of legal
development in many countries Its history can be traced to the Old Roman Period (p
9) After the medieval period many western European countries such as France
Germany transplanted the Roman codes by way of translation In modern times many
Asian African and American countries have transplanted the laws of western
countries (p 9) Japanrsquos legal development also illustrates how the improvement and
modernization of one statersquos law may occur by way of translation During the Meiji
period there was massive translation of continental European laws into Japanese and
their reception took place in a completely non-European cultural juridical and
religious context
As noted in section 21 translation as cultural transfer usually requires that a
choice is first made between two basic translation strategies namely domestication
and foreignization through which the cultural concepts of SL may either remain
THE TRANSFER OF LEGAL CULTURE 97
un-transferred or be transferred Cultural transfer as domestication may result in
cultural appropriation to which Merry (1998) gave an explanation
The concept defines culture as contested historically changing and subject to redefinition in
multiple and overlapping social fields It emphasizes continual transformations in the meaning
and structure of law rather than any notion that law is embedded in a homogeneous and shared
culture It incorporates the possibility of resistance while recognizing that resistant practices
involve actions that appear to be accommodation and adaptation Changing the way culture is
conceived makes it possible to reimagine the relationship between law and culture Processes of
legal transplantation imposition and borrowing widespread during nineteenth-century
colonialism and contemporary globalization are central sites for examining this relationship
(1998 p 603)
Cultural appropriation can be seen as the resistance to the imported culture which is
changed in form and substance becoming mixed with the indigenous culture Cultural
transfer as domestication contrasts quite sharply with cultural transfer as
foreignization where the target culture accommodates the alien concepts and adapts
to the foreign culture
Legal translation as foreignization necessitates the assimilation of the legal
concepts of foreign laws as is the case with legal transplants in China China has a
long history of legal transplants dating back to the Late Qing dynasty when China
transplanted the German system of civil law Next Japans legal experience exerted
great linguistic and practical influence on Chinas reception of civil law before 1949
Moreover China transplanted the Soviet Unionrsquos legal ideas after 1949 The history
THE TRANSFER OF LEGAL CULTURE 98
of legal transplants in China can usefully elucidate the role that legal translation has
played
42 Transfer of the Legal Culture of Foreign Laws in China
421 Transplant of Foreign Laws since the Late Qing Dynasty in China
The introduction and translation of foreign legal texts into Chinese started since
the Late Qing period The systematic introduction of Western laws together with other
Western sciences commenced with the establishment of Tongwenguan in 186254 In
the Late Qing Dynasty the transformation of social relations demanded a new social
order Zhang (2003) notes how in the early 20th century when the Qing Code was still
in effect the Qing government decided to reform the law and transplant Western legal
principles into China (p 8) Legal translation played a significant role from 1896 to
1936 during which period legal concepts and legal principles of Western laws were
transplanted into traditional Chinese law thus laying the foundations for modern
Chinese Law
Meijer (1976) carried out a comprehensive research into the revision of criminal
codes in the Late Qing period The Qing government established the bureau for the
compilation of laws in 1901 and it set to work ldquotranslating foreign codes of Criminal 54 It is generally assumed that international law and the relevant vocabulary was introduced in China
mainly after the Japanese influence early this century Several other texts on international law were
however translated into Chinese between 1864 and the turn of the century Some of these were
translated by Martin and published by Tongwenguan such as Theodore Dwight Woolseys Introduction
to the Study of International Law (1877) and William Edward Halls A Treatise on International Law
(1903) (Svarverud 1998)
THE TRANSFER OF LEGAL CULTURE 99
Law and Criminal Procedurerdquo in 1904 (pp 9-11)55 During the law reform period ie
from 1901 to 1907 legal concepts and models were imported from Japan Germany
and other continental countries56 According to Meijer (1976) Shen Jiaben one of
the most important figures in the legal reform of the Late Qing Dynasty was
appointed in 1904 as one of the Commissioners (Xiuding Faluuml Dacheg 修訂法律大
臣) responsible for the Office of Codification (Faluuml Bianzhuan Guan 法律編纂館) (p
11) As the leader of the team of translators translating the foreign laws into Chinese
he held that the success of legal reform depended on the translation of the foreign
laws57 The criminal laws and criminal procedures of the civil law system were
studied and translated58 There were two main reasons for modelling the new law on
the continental legal system One was that the continental system inherited
ldquosomething of the old Roman Familiardquo which was similar to the focus of familism in
traditional Chinese society while ldquoAnglo-American Law emphasizes the individual as
against the familyrdquo (p 22) The other reason was that ldquothe concept of state authority
55 Meijer (1976) made a survey of important revisions on the old law which included the ldquosubstitution
of penal servitude for banishment the abolishment for torture and corporal punishment and abrogation
of some severe punishmentrdquo (pp19-37) 56 Chen (1999) noted that ldquoa constitutional reform which aimed at transforming the autocratic empire
into a constitutional monarchy was also begunrdquo (p19) Japanese model was then adopted and ldquoa series
of edicts concerning the establishment of constitutional government and a series of constitutional
projects and documents were issued by the Thronerdquo (p19) 57 According to Zhang (2003) a total of 180 books of foreign laws were translation into Chinese
among which there were 123 law books from Japan 29 from Britain 18 from America 18 from
German 11 from France 2 from Netherland 4 from Sweden 1 from Finland 2 from Russia and 1
from Mexico 58 In relation to the revised law Meijer (1976) noted
They did not only carry out some of the suggestionshellipas eg the change of beating with the
bamboo into fines and the abolition of torture they went further and obtained the abolition of the
cruel ways of capital punishment branding and collective responsibility in criminal matters the
abrogation of three hundred and forty four articles of the standard rules and the change of formal
capital punishment into penal servitude for some cases of homicide (p12)
THE TRANSFER OF LEGAL CULTURE 100
over its citizens as inherited from Roman Law also fitted well into the ultimate goals
of the legal reform to secure the emperorrsquos position permanently to alleviate foreign
aggression and to quell internal disturbancerdquo (p 22)
Apart from criminal law legal concepts of civil law in Western countries were
also transplanted into China from the Late Qing period on Meijer pointed out that
ldquoapart from the field of Criminal Law the Committee for the Compilation of the Laws
also produced a draft for the Bankruptcy Law and the well-known draft for the new
Law of Judicial Procedure both on the 24th of April 1906rdquo (1950 p 31) In his study
on Chinarsquos reception of concepts and elements of Western private law Epstein (1998)
also holds that ldquoforeign influences on Chinese Civil Law are broad and deeprdquo and he
seeks to ldquoillustrate a number of important features of Chinas reception of Western
legal conceptsrdquo (p 154) The history of Chinarsquos reception of Western civil law began
when the ldquoQing imperial government first attempted to transplant Western civil codes
into China at the turn of this centuryrdquo and ldquothe first successful codification of Chinese
Civil Law was promulgated by the Nationalist government between 1929 and 1930rdquo
(Epstein p 153)59 After 1949 China adopted the legal concept of the Soviet Union
that all law is public law deciding ldquoquite literally to banish the words lsquoprivate lawrsquo
from its legal vocabularyrdquo ldquoa textbook on economic law published in Moscow in
1977 was translated and republished in China in December 1980rdquo which ldquomarked the
59 In explaining Chinarsquos borrowing of Civil Law concepts from the west Epstein remarked
The distinction between criminal and Civil Law was first borrowed from the West during the Qing
codifications It was drawn first in procedural law n45 and finally in substantive law by
designating that the civil provisions in the revised Qing Code (Xianxing Xingluuml) of 1910 should
not be subject to punishments Thereafter China adopted the Japanese pattern of Six Laws which
clearly distinguished between private and public civil and Criminal Laws Despite the influence of
Soviet jurisprudence after 1949 the distinction has survived in substance if not in form in the
PRC (1998 p162)
THE TRANSFER OF LEGAL CULTURE 101
second reception of Soviet legal doctrine into Chinardquo (p 164) During the whole
process of legal transplant since the Late Qing Dynasty China adopted legal concepts
mainly from Germany and the Soviet Union and these set the standard for its legal
codifications This also explains why Chinese law is characterized by civil law
traditions After Chinarsquos economic reform in the late 1970s legal transplant by way of
translation was even more visible Suli (2004) remarks
Since the implementation of lsquoOpen and Reformrsquo in China in 1978 the translation of legal works
has been an important part of developments of the Chinese Law Most active legal scholars of
today have in certain stages of their academic careers translated some works or benefited from
the translation of legal works either directly or indirectly hellip Almost no scholar is totally free
from impacts of foreign laws hellip In this sense the legal science of China of today is basically the
result of legal transplants and the transplants have proved to be successful on the whole (p 97)
The Company Law of the PRC (1993) is a major example of continuing
transplant from Western laws among which Americarsquos corporate law was then a
prime source The profound effect of legal transplant on the development of the
Chinese law can be identified from at least two aspects One is the transplanted legal
concepts and legal principles of the civil law system which underlies Chinese law
The other is the analytical tools which have long been used in Chinas adopted civil
law doctrines to guide legislative drafting and which have in part become embodied
and embedded in the law In explaining Chinarsquos legal transplant and the interplay with
its legal culture60 Potter (2004) remarked that ldquoChinarsquos legal reform effort also
60 Concerning Friedmanrsquos definition of legal culture Potter (2004) remarked
THE TRANSFER OF LEGAL CULTURE 102
depends to a significant extent on dynamics of legal culturerdquo hellip thus analysis of
Chinarsquos legal culture would permit ldquohellip appreciation of the tensions between the
globalized systems of liberal legal norms from which many of Chinarsquos legal reform
efforts are drawn and deeply embedded systems of local norms and values (pp
474-75)61 In other words in the process of legal transplant Chinarsquos local legal norms
adapted selectively to foreign legal norms which were finding their way into Chinarsquos
legal culture Given Chinarsquos long history of legal transplant by way of translation it is
thus meaningful to enquire which aspects of the legal cultures of foreign laws have
been transferred in what form they have been transferred and in what way legal
translation could account for the successful transfer of the legal culture of foreign
laws
Legal culture maybe defined by reference to discourses of sociology and political science in terms
of customs values and opinions and ways of thought and behavior (Friedman 1975 15 Ehrmann
1976 Glendon 1985 Varga 1992) (p474)
However his perspective was ldquoto focus legal culture as a basis for understanding the relationship
between imported and local norms (Potter 2003b)rdquo (p474) 61 Potter (2004) argued that foreign laws especially international laws were transplanted into China It
was easy to assume that those laws with its familiar appearance had no difference with their originals
However it was not always the case He noted
Lubman and Peerenboom both remind students of the Chinese Law not to confuse what appear
to be familiar institutional forms in the operation of the Chinese legal regime with the
acceptance of related international norms As we struggle to understand the conflicted interplay
between imported legal forms and local legal norms ideas about selective adaptation and
attendant features of perception complementarity and legitimacy offer potentially useful
perspective form whence to proceed (p486)
THE TRANSFER OF LEGAL CULTURE 103
422 Transfer of the Legal Culture of Foreign Laws in China
As noted in section 22 of chapter 2 legal translation that seeks to transplant
cultural concepts specific to the original legal system is a good example of cultural
transfer as foreignization A case in point is the legal translation in the Late Qing
Dynasty in China which we have just sketched out We will now look at how the
foreign laws were translated during this period and the approach to translation that
was taken Shen Jia-ben had already observed that when Japan translated Western
laws semantic translation was initially adopted However the great number of
mistranslations that occurred had led to the eventual adoption of literal translation In
the case of China the task of translation was far more difficult since there were no
legal terms to express the legal concepts of Western laws Shen thus asked the
translators to strive for fidelity and fluency in translating the criminal laws of France
Germany Russia and Japan (Zhang p 180)62 For example when learning from the
criminal laws of other countries Shen strove to propagate the idea of a ldquolightrdquo
(xingqing) response to crimes by condemning the traditional punishment inflicted on
prisoners such as dismemberment or decapitation followed by the displaying of the
victimrsquos head in public63 We can see that when striving for fidelity to the foreign
62 Zhang (2003) held that legal translation was a very important channel for importing the legal
concepts of Western law into China She quoted Shen Jiaben as follows
參酌各國法律首重翻譯而譯書以法律為最難語意之緩急輕重記述之詳略偏全決
策為精訛立見從前日本譯述西洋各國法律多尚意譯後因訛誤改歸直譯中國名詞
未定移譯更不易言臣深慮失實務令譯員力求信達hellip (p 180) 63 In explaining how the translators deal with the terminological problem in the translation Meijer
(1950) also noted
hellipThe first deals with the term fa-hsing 罰刑 fine which the committee wanted to be changed
into fa-chin 罰金 on historical and logical grounds The first term means punishment of fine
but he word fa may also denote punishment so that the term might become meaningless the
THE TRANSFER OF LEGAL CULTURE 104
laws Shen wished to achieve conceptual semantic equivalence by adopting literal
translation instead of semantic translation which would result in creating new legal
terms in Chinese In such ways were linguistic adjustments made when transferring
the legal concepts of foreign laws into Chinese
As noted in section 222 of chapter 2 whenever a culture is transferred from one
language to another there is also a need for conceptual adjustment which invariably
results in the foreignization of the importing language Regarding this Meijer gave a
thoughtful account in his researching into the memorials written by Shen He
remarked
With the memorials Shen Chia-ben introduced a new criminal code in China A code based on
foreign concepts most which were alien to Chinese thought or which had in the course of history
been discarded as unsuitable for Chinese society The memorials are not a theoretical explanation
of the philosophical back-ground of a new law they are presented as remarks on the revision of
some of the principles of an existing law by borrowing from foreign law hellip Formerly the law was
according to the most accepted doctrine an auxiliary to education It was essentially a part of
ethics it derived its force from the moral code and served as a model for the judge being a
directive for the maintenance of the natural ordermdashtao The new law however reposed on totally
different concepts The law now became a set of rules given by the state in its capacity of keeper
of the public peace and order punishing any acts which were contraries to the minimum
standards of conduct required for an orderly society An offence now became officially an
offence only because the objective Criminal Law forbad it Violators of moral laws were no
second term is more specific meaning punishment-money taking fa in the meaning of
punishmentrdquo (p 52)
THE TRANSFER OF LEGAL CULTURE 105
longer interfered with as long as they stayed within the limits of the Criminal Lawrdquo (1950 pp
70-71)
Meijer here suggests that cultural transfer takes place on the metalinguistic level
rather than via a theoretical explanation of the philosophy behind the new laws
However it can be conceded that such a background still provides a theoretical
framework and working principles for transferring the legal culture of the foreign law
In other words we can understand foreign legal concepts by studying the extent to
which the memorials of Shen (and his colleagues) are explicit about what the newly
coined Chinese legal terms stand for and how they relate to the original legal system
For example Shen distinguished between criminal and civil affairs It ldquowas
established in the memorial asking for permission to print the code of 1910 The
distinction was based on the principle of Shen Chia-benrsquos Draft of the Code governing
Civil and Criminal Procedure of 1906 art 2 and 3 (cf p 43) but somewhat more
elaborated and preacutecisedrdquo (Mejier 1950 p 53) Therefore the memorials serve as an
important metalanguage for transferring the legal culture of the foreign laws
If we recall the discussion of Evans-Pritchardrsquos translation of Azande in section
223 of chapter 2 we shall be reminded that cultural transfer must be effected at the
metalinguistic level As can be seen from Chinarsquos long history of legal transplant by
way of translation the legal concepts and legal principles of foreign laws have been
transferred into Chinese This also shows that successful transfer of the legal culture
of foreign laws requires adjustments to be made in the target translation language and
must involve conceptual transfer at the metalinguistic level
Chapter 5
The Language of the Common Law
51 The Translatability of the Common Law
As we noted in section 412 of chapter 4 legal transplant in Hong Kong has
taken the forms of political imposition and legal translation the former as a result of
colonization and the latter after the recovery of sovereignty by China64 Wesley-Smith
(1993) gave a detailed account of how English law was imported to Hong Kong after
it became a British colony He noted
One of the first things to be done therefore was to introduce English law into Hong Kong At
one stroke was thus imported a comprehensive collection of rules principles standards and
concepts appropriate for the trading post Britain had established From 1846 to 1966 the
formula by which English law was received into Hong Kong applied all the laws of England
which existed on 5 April 1843 the day Hong Kong obtained a local legislature (p 33)
Despite the controversy over the applicability of the common law it was kept up to
date by constant legislative reception Wesley-Smith rightly pointed out which aspects
64 The Department of Justice explained why legal bilingualism had to be launched in Hong Kong as
follows
In keeping with the Basic Laws provisions on bilingualism all legislation in Hong Kong is enacted in
both Chinese and English and both versions are accorded equal status Thanks to the bilingual
legislation programme begun in 1989 authentic Chinese texts have been completed of all pre-existing
legislation which had been enacted in the English language only and Hong Kongs statute book is now
entirely bilingual ( httpwwwdojgovhkenglegalindexhtm accessed on September 2 2007)
THE LANGUAGE OF THE COMMON LAW 107
of English law were imported into Hong Kong ie the rules principles and concepts
which constitute the substantive contents of the legal culture of the common law as
described in chapter 3 As a matter of fact these rules principles and concepts of
English law had been imposed on the operating legal system in Hong Kong long
before the law was translated into Chinese65 The decision to translate the common
law into Chinese signified a yet deeper transplant of the common law into Chinese
culture this time by way of legal translation instead of political imposition The task
of translating the laws of Hong Kong into Chinese was completed in a timely manner
by May 1997 However the accomplishment of this mammoth task has not ended the
controversy over the translatability of the common law into Chinese In researching
the translation of the common law into French Nguessan (1995) realized that the
terms and concepts of the common law were specific to that system itself and asked
ldquoIf such is the case how is it possible to transfer the law from one language to another
if those two languages express the law of two different countriesrdquo (p iii) [] But as
we have pointed out in chapter 2 this is not the case with the translation of the
common law into Chinese This translation was carried out within the same common
law jurisdiction of Hong Kong and therefore the question of one language expressing
the law of two different jurisdictions simply did not arise The question with which
Hong Kong was and is faced is purely a question of translation namely ldquoIs it possible
to translate the law of one language into another If so howrdquo
65 As for the application of the common law to Hong Kong Wesley-Smith noted
In effect the cut-off date of 5 April 1843 applied in respect of statutes all Acts contained in the
English statute book on that day provided they were general and not purely local in nature and
were not suited to the circumstances of Hong Kong or of its inhabitants were automatically in
force in Hong Kong (1993 p 33)
THE LANGUAGE OF THE COMMON LAW 108
As far as the first question is concerned critics of the bilingual legislation in
Hong Kong were suspicious of the very possibility of translating the common law
especially its terminology into Chinese One common misconception is to regard
English as the only language suited to express the concepts of the common law and
thus reject the possibility of translating the English common law into Chinese Ujejski
(1989) subscribing to Whorfrsquos theory of linguistic relativity expressed his deep
concern about the future of English language in Hong Kong law He remarked
If as Whorff claimed language and thought are inextricably linked and if language including
legal language is indeed a reflection of a culturally based lsquoconceptual realityrsquo we may need
seriously to consider what effects cultural differences may have on the future of the Common
Law in Hong Kong and thus on the language of the law in Hong Kong (p 183)66
For Ujejski the crux of the issue lay in the ldquocultural-philosophical gaprdquo between the
English common law and the Chinese language67 It is true that the linguistic and
66 Contending that it would be impossible to translate the English Common Law into Chinese Ujejski
quoted Cuthbertrsquos following remarks to support his argument
The institution of law in Hong Kong combines a system of rules with a system of institutions
derived from England In the historical evolution of English law philosophical moral and
ethical percepts cannot be abstracted from linguistic structure cultural values and forms of
human behavior Its roots can be traced back to ancient Greece and writings of Plato and
Aristotle Concepts such as lsquotruthrsquo lsquomoralityrsquo lsquoresponsibilityrsquo and lsquocrimersquo are locked both
into precept and language But in 1997 this entire cultural world view will be changed
Although the technology of charters and joint agreements will attempt to operate
homeostatically between the two value systems (capitalist and socialist) the Chinese
population of Hong Kong is already lsquoreality-compromisedrsquo since its semantic and conceptual
vocabularies are rooted to Chinese tradition custom and beliefs It is therefore difficult to
envisage how the present legal system and with it the institutions it supports can possibly
remain in even a fragment of its original state (p 183) 67 Ujejski quoted Michael Thomas a former Attorney General of Hong Kong who expressed a similar
view
THE LANGUAGE OF THE COMMON LAW 109
cultural differences between English and Chinese pose great difficulties in translating
the English common law into Chinese However constraints in translation do not
amount to the untranslatability of the common law In refuting those who upheld the
untranslatability of the common law for reasons based mainly on ldquolinguistic
relativismrdquo which ldquoinsists on the impossibility of dissociating what was expressed in a
language (content) from how it was expressed in that language (form)rdquo Roebuck and
Sin (1993) argued
It cannot be denied that languages have semantic-syntactic gaps Language A has a word for
which Language B has no syntactically unanalysable equivalent hellip examples of
semantic-syntactic gaps show only that symmetry rarely exists between language hellip
Translationrsquos primary task is to convey the various types of meaning which are independent of
the conventionalized arbitrary features of human languages And exact translation as a
meaningful concept must be understood in that context and as a linguistic activity must
proceed under those constraints hellip Unlike poetry which often exploits the special phonological
morphological and syntactic features of a language to achieve aesthetic effects and is therefore
language-bound to some extent law as a social institution is not dependent on language in the
same way hellip It prescribes human behaviour hellip Human behaviour hellip can be described with
similarly sufficient precision in any language The behaviour prescribed and regulated by the
Common Law is no exception (pp 200-02)
The important point to note here is that the law prescribes and regulates human
behaviour in ways which can be described not only in English but also in any other
The difficulty [of translating English statutes into Chinese] lies in the linguistic and cultural
difference between English and Chinese It is a known fact that different cultural communities
organize their internal relationships in different ways This results in legal contexts that differ
both in conception and expression (p 184)
THE LANGUAGE OF THE COMMON LAW 110
language just as the rules of a particular game can be laid down in different languages
such that players relying on different language versions of the rules can play the same
game There is no a priori reason why Chinese cannot be used to express the legal
concepts of the common law Semantic equivalence is achievable in legal translation
as noted in section 223 of chapter 2 Aiming to achieve semantic equivalence the
legal translator should import the source legal culture into the target legal culture an
approach which requires linguistic and conceptual adjustments of the translating
language In the same manner Chinese as the translating language can be expanded to
include newly introduced cultural concepts of the common law
Wong (1999) also denounced as bigotry the view that English is the only
language capable of expressing concepts of the common law He points out that Latin
and French were the languages of court proceedings in England before English took
over the dominant position and that ldquothe reason for the spread of English is political
cultural or economic rather than linguisticrdquo (p 31) However what most troubled
Wong was Section 10C (1) of Chapter 1 of the Laws of Hong Kong which stipulates
as follows ldquoWhere an expression of the common law is used in the English language
text of an ordinance and an analogous expression is used in the Chinese language text
thereof the Ordinance shall be construed in accordance with the common law
meaning of that expressionrdquo (Sect 10C Cap1) Wong (1999) expressed his deep
suspicion of such a semantic interpretation of the translated laws in Hong Kong
Thus constricted the Chinese equivalents of common law expressions are mere symbols in the
most unsophisticated sense of those words They have no meaning of their own however
beautifully rendered they might seem and however much their creator thinks they resemble the
original It matters not one jot (p 31)
THE LANGUAGE OF THE COMMON LAW 111
Actually if this remark is true the same strictures could be applied to any ordinary
native speaker of English who has no training in and no knowledge of the common
law In his case as well the technical expressions he comes across are no more than
ldquomere symbols in the most unsophisticated sense of those wordsrdquo and mean nothing to
him at all In the same vein should we not perhaps blame those who create these
wordsmdashlaw drafters and judgesmdashfor conjuring up such meaningless symbols
Evidently Wong has missed the whole point While it is no doubt true that the
translatorrsquos task is to give a ldquobeautifulrdquo rendition of common law expressions and
provide the closest possible Chinese equivalents the legal meaning of these
equivalents can only be properly construed in the light of the entire semantic
referential system of the common law Secondly Wong is wrong in his explanation of
how language works The ldquomere symbolsrdquo of the Chinese equivalents of common law
expressions are by no means ldquoconstrictedrdquo Instead the Chinese equivalent of a
common law term is defined as the equivalent for its counterpart in English
To provide Chinese equivalents of common law terms is a vital step in
transplanting the common law into Chinese History tells us that whether it was the
Christian Bible or the Buddhist scriptures that were being translated the translator had
to adjust the Chinese language in such a way that foreign concepts could be
assimilated into its conceptual system As a result the translated text was invariably
incomprehensible at the initial stage of assimilation as Sin (1998) put it ldquohellipopaque to
the uninitiated eyesrdquo (p 138) But now the Chinese equivalents of these biblical or
Buddhist concepts have become part of the Chinese language and culture This is also
the case with the common law in Chinese To sum up the problem at issue here is
neither the translatability of the common law nor why it should be translated but how
common law Chinese could be developed with a view to transferring the legal culture
THE LANGUAGE OF THE COMMON LAW 112
of the common law into Chinese The whole case by no means ldquomatters not one jotrdquo
Instead it matters a lot We will further discuss the second question in the following
sections
52 Legal Terminology and Legal Concepts
As has been shown in the previous chapter transferring the legal culture of foreign
laws into China has plenty of precedent Legal concepts and legal principles of the foreign
laws have been imported into Chinese since the Qing Dynasty To transfer the culture of
the common law ie its legal concepts and legal principles into Chinese is thus by no
means a novel venture As we know legal concepts of the common law are specific to
that system and are expressed by means of in its specific legal terminology In the case of
Hong Kong when the Official Languages Ordinance was amended in 1987 to stipulate
that the laws of Hong Kong be available in both Chinese and English the translation of
the common law terminology posed a serious challenge In the following sections we will
look at the specific features of common law English in which legal concepts and legal
principles are embodied and examine the specific problems in translating the Common
Law into Chinese from the aspects of the legal lexicon legislation and case law We will
first investigate the theoretical aspects of the terminology and the relationship between the
common law terminology and the legal concepts they stand for
THE LANGUAGE OF THE COMMON LAW 113
A study of terminology68 calls for an understanding of the form-meaning relationship
of the terms since it forms the basis of our inquiry into the relation between legal concepts
and legal terminology69 Since a word is a lexical unit constituting a term the study of
words constitutes the basis for the study of legal terms According to Saussure the
linguistic sign has two sidesmdashthe signal (the word form) and the significance (the concept)
while the word as a linguistic sign is composed of the word form (the signifier) and the
word meaning (the signified) (1986)70 An essential concept can be expressed and
lexicalized as (and in the form of) a noun a verb or a descriptive adjective In other words
a noun verb and descriptive adjective can signify the same essential concept71 That
concepts and word forms are not equivalent is shown by the fact that one word can have
more than one meaning in the same language72 Lexical relations could thus be illustrated
68 In search of a theory of terminology Sager (1990) defined terminology
hellipas the study of and the field of activity concerned with the collection description processing
and presentation of terms ie lexical items belonging to specialized areas of usage of one or more
languageshellip(p2) 69 A word is typically a single lexical unit while a term could be composed of a single word or a set of
words Terminologies are the technical or special terms used in business art science or special subject
Thus terms used in the language of the law consist of general terms and terms used pertaining to the
special context of the law which can be regarded as its terminology 70 ``Word form will be used here to refer to the physical utterance or inscription and ``word meaning
to refer to the lexicalized concept that a form can be used to express 71 We find that each essential concept when examined carefully has a root expression as a noun a verb
or a descriptive adjective The expression of a concept begins in one of these three word classes
However by affixing appropriate fragments each of these three word classes can (usually) be
transformed into another Conversely by removing these affixes a root expression can be revealed
Thus the underlying essential concept can be said to be independent of any specific word class
Alternatively we could say that all three word classes (noun verb and adjective) provide the same
expression of an essential concept 72 Each meaning of the word represents a different concept Such a word is called polysemy which
means that a word with (at least) two meanings yet sharing a lexical form According to Leech
ldquoSynonymy and polysemy are relation between form and meaning (a) Synonymy more than one form
having the same meaning (b) polysemy the same form having more than one meaningrdquo (1981 p94)
THE LANGUAGE OF THE COMMON LAW 114
according to the analysis of the different meanings of one word which Leech (1981)
defined as ldquoa process of breaking down the sense of a word into its minimal componentsrdquo
(p 89)73 In this regard componential analysis is very useful in understanding the relation
between concepts and words74 The problems of the translation of terminology hinge on
conceptual equivalence since there is not always a correspondence between pairs of terms
in the source and target languages The layperson usually believes that sound knowledge
of the source and target languages and a good dictionary are sufficient for translating a
term in question but even if this were wholly true it would be is in no way sufficient in
technical translating where the translation process is concerned with achieving conceptual
equivalence between two terms75 The degree of conceptual equivalence which exists is a
function of the extent to which the intentions of two or more concepts overlap Typical
degrees of equivalence include 73 Leech said
The meanings of the individual items can then be expressed by combinations of these (semantic)
features
man +HUMAN +ADULT+ MALE woman +HUMAN +ADULT - MALE
boy +HUMAN -ADULT + MALE girl +HUMAN ndashADULT- MALE
These formulae are called the COMPONENTIAL DEFINITIONS of the items concerned they
can be regarded in fact as formalized dictionary definitions The dimensions of meaning
themselves will be termed semantic oppositions (1981 pp89-90) 74 Nida (1975) supplemented the approach of componential analysis proposing that there are three
fundamental classes of components They are
(1) the common components ie those features which are shared by all the meanings being
compared and which accordingly constitute the basis for bringing such meanings together (2)
the diagnostic components ie those features which distinguish the meanings of any set and (3)
the supplementary components ie those additional features often connotative which are
significant in describing all the aspects of a meaning but which may not be strictly necessary in
contrasting a particular set of meanings (p182) 75 Since there used to be doubt that a true translation equivalence is possible because of the difference
of meaning of corresponding words in the two languages while in practice translation equivalence does
exist in the sense that translators in their daily operation select term Y in the TL (target language) as the
translation of term X in the SL (source language) and so one could say that X and Y are translation
equivalents
THE LANGUAGE OF THE COMMON LAW 115
(1) Complete equivalence a term in SL whose concept is the same as the term in TL The
two terms are thus judged to be equivalent
(2) Partial equivalence this can be further divided into two types One is narrower
equivalence where the concept of the term in TL includes fewer characteristics than
that of the term in SL against which it is being measured The other is broader
equivalence where the concept of the term in TL includes more characteristics than
that of the term in SL against which it is being measured
LanguageLanguage
Areaof Shared
Concept
Source Target
Figure 52 Different conceptual divisions across languages
(3) Non-equivalence the term in the SL whose concept does not exist in the TL
The foregoing discussion of conceptual equivalence is directly relevant to the
translation of terminology In cases when one linguistic form in the original language
represents several different concepts which are lexicalized in different linguistic forms in
the translating language such concepts should be understood according to the original
referential system In pointing out the significance of the referential system of the
terminology Sager (1990) remarked
THE LANGUAGE OF THE COMMON LAW 116
A theory of terminology is therefore primarily concerned with a referential system which relates
knowledge structures to lexical structure and defines the constituent elements of each type of
structure (p 14)
For Sager a theory of terminology inevitably involves a theory of ldquoconceptrdquo and
ldquoreferencerdquo as the concept conveyed by an item of terminology can only be construed in
its reference Based on the above definition the common law terminology which is
legally and culturally specific to the common law should be appropriately regarded as a
semantic system ie scientific expression of the system of common law concepts
Accordingly the study of common law terminology is the study of the relationship of the
linguistic signs and their concepts with special reference to common law culture An
investigation into the translation of the common law terminology into Chinese in terms of
cultural transfer will ultimately focus on the translated linguistic signs and their semantic
referential system
We can thus justifiably say that common law terminology is the lexicalized
expression of the concepts built into the common law As Carter (1994) points out
Basic concepts hellip build up in law as cases accumulate hellip they [concepts] do exist in law Often they
turn out to be sufficiently fixed and stable so that lawyers can engineer from them secure plans for their
clientsrdquo (pp 142-143)
This illustrates how significant the existence of legal concepts is in the common law and
how decisive the use of them is for lawyers In the common law legal concepts are
lexicalized or expressed by legal terms The translator has to identify the concept and the
referent that the word in the source language represents But if the translator fails to
THE LANGUAGE OF THE COMMON LAW 117
distinguish all the different concepts and referents that the word in the source language
can stand for she may end up selecting a word in the target language that represents the
wrong concept and referent
Therefore one of the difficulties that the translator may encounter in translating legal
terms is the problem of non-equivalence In some cases the legal concepts that are
expressed by the legal terms do not exist in Chinese There are no words in Chinese to
express some of the most elementary notions of the common law The terms the common
law and equity are only two of the examples There is no system of the common law
and equity in the Chinese legal system (neither in the PRC nor in Taiwan) In addition
many types of institutions proper to the common law have no direct counterparts in China
eg ldquoMagistraterdquo ldquoLands Tribunalrdquo and many others) In other cases partial-equivalent
terms also pose difficulties to the legal translator since one legal term can have both a
specific legal meaning and an ordinary meaning at the same time eg the term
ldquoconsiderationrdquo An equivalent for the ordinary meaning which is shared in Chinese can
be found but the specific legal meaning does not exist in Chinese Could such a Chinese
equivalent if selected as the translation convey the same legal meaning in the common
law For example transferring the expression used for seemingly similar institutions eg
ldquohigh courtrdquo risks blurring the differences between these institutions The common law
term high court could be translated into Chinese as gaodeng fayuan (高等法院)
However this very term as used in the PRC refers to a different legal institution operating
under a socialist legal system Therefore the Chinese equivalent gaodeng fayuan (高等法
院) for the common law term ldquohigh courtrdquo certainly does not mean the same as the
Chinese term gaodeng fayuan (高等法院) as it is already used in the PRC Gaodeng
fayuan (高等法院) as the translation for the common law term can only be properly
construed with reference to the common law system
THE LANGUAGE OF THE COMMON LAW 118
To propose appropriate translation strategies and techniques in translating common
law terms into Chinese requires a clear understanding of the vocabulary used in the
common law in the first place The vocabulary of the common law is multifarious
including as it does terms referring to legal institutions terms referring to legal personnel
terms employed in different branches of law and of course words used in everyday life
The question is how best we should categorize them While different criteria are possible
a classification in line with the relationship between the linguistic form and the legal
concept could be of great direct help and could also hold relevance for further
investigation of translation equivalence in general The classification of the common law
vocabulary discussed in this section will thus be based on the analysis of the term and
concept relation made previously76
(1) Technical terms also called terms of art these are terms used exclusively in the legal
sphere and have no application in ordinary language and they make up a significant
part of common law terminology As terms of art their technical meaning needs
scrutinizing when being translated as they are unique to the common law and have no
equivalent in Chinese It should be noted that most common law terms of Latin or
French origin belong to this category They can be divided into two sub-categories
(a) Technical terms that represent concepts constructing the body of the laws77
(b) Technical terms that represent concepts relating to the judicial mechanism78
76 Alcaraz and Hughes (2002) also divide legal vocabulary into three categories namely ldquopurely
technical vocabularyrdquo ldquosemi-technical vocabularyrdquo and ldquoeveryday vocabularyrdquo (pp154-65) 77 Selected examples include demurrer estoppel fee simple fee tail laches mens rea reprieve
trespass overrule trover and waiver
THE LANGUAGE OF THE COMMON LAW 119
Semi-technical terms these are common English terms which when used in a legal
context acquire a specific legal meaning Such terms are thus polysemous and more
difficult to identify As proposed by Sin (1998) they can be further divided into three
linguistic sub-categories
(a) Terms where the legal meaning is fully shared with the core meaning79 Core
meaning may be used to illuminate the meaning of other senses and all other
senses may be derived from this core meaning combined with contextual
information such as abandonment (fangqi 放棄) attempt (qitu 企圖) confession
(gongren 供認) defence (mianze bianhu免責辯護 kangbian 抗辯) negligence
(shuhu疏忽) public place (gongzhong defang 公眾地方 gongzhong changsuo
公眾場所)
(b) Terms where part of the legal meaning overlaps with the core meaning such as
consideration (daijia 代價 ) discharge (shifang 釋放 ) malice (eyi 惡意 )
representation (shenshu shu 申述書 chengshu 陳述) remainder (shengyu quanyi
剩餘權益)
(c) Terms where the legal meaning deviates completely from its core meaning eg
personal representative (yichan daili ren 遺產代理人) warranty (ciyao tiaojian
次要條件)
78 Selected examples include affidavit certiorari defendant fieri facias habeas corpus mandamus
metes and bounds plaintiff serve proceedings and voire dire 79 By core meaning we refer to the central or most fundamental concept that links the principal senses
of a word to its various other senses
THE LANGUAGE OF THE COMMON LAW 120
(3) Everyday vocabulary terms which are common or ordinary in English They are used
both in special context and in everyday common language and have no specialized
meaning in the common law
Historically and politically the language of the laws of Hong Kong was exclusively
English The Chinese legal terms employed in the PRC legal system and Taiwanrsquos
German-based civil legal system were distinct from those in common law English and as
a result no equivalent legal terms existed in Chinese To achieve conceptual equivalence
in translating terminology the translator has to generate a term in the target language
which can express the same concept as the term in the source language When
terminological concepts are shared in the source and target language the translatorrsquos job
is to find the conceptual equivalent But where one concept in the source language does
not exist in the target language the translator encounters a greater problemmdasha new term
in the target language has to be created which is capable of expressing the same concept
as the original term in the source language
53 The Language of the Legislative Texts and Legal Bilingualism
In the common law legal culture the notion of statutes as the primary source of law
is a recent development whereby an identifiable and sovereign legislature makes all the
rules by which disputes are resolved Making law by legislation is already an
indispensable part of the common law system as noted by Hiltunen (1990) ldquoNowadays
of course judicial principles are laid down through parliamentary legislation in many
areas where there is no tradition in the common lawrdquo (p 16) Section 4(1) of the Official
Languages Ordinance (Cap 5) in Hong Kong stipulates that that all ordinances shall
THE LANGUAGE OF THE COMMON LAW 121
subject to certain exceptions be enacted and published in both official languages ie
Chinese and English The statutory law of Hong Kong before 1997 is derived from the
common law legislation Most of the legislation remained intact after 1997 with little
being repealed or revised The official website of the Department of Justice of Hong
KongmdashBLISmdash is a comprehensive database for updated bilingual laws information and
most of it ldquocontains the statutory Laws of Hong Kong and selected constitutional
documentsrdquo80
For the legislative translator gaining a clear understanding of the language of and
the legal culture embedded in the legislation is a prerequisite to maintaining the legal
meaning intact It is argued that the language of statutes is one of the most complex forms
of language perhaps the most complex Some of these complexities result from the way
in which the law developed historically (Mellinkoff 1963) and some were no doubt due
to bad drafting Yet legislative language as a whole has won a defence from some
linguists
Legislative discourse cannot be said to be purely or wilfully esoteric or archaic or unintelligible as
its critics often say It constitutes a rational functional stylemdashmore accurately it is rational
because it is functional (Maley 1987 p 46)
The lexico-grammatical choices in legislative writing come from the goal of legislation to
provide certainty This requires that the language of legal rules should be precise and
explicit However in reality it is impossible for a legal rule to be so precisely framed that
80 BLIS website httpwwwlegislationgovhkindexhtm accessed on April 16 2008
THE LANGUAGE OF THE COMMON LAW 122
it encompasses all possibilities Therefore against the goal of certainty must be balanced
the goal of flexibility This is achieved through the use of words of general classification
such as place building or vehicle where class membership is open and through words
that allow for a degree of interpretation such as wilful or reasonable A balance between
certainty and flexibility can also be achieved through the interweaving of numerous
qualifications with the main provision This leads to very long sentences that cannot
easily be replaced by shorter sentences at least not without compensating in another
fashion (Bhatia 1994) Another characteristic of statutes noted by linguists is their
relationship with other related statutes ie their intertextuality Intertextuality in statutes
can be realized in a number of different ways through textual mapping devices for
example ldquoin pursuance of section 111 of this Actrdquo (Bhatia 1987) and through complex
prepositions such as ldquoby virtue ofrdquo and ldquoin accordance withrdquo (Swales 1982) They allow
the draftsperson to reduce the amount of information in an already extremely dense text
and signal to the reader where this information can be found In addition they explicitly
locate a statute in the context of preceding legislation and remind the reader of the wider
context in which the statute has to be read
Two other distinct features of legislative language must be noted its normative
nature and its instrumental purpose Legislation is made to confer rights define duties
and stipulate prohibitions purporting to be prescriptive directive and mandatory
Each legislation may contain one or more legal rules or legal norms delivering the
above functions Thus legal rules create legal relationship and identify in what
situation the legal relationship occur Vandevelde (1996) explains how legal
relationship is created in legislative language
THE LANGUAGE OF THE COMMON LAW 123
In general rules of law bear the form lsquoif x then yrsquo meaning that if these facts occur then this
legal right or duties arises Rules of law thus have a factual predicate and a legal consequence (p
19)
Therefore statutes themselves are the rules of law bringing about certain rights and
duties In terms of the basic elements of legal rules Šarčević (1997) analyzed the
famous English barrister George Coodersquos contention that ldquoall legal rules contain the
following four elements legal subject legal action case and conditionsrdquo (p 136)
She agreed with previous criticism of Coodersquos definition of the elements of legal rules
as too rigid since the two elements of case and condition could be combined into a
fact-situation while the other two elements ldquoconstitute the so-called statement of lawrdquo
but noted that ldquoit is significant that he singled out the legal action as the most
important element of a legal rulerdquo (p137) Šarčević (1997) subscribed to the more
recent development proposed by Kelsen and his followers who analyzed the
ldquoprescriptive and descriptive elements of legal rules or normsrdquo and Weinbergerrsquos
assertion that legal rules comprise ldquodescriptive fact-situation (propositional content)
and a prescriptive statement of law (normative content)rdquo (p 137) Thus the legal
translator must identify the normative content of the legislative language The
instrumental purpose of the legislative language is based on the underlying policy that
the legislature intends to promulgate Most statutes address matters of public policy
The public policies that the legislature intends to promote are considered as the
underlying policies on the basis of which rules of law are built The underlying
policies are the intent of the lawmakersmdashwhat kind of rights and duties they purport
to create and what remedies they decide to offer Underlying policy is of great
significance to legal reasoning It was the key element helping to understand the
statutes detect the intent of the legislature and analyze the application of the statutory
THE LANGUAGE OF THE COMMON LAW 124
rules As Bhatia (1983) put it legislation was the law ldquohellipto do justice to the source
rather than to facilitate comprehension of the unfolding text by any particular
readershiprdquo(p 9)
Consequently law is viewed as a normative social practice while the language
of the law being a specialized language written to regulate administer or mediate
the citizen of certain society is declarative or imperative in nature Approaching the
normative nature of the legal language from the pragmatic dimension the speech act
theory inspired by JL Austin and further developed by Searle is appropriate to
explain how the language of law is supposed to guide human behaviour and how it
can give rise to reasons for action The legal speech act is an illocutionary act usually
marked by a performative verb
Hence I shall argue that a legislative textmdasha statutemdashis a rule-enacting document The text as a
whole is considered a speech act with the illocutionary force of enactment this emerges from an
analysis of the language of what is known as the enacting formula of a statute which is an
explicit performative The constituent parts of a statute hellip may be hellip speech acts with the
illocutionary force of ordering permitting or prohibiting as indicated by the modal verb in the
main clause of the sentence (Kurzon 1983 p 51)
The speech act of ordering is typically performed by the use of the modal ldquoshallrdquo
which shows ldquohellip the obligatory consequence of a legal decision and [is] not
simply hellip a marker of future tense which is its normal functionrdquo (Crystal and Davy
1969 pp 206-7) The use of the modal ldquomayrdquo has the illocutionary force of
permission while ldquoshall notrdquo expresses the illocutionary force of prohibition In
considering the legal speech act Šarčević (1997) observed
THE LANGUAGE OF THE COMMON LAW 125
Translation problems arise because legal speech acts cannot be translated literally thus
preventing the translator from simply using the same form of the verb in the target text hellip
Pigeon repeatedly warned hellip against using the future tense in French to translate the English
imperative lsquoshallrsquohellip( p 137)
Bilingual legislation in Hong Kong at present means the enactment of new laws
in two languages namely English and Chinese since the translation into Chinese of
ordinances previously enacted in English has already been accomplished The present
drafting practice in Hong Kong already includes ldquoa translation process since the
English text is normally drafted first and then rendered into Chineserdquo (Lee 1996
p156) In the bilingual legislation context of Hong Kong the translator as both
message receiver and sender is required to construe the English legislation accurately
in such a way that Chinese version is as authentic as the English one81 This means
that the Chinese translation of the English common law must bear the same legal
meaning and have the same legal effect considering both the requirements and the
goals of the translation82 There is a basic presumption for this goalmdashthe presumption
81 ldquoSection 4(1) of the Official Languages Ordinance (Cap 5) now provides that all ordinances shall
subject to certain exceptions be enacted and published in both official languages The Law Drafting
Division of the Department of Justice (formerly known as the Legal Department or the Attorney
Generals Chambers) is responsible for preparing the two language texts of all ordinances and
subsidiary legislation introduced by the Government The first bilingual ordinance was the Securities
and Futures Commission Ordinance (Cap 24) enacted in April 1989rdquo (BLIS website A paper
Discussing Cases Where the Two Language Texts of an Enactment are Alleged to Be Different) 82 ldquoSection 10B (1) states the fundamental principle of equality between the two language versions of
our laws It provides that both language texts of an ordinance shall be equally authentic and the
ordinance shall be construed accordingly This means the Chinese text is neither subordinate to nor a
mere translation of its English counterpart (BLIS website A paper Discussing Cases Where the Two
Language Texts of an Enactment are Alleged to Be Different provided by the Law Drafting Division of
the Department of Justice)
THE LANGUAGE OF THE COMMON LAW 126
of same meaning in bilingual texts83 As elucidated by the Law Drafting Department
the very aim of legal bilingualism is ldquoto introduce common law concepts to the
Chinese language hellip Reference must be made to the meaning as it is found in the
common law The common law must be taken as the semantic reference schemerdquo84
Therefore two legal texts are stipulated to have the same meaning and share the same
system of reference ie the common law
The problems encountered by the legal translator in translating legislation
include two aspects namely cultural and linguistic The linguistic problems in
translating the English into Chinese mainly include (1) Complex and lengthy
sentences (2) frequent use of the passive voice Researches on the language of the
law are numerous and relatively comprehensive From both Mellinkoff (1963) and
Crystal amp Davyacutes (1969) attempts at systematization in the 60s up to the modern
studies carried out by Bhatia (1983 1993) on legislative texts by Kurzon (1984) on
cohesive structures and in Spain by Alcaraz amp Hughes (2002) on the peculiarities of
the English legal structure and its language among others the emphasis has been
increasingly placed on the need to define and describe the legal discourse in its own
context Therefore far from considering the legal text solely from its grammatical and
semantic point of view studies of legal discourse exploit the full range of linguistic
theory and are no doubt also influenced by the pragmatic flavour of other previous
multidisciplinary analyses Bhatia (1983 1987 1993) paved the way for the practical
83 ldquoSection 10B (2) of Cap 1 presumes the provisions of a statute to have the same meaning in each
authentic language text The two texts are taken to communicate an equivalent message in their own
fashion They are but two expressions of the same intent and together constitute one law embodying a
single meaning Words and expressions in one language should be deemed to bear the same legal effect
as their counterparts in the other language of the same legislationrdquo Ibid 84 February 1999 Legal Practice Law Drafting The Common Law and the Chinese Language
THE LANGUAGE OF THE COMMON LAW 127
application of genre theory by suggesting a comprehensive framework for analysing
non-literary genresmdashespecially LSP texts His studies of legislative texts examined in
detail their linguistic features in terms of preparatory qualifications cases and
conditions in an attempt to fill the gap caused by inadequate attention to training in
legal language in legal education system Bhatiarsquos work has shed considerable light on
the writing preferences of legal drafters Following Hallidayrsquos functional approach
Maley (1994) also researched legislative discourse by examining generic structure and
legal performatives He stressed the ways in which mandatory permissive or
discretionary elements in legislation determine the use of performative or operative
verbs (pp 20-21)
Let us look at the problem from the viewpoint of legislative drafting A rule of
law regulates behaviour in society It must be clearly formulated categorically stated
and accessible in terms of form The underlying logical structure of a rule of law and
its textual formulation are not always identical so recipients often have to construe
the relation between logical structure and the text Most importantly a rule of law
always exists as a logical proposition even if this not set forth formally in a statute
However when formally recorded one rule may be embodied in several texts
Although its textual formulation may sometimes be unclear or unambiguous the
logical structure of a rule of law always remains clear since the logical structure of the
legal rule determines the arrangement of its textual elements The so-called legislative
sentence is a sentence designed to confer rights or powers or to impose duties and can
also be used for prohibitions A mastery of the legislative sentence is useful for all
legal translators Legal rules expressed by the legislative sentence have a consistent
framework for their component parts divisions sections subsections and other
segments These linguistic conventions which may pose certain problems for the
THE LANGUAGE OF THE COMMON LAW 128
legal translator actually provide a framework for the legislative drafter The legal
translator should know how the rule was developed about the underlying intentions of
the drafter and about how the rule-maker wants the rule interpreted85 This may place
a heavy burden on the legal translator and it is also a burden that the legal translator
has to remove from othersrsquo shoulders Although a plain writing style was not a new
style for rules written in England ldquomost of the legal documents follow the basic rules
that were written 150 years ago by an English barrister by the name of George Cooderdquo
(Watson-Brown 1998 p 23) Coode developed a model legislative sentence which
has been adopted by drafters in most Commonwealth countries and in some American
states Coodersquos model has also influenced the drafting of clauses in legal documents
especially contracts86 Although Coodersquos analysis has been criticized by some legal 85 Generally there are three well-established interpretation rules supposedly to guide lawyers and judges
the literal rule the golden (or purposive) rule and the mischief rule The literal rule simply means
giving the text its ordinary everyday meaning and applying it exactly as written This rule came into
prominence in the 18th century The literal rule was founded on the assumption that words chosen by
Parliament in the Act (or any legislature in any law) clearly showed their intentions in passing that Act
(Holland amp Webb 1991 p 66) What the literalist would be looking for is the primary or most obvious
meaning of the word not any general meaning or secondary meaning (Ibid pp 166-167) The literal
rule is admittedly a workable criterion for statutory interpretation The golden rule meant that words
should be construed in their ordinary sense unless that would lead to absurdity or inconsistency in
which case the senses of the words might be modified to avoid that absurdity and inconsistency (Cross
1987 p 14) The mischief rule seeks to discover the real intention of the legislature and represents a
somewhat more purposive approach to interpretation which sets out the job of the judge as to determine
what defect in the common Law the statute set out to remedy and apply what is ascertained to be the
intention of parliament There are other three rules which guide the statutory interpretation the rule of
ejusdem generis (lsquoof the same kindrsquo) the rule of noscitur a sociis (lsquoa thing is known by its associatesrsquo
[also known as the rule of rank] and the rule of expressio unius est exclusio alterius (lsquothe mention of
one thing is the exclusion of anotherrsquo) (Cross 1987 p 136) 86 According to Coode most law is designed to change the position of a person or a class of persons by
conferring a right privilege or power or by imposing a duty To carry out these functions effectively a
legislative sentence should contain four elements the legal subject which is a description of the person
or class of persons who is given a power or duty or whose legal position is otherwise affected by the
THE LANGUAGE OF THE COMMON LAW 129
theorists as too rigid it remains a good starting place because it suggests the kind of
analysis drafters should attempt before starting to draft87 The complex and lengthy
sentences of the model were drafted expressly for the purpose of formulating legal
rules and enabling a drafting convention to be followed Since legal texts (statues
treaties contracts) defend the rights of a person or group or impose obligations their
drafters must pay ldquoscrupulous attention to making sure that the legal text is hermetic
and unambiguousrdquo (Taylor 1998 p 130) Admittedly the efforts to achieve a
hermetic and unambiguous text often result in a text that can be ldquoat times seemingly
impenetrable syntactically complex full of apparent redundancyrdquo (p131)
Another problem that the legal translator encounters is the use of passive
structures When using the passive voice a statement acquires an air of mystery as the
actor remains unknown until after the action is stated An omission of the actor
renders the statement even more mysteriousrdquo (p 23) Such an air of mystery is
operation of the law the legal action which is a description of the legal action or legally significant
impact that will result from the operation of the law and the case which is a description of the facts that
must have occurred the circumstances that must be present and the conditions that must be met for the
law to operate In the classic legislative sentence these three elements are arranged in the following
order
(1) the case is set out first in one or more subordinate clauses introduced by ldquoifrdquo ldquowhererdquo or
ldquowhenrdquo
(2) next comes the legal subject The legal subject is also the grammatical subject of the main
clause The legislative sentence ends with the legal actionmdasha description of what the legal subject may do or is
entitled to claim or must do or must not do 87 Admirable as it is Coodersquos model has certain problems One is that it relies on a left-branching
sentence structure Another problem is that it encourages drafters to equate a legal provision with a
self-contained legal unit on the one hand (the section article or clause) and with a self-contained single
grammatical unit on the other (the sentence) The final problem is that Coodersquos analysis of legal action
the third element of the legislative sentence is narrowly focused on rights duties and powers It
ignores definitions and other types of declarations
THE LANGUAGE OF THE COMMON LAW 130
preferred by the legal drafters since the passive voice conveys the kind of objectivity
and lack of bias that legal rules are supposed to exhibit Consequently the legal
translator may find this particular linguistic problem hard to solve since legal English
creates linguistic patterns that are particularly difficult to translate directly into
Chinese However it is possible to write legal rules as Watson-Brown suggests ldquothat
will reflect (upon translation) the same meaning without tortuous Chineserdquo (1998 p
23)88 The legal translator does not necessarily follow the sentence sequence of the
English legislative text Instead he can use sentence structures idiomatic to Chinese
as long as the original meaning can be delivered
As can be seen from the discussion above past research on legal translation was
under the influence of the linguistic approach to legal translation mainly concerned
with the linguistic features of legislative language Inspired by applied linguistics
Alcaraz amp Hughes (2002) put forward the idea of ldquoindirectrdquo legal translation which
aims ldquoto produce on the target reader an equivalent effect to that produced by the
source textrdquo (p 180) Instead of explaining how the equivalent effect could be
produced on the target reader they mainly discussed the linguistic features of
legislation and the linguistic problems confronting the legal translator in the aspects of
ldquomodifiersrdquo ldquoadverbsrdquo ldquosyntaxrdquo ldquothematization and ldquotextual coherencerdquo To deal
with such problems they suggested three techniques ie transposition expansion and
modulation (pp 186-192) However they seemed to have ignored a more significant
88 Waston-Brown (1998) also proposed some solutions to the English legal drafter in terms of avoiding
pitfalls in bilingual legislation
(3) Use the active voice the present tense and indicative mood
(4) Use an intuitive syntax leaving the verbal qualifications until the end of the sentence
(5) Use short sentences by deleting lsquoandrsquo when it joins two principal clauses and
(6) Learn Chinese syntax and attempt to match it with the English text (p23)
THE LANGUAGE OF THE COMMON LAW 131
problem besetting the legal translator namely the cultural problemŠarčevićrsquos (1997)
contention that legal translation is not linguistic transcoding did not prevent her from
approaching legal translation both from a linguistic and a cultural perspective She
studied syntactic features of the legislative text and noted that ldquothere is essentially one
basic underlying thought pattern hellip the basic logical structure of legal rules is
expressed by the formula if P then Qhelliprdquo basing her analysis on Coode (p 162) She
also discussed other stylistic features of legislation such as the use of negation and the
impersonal Šarčevićdid not find herself totally constrained by the linguistically
prescriptive aura of legal translation She suggested in fact that legal translators could
be creative in translation She realized that a ldquotranslatorrsquos greatest challenge when
translating the fact-situation of a legal rule is to find suitable ways of compensating
for conceptual incongruencyrdquo (p 149) She exemplified this conceptual incongruency
by citing an example from the Canadianrsquos experience of bilingual legislation In this
example the selection of the common law term ldquowilful conductrdquo as the equivalent for
dol in French caused confusion since the term ldquowilful conductrdquo ldquoincludes not only
acts performed with intention but also acts performed carelessly without regard to the
consequencesrdquo (p 150) Instead of providing a solution for the problem however she
merely commented that the use of descriptive paraphrase by Canadarsquos legal translators
was not a good way to overcome conceptual incongruency (p 151)
The researcherrsquos preoccupation with the linguistic problems of legal translation
may be justified if we view translation as a pure process of linguistic transcoding
However linguistics alone cannot help us to see the whole picture Roebuck and Sin
(1993) rightly pointed out
THE LANGUAGE OF THE COMMON LAW 132
The existence of semantic gaps only proves the truism that different languages have different
ways of organizing the semantic fields of their basic vocabularies Although there are hardly
one-to-one correspondences between them a simple predicate in one language can almost be
mapped onto several correlative predicates in another hellip Likewise the existence of syntactic
gaps only show that different languages have different rules for generating acceptable formal
structures which are simply habitual ways of ordering phrasal and sentential components hellip
Accordingly examples of semantic-syntactic gaps show only that symmetry rarely exists
between languages hellip Translation as a linguistic activity for facilitating communication
between different language communities must take that linguistic fact as its starting point but it
decides nothing Translationrsquos primary task is to convey the various types of meaning which are
independent of the conventionalized arbitrary features of human languages And exact
translation as a meaningful concept must be understood in that context and as a linguistic
activity must proceed under those constraints (pp 200-201)
Thus Linguistic problems are not as difficult as the theorists reckoned them to be The
translatorrsquos greater challenge is the cultural problems to be faced in the process of
translation of legislation (or bilingual legislation) as Sin (1992) pointed out
The creation of a Chinese Common Law vocabulary for the rewriting of the Common Law in
Chinese will signify a large-scale assimilation of the entire English legal tradition into Chinese
culture (p 98)
The construction of every legislative rule was a process of conceptualization and the
legal drafter ldquowill usually draft from a precedentrdquo as Watson-Brown observes (1998
p23) To summarize the aim of bilingual legislation is to rewrite the common law in
THE LANGUAGE OF THE COMMON LAW 133
Chinese and the two parallel legal texts namely English and Chinese share the same
system of reference ie the common law
54 Case Law Languagemdashthe Language of Judges
In the common law the notion of statutes as the primary source of law is a
recent development and beneath the burgeoning corpus of statues of the past years lie
the bulk of the common law the collection of judgesrsquo judgments that makes all the
rules by which disputes are resolved Judgments are law in action an abstract legal
rule is applied to a set of facts to solve a concrete problem and the solution is justified
Judges actually play an important and integral part in the common law system as it
has evolved In the common law system a judge is first called upon to find the law
next to interpret it then to articulate it and finally to apply it to the facts and the
situation presented in the courtroom It is the first two steps to find the law (with the
help of counsel) and to interpret it which come closest to the business of actually
making law Although much of the primary onus for the making of rules now lies on
the legislature it is still acknowledged that the common law system has historically
preferred to make law by adjudication than by legislation Consequently judge-made
law still plays and will play a significant part in the common law
In the case of Hong Kong where the law is built upon the common law judicial
precedents thus carry the same legal weight as legislation The legal rules and
principles that judges use to resolve present disputes will be applied to similar
disputes in the future As judicial precedents which are all reported in English are the
bases for the interpretation and application of statutes in the common law system it
THE LANGUAGE OF THE COMMON LAW 134
will be difficult for legal practitioners to cite authorities in bilingual judicial
proceedings if there are no Chinese supporting materials for the respective ordinances
Besides as a judgment carries legal weight the translated version should be written in
precise language that captures the exact legal meaning of the original Translation of
binding precedents is therefore no less important than the translation of statutes
However in Hong Kong only a number of selected judgments have been translated
into Chinese The following reason was provided by the Department of Justice
(2004)89
The principles of the Common Law are to be found in the judgments of the courts both in Hong
Kong and in other Common Law jurisdictions around the world The language in which those
judgments have been delivered over the years is almost exclusively English There are hundreds
of thousands of reported cases which form the basis of the Common Law and it would
obviously be impractical to attempt to translate these into Chinese While in future there is likely
to be an increasing number of judgments in Hong Kong delivered in Chinese English will
continue to be the only medium in which the majority of judgments from overseas is reported
Given the above-mentioned constraint there is no denying that translating English
judgments into Chinese is of great significance and we must now explore the
language of the judgments and the difficulties encountered in the translation process
To solve the problem of cultural transfer in translating common law judgments
into Chinese requires the legal translator to fully understand the language of the
judgments in the first place Judgments can be found in law reports These serve as the
89 The passage is quoted from the Department of Justice website Information based on the
Departmental publication Legal System in Hong Kong printed in 2004
THE LANGUAGE OF THE COMMON LAW 135
written record of the explanation that judges give of their reasoning and they enable
ready access to previous judgments90 Generally judgment as a form of law is
formal and authoritative The common law judge writes opinions as a narrator of the
law91 The prestige he enjoys in his professional milieu allows him to fully and openly
assert his own interpretation of the law and to present it in through argumentation
Consequently the decision-giving process involves two intertwined process namely
the interpretation of the legal rules that are being applied to the specific case and
factual situation and the argumentation supporting why a decision is made in one way
rather than another Although each judgment will to some extent reflect the individual
styles of the judge arriving at it it will always stand on these twin pillars of
argumentation and interpretation92 These modes in turn can shape the distinctive
features of the language of judgments93
90 A judgment can be divided into four components The first component is a brief description of the
important points in a particular case The second component is an introduction It gives the readers a
general idea of the case The third component is a list of cases referred to in the judgment The fourth
and the most important component is the main body of the judgment It is in this part that the opinions
of the judges are delivered 91 The main body of the judgments has two parts ratio decidendi and obiter dictum As the rationale of
particular judgment ratio decidendi states the underlying principle of law and represents the logical
basis of judicial decision Unlike obiter dictum which is the remark or observation made by a judge
while issuing a ruling ratio decidendi has binding force 92 After examining some technical and semi-technical legal terms that judges frequently use in giving
their decisions Alcaraz amp Hughes (2002) observed that ldquoin keeping with the British tradition of
strongly reasoned judicial opinion judgments are often couched in a style that is flavoured with the
personality of their makerrdquo (p 114) In addition to their role in convincing the parties judges also argue
about the appropriateness of the norm being applied (the stare decisis function of judgments) Thus
judicial opinions are also aimed at persuading their readers of the correctness of the decision reached
Modes and means of persuasion such as explicit argument rhetoric metaphor and syntax are
sometimes language-specific and this may cause difficulties to the legal translator 93 Since many legal disputes are battles over the meaning of a statute contract testimony or the
constitution judges must interpret language in order to decide why one proposed meaning overrides
another And in making their decisions about meaning appear authoritative and fair judges often write
THE LANGUAGE OF THE COMMON LAW 136
Judicial language thus constitutes a special genre and research into the language
of judges has revealed a number of linguistic and legal problems which can ensnare
the translation process Judgments are important texts in legal education and
constitute a considerable amount of the required reading of law professionals A
generic structure of judgments had been identified (Bhatia 1993) as well as a
relationship between the structural elements and the communicative functions of
declaring and justifying Alcaraz amp Hughes (2002) considered that linguistic problems
affect ldquoonly the tone and style of the judgment and are in no way concerned with
matters of lawrdquo (p 115) One prominent linguistic feature is the use of the first person
singular Another is the flavour of relatively colloquial expressions introduced in
order to ldquotemper the severity of the law to make the opinion sound more humane and
to create an impression of reader-friendlinessrdquo (p 116) Maley (1994) also approached
the use of the first person singular from the view of modality which he found played
an important role in the justifying function of judgments He cited a famous speech
delivered by Lord Atkin as an example of the semantics of modality Elaborating on
Hallidayrsquos distinction between two kinds of modality modalization and modulation
Maley explained
about the nature of linguistic interpretation Thus the language itself serves an interpretive function
Both legal interpretation and legal reasoning concern the application of legal rules Every rule is
formulated within a certain context but does not explicitly reflect that foundation The background
comprises the elements of the time the place the reason the process and the people who make the rule
Once a legal rule is written down in the form of language it loses its background simply because of the
inherent limits of language This linguistic constraint makes the application of legal rules all the more
difficult Where a judgment seeks to justify a particular interpretation of a norm the judicial opinion is
actually an exercise in persuasion it is a subtle interweaving of a statement of a legal norm and the
justification for both the normative content and the form in which it is stated Judges must be free to
use rhetorical techniques that are central to the persuasive force of a text
THE LANGUAGE OF THE COMMON LAW 137
Modalization expresses the varying degrees of probability and usuality while modulation
expresses the various degrees of obligation and inclination Both modalization and modulation
are expressed from the viewpoint of the speaker they can nevertheless be expressed as thoughts
they are objective or subjective In Lord Atkinrsquos speech hellip when he projects lsquo[persons] that I
ought reasonably to have in contemplationrsquo from lsquothe answer seems to behelliprsquo the latter [is] an
example of an objective modalisation and the former a subjective modulation That is Lord
Atkin is saying what in his opinion the law should be (1994 p46)
Maley (1994) thus concluded that ldquomodalisation and modulation are the chief
linguistic means of expressing the justificatory and declaratory functions of
judgmentrdquo (p 46) Unlike the consistent formal and authoritative language of the
legislation the language of judgments may be tainted with the personal style of
individual judges The legal translator should always take into consideration the need
to preserve the stylistic feature of judgments
Solan (1993) carried out a detailed examination of the linguistic aspects of the
law to illustrate ldquohow and why judges write about the structure and meaning of
language to justify their decisionsrdquo (p 1) Solan used various examples to illustrate
the way linguistics entered the process of judicial decision making analysis of the use
of adjectives in jury instruction analysis of the relationship between adverbs and
prepositional phrases and cases focused on the meaning of certain words in the
legislation Judges often faced linguistic issues when lawyers attempted to interpret
legal rules in the legislation or legal principles laid down in previous judgments in
favour of their own clients (p 28) The final decision rested with the judges
THE LANGUAGE OF THE COMMON LAW 138
hellip the judge hellip will often resort to legally recognized principles of interpretation such as
attempting to divine the intention of the drafters of the document On occasion these principles
are linguistic and it is upon these that I will focus hellip Included among the examples are a
linguistic-legal principles called the last antecedent rule principles governing the interpretation
of conjunction and disjunction (and and or) rules for the interpretation of pronouns and a
debate about the proper scope of adjectives (Solan 1993 p 28)
The above mentioned jurilinguistic principles are a useful starting point when trying
to understand the linguistic problems that the legal translator may encounter The ldquolast
antecedentrdquo rule is the doctrine of interpretation that states that the qualifying words
or phrases in a statute refer to the immediately preceding language unless common
sense indicates that they were intended to apply to something less obvious or more
distant It thus forms an interpretive guide that courts may use to decipher uncertain
statutory language94 In summary a linguistic approach gives us some valuable
insights into the language of judgments and their interpretative rules
In legal translation it is crucial for the translator to understand the underlying
legal principles and legal reasoning in order to transfer the culture of the case law into
Chinese As already shown above rules and principles in each subject of the law have
been developed into concrete and coherent constructions that make up the common
law today These rules and principles have been consistently developed by judges in
94 The andor rule is an interesting and controversial one Legal drafters try to be clear by using
ldquoandorrdquo However there are still many case laws interpreting these two conjunctions Although courts
generally prefer interpretations that make sense of language over ones that turn it into nonsense the
judicial interpretation of ldquoandorrdquo is sometimes an exception How this could be implemented in an
adversarial system was somewhat difficult to see since the interpretation of statutes and legal principles
was considered to be a question of law and therefore the domain of judges (Tiersma 1999 p 130)
THE LANGUAGE OF THE COMMON LAW 139
their decisions95 In section 33 of chapter 3 we have identified the very culture of the
common law as a set of legal concepts and legal principles The concrete
representations of this culture are evident in the various judgments Legal principles
derive from the process of legal reasoning while legal reasoning is based on legal
principles The two are inseparable in a judgment A definition of legal reasoning
given by Carter (1994) described its composition
Legal reasoning describes how a legal opinion combines the four elements the facts
established at trial the rules that bear on the case social background facts and widely shared
values When judges reason well their opinion harmonizes or lsquofits togetherrsquo well these four
elements (p 15)
Carter (1994) also pointed out that ldquoJudicial opinions hellip give meaning to all types of
legal rules hellip precedents in many cases are vehicles for rationalizationsrdquo (pp15
143)96 This means that only if we understand the judicial opinions can we understand
the meaning of legal concepts or principles and hence case law as a whole97 Maley
(1994) thus concluded that ldquocommon law judges do not regard the application of the
95 The common law system is based on the legal principle of deciding points in litigation according to
precedent This applies both to application of the common law and interpretation of statute Under this
principle decisions of courts on matters of law are binding on subordinate courts or tribunals and if
not binding are highly persuasive on the court itself or equivalent courts 96 It is argued that there are at least three things which legal theorists could mean by legal reasoning (a)
reasoning to establish the existing content of the law on a given issue (b) reasoning from the existing
content of the law to the decision which a court should reach in a case involving that issue which
comes before it and (c) reasoning about the decision which a court should reach in a case all things
considered 97 Reasoning by analogy is integral to legal reasoning in the common law Any theory of legal
analogizing that seeks to explain the way in which precedents are utilized must account for the
influence of legal principles on the creation of legal analogies and for the use of analogies as a means
to test and refine these principles
THE LANGUAGE OF THE COMMON LAW 140
principle of law to the facts of the case as a purely mechanical process Reasoning is
involved a kind of reasoning by analogyhellip In giving judgment judges hellip make
explicit the reasoning processes which have led them to that decision the cases they
have considered the analogies they have considered and rejectedmdashin short their
individual lsquofullest examinationrsquordquo (p 43) Legal analogizing thus plays an important
role in determining the scope of principles themselves98
Let us take an example from criminal cases to illustrate how legal principles in
the judgments might be identified In the common law tradition the vast majority of
criminal law is un-coded and the legal concepts and legal principles could be found
only in the judgments One essential legal concept in criminal law is mens rea This
focuses on the mental state of the accused and requires proof of a positive state of
mind such as intent recklessness or wilful blindness Some level of mens rea is
always a required element of the crime with which the accused is charged and must
be proven by the prosecution Therefore the principle of mens rea is the fundamental
principle of the criminal law In the famous mens rea murder case R v Nedrick 99 it
was made plain by Lord Lane CJ that the mens rea of intent could be inferred by a
jury when the defendant knew that death or really serious injury would come about as
a ldquovirtual certaintyrdquo of the act contemplated and done The House of Lords held in R v
Woollin100 reasoning by analogy that the principle of mens rea was applicable to the
present issue However it developed the principle of mens rea by suggesting that the
use by the trial judge is of ldquosubstantial riskrdquo rather than ldquovirtual certaintyrdquo Actually
98 Principles are empty unless tested by reference to concrete examples Any complete model of legal
reasoning and legal analogizing must simulate the manner in which principles influence the creation of
analogies and the way in which principles are themselves tested and refined on a case by case basis 99 [1986] 1 WLR 1025 100 [1998] 3 WLR 382
THE LANGUAGE OF THE COMMON LAW 141
there are other cases that address the principle of mens rea ie R v Moloney 101 and
R v Hancock and Shankland102 These cases worked together to clarify the legal
concept and legal principle of mens rea especially the meaning of intention in terms
of acts that cause grave bodily harm or death
We can see that judgments are part of a community and part of a tradition103
Judgments are law in action where abstract legal rules are applied to solve concrete
problems and its justification are provided Most importantly judgments state what
the law is and define the legal concepts and legal principles embodied in the law In
other words judgments make up the most substantial part of the referencel system of
the common law against which the legal terms should be construed Therefore we
need resort to judgments for the real meaning of a translated legal term in the
legislation in order to understand the concept it stands for and related legal concepts
and legal principles In this sense translation of judgments is one of the most
important ways of building a metalinguistic mechanism for the common law As
noted in section 223 of chapter 2 cultural transfer is eventually effected by
metalinguistic operation as such
101 [1985] 1 All ER 1025 102 [1986] 2 WLR 257 103 In this connection Goodrich (1990) remarked
The Common Law will always exceed its particular texts its particular references its positive
forms To know the law is a matter of knowing an antique and unwritten tradition that exists
outside of history beyond all texts in the inaugural realm of things divine and to be divined
(augured) In Cokersquos words even where it is a matter of reading the law it is a question of reading
not simply the words of the text but also the tradition that accompanies them ( p 117)
Chapter 6
Cultural Transfer in Translating the Common Law into Chinese
61 Transfer of the Legal Culture of the Common Law
611 Problems in Translating the Common Law into Chinese
As we saw in the previous chapter the language of the common law is a complex
collection of linguistic habits that have been developed over many centuries one that
judges lawyers and other legal professionals have learned to use strategically Its
distinctive linguistic features accordingly reflect the underlying conceptual thinking of
such users In the same chapter we found that the legal culture of the common
lawmdashits legal concepts and legal principlesmdashis intricately woven into the texture of
its language In this section we will further analyze how both the legal culture and the
language of the common law pose difficulties to the legal translator as she sets about
her work
The problems that arise when translating the common law into Chinese are
closely related to both the legal culture of the common law and the specific features of
English legal language and we can categorize them into two major groups
(1) Problems arising from cultural differences between English and Chinese
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 143
The most daunting aspect of translating the common law into Chinese is the
culture-specific quality of the source legal texts In many cases a difference in the
mere form of wording amounts to a difference in law
For instance if A lends money to B on mortgage and stipulates that the interest shall be 5 per
cent but if not paid promptly 6 per cent the latter part of the provision is void as a penalty Thus
B need pay only 5 per cent even if he does not pay promptly Yet if A had provided that interest
should be 6 per cent but if paid promptly 5 per cent the whole would have been good (Williams
1948 Jan pp 78-9)
In essence both provisions stipulate the same thing B to pay 5 per cent if he pays
promptly if not 6 per cent Yet the first formulation is not allowed by law whereas
the second is allowed Following the wording of the source text would seem to be a
play-safe strategy in legal translation and in the present case there is no immediately
apparent reason for the translator to deviate from the original wording But consider
the following case
If A gives property on trust for B lsquobut if B marries then for Crsquo the gift to C is struck out because
it tends to induce B to remain unmarried and the procreation of legitimate children is regarded as
a public interest Thus on this form of words B will take absolutely But if the words used were
lsquoon trust for B until he marries and thenceforth for Crsquo the gift over would be valid and B would
lose the property if he were to marry (Ibid p 79)
Here we meet the famous distinction between ldquobut ifrdquo and ldquountilrdquo in English law
Again it is obvious that both of the formulations under scrutiny intend to stipulate the
same thing B must give up the property to C once he marries However the
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 144
formulation using ldquobut ifrdquo is regarded as void whereas the one using ldquountilrdquo is valid
The translator may well find that her translation of the second formulation into
Chinese ldquo甲以信託形式將財產贈予乙直至乙結婚為止屆時財產將改贈予丙rdquo
looks rather clumsy and so turn instead to the wording of the first formulation which
looks simpler and more natural ldquo甲以信託形式將財產贈予乙 但如乙結婚 則改
贈予丙rdquo If she does this however she will have turned the original valid formulation
into an invalid formulation
As judicial decisions are sometimes arrived at purely on the particular words
used in a particular case changing the wording of the source text risks producing the
opposite legal effect in the target text This is why lawyers are so cautious over the
words they use This is also why the legal translator is often instructed not to deviate
from the wording of the source text
At a higher level the particular sentence structure of a statute may embody the
spirit of the common law According to Francis Cheung (1991) a penalty provision in
English criminal law is invariably formulated in the negative which is a manifestation
of a fundamental principle of the common law namely the ldquoresidual principlerdquo (pp
304-05) This principle accords citizens freedom to do whatever they like so long it is
not expressly prohibited by the lawmdashfreedom is whatever the law does not expressly
prohibit In contrast traditional Chinese law accords people freedom to do those
things allowed by the lawmdashfreedom is whatever the law allows To illustrate this
point he cited as an example the translation of a section of the Film Censorship
Ordinance 1988
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 145
15 (1) A person shall not exhibit a film in respect of which a certificate of exemption has been
issued under section 9 or a certificate of approval has been issued under section 13 unless the
certificate or a legible photocopy thereof is displayed and kept displayed in a conspicuous
position in or about the entrance to the part of the place intended to be occupied by persons
viewing the exhibition of the film during the period of exhibition of the film
The section was translated into the following two alternative versions
Version 1
15 (1) 任何人上映影片須在影片上映期間將根據第 9 條發給該影片的豁免證明書或其
清晰影印本或根據第 13 條發給該影片的核准證明書或其清晰影印本一直展示在用以容
納觀眾觀看該影片的場所入口或近入口處的當眼位置否則不得放映該影片
Version 2
15 (1) 無論何人不得上映根據第 9 條獲發豁免證明書或根據第 13 條獲發核准證明書的
影片除非在該片整段放映期間將上述證明書或其清晰影印本[或上述核准證明書或其
清晰影印本]展示在用以容納觀眾觀看該影片的場所入口處或近入口處的當眼位置
Cheung noted that Version 1 was more fluent but since it was formulated in the
affirmative and therefore unable to reflect the spirit of the residual principle it was
eventually not adopted On the other hand even though Version 2 sounded a little
unnatural in Chinese it was adopted as the official translation since it conformed to
the legal norm for penalty provisions
Thus in legislative translation the linguistic features of the source text often
dictate how it should be translated Preserving the linguistic features of the source text
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 146
is not as Vermeer and Snell-Hornby alleged transcoding but preserving the culture
of the source text
The language of the common law is also a manifestation of a series of
traditionally well-formed legal concepts These conceptions are the philosophical
foundations of the common law tradition and the basis of the legal principles
cultivated by legal reasoning unique to the conceptualization of the common law
Some common law terms for example are noted for their generality and abstractness
eg ldquoreasonable personrdquo or ldquodue processrdquo Common law language also employs
many abstract concepts that ldquodo not take their meaning from sensed experience but
are normative in characterrdquo (Farrar amp Dugdale 1990 p 77)67 The legal translator
must thus overcome the conceptual differences between English and Chinese Having
shown that legal concepts and legal principles are the major elements in the culture of
the common law we now need to discuss how they pose problems for the legal
translator The following example is taken from the frequently cited case Donoghue
(or MrsquoAlister) v Stevensonmdashthe ldquoPaisley snailrdquo case68 In the case Lord Atkin made
a famous speech which constructed the foundation of the modern law of negligence69
67 Farrar and Dugdale (1990) created a vivid simile to illustrate the importance of concepts in the
Common Law They remark ldquoIndeed conceptual thinking came to dominate the English Common
Lawhellip Concepts are more like chess pieces They can be maneuvered to produce certain results but the
players have a choice as to the move Similarly lawyers and judges often have a choice as to how they
will move the concepts They way in which they are moved and are applied to facts involves a process
of reasoning helliprdquo (p 78) 68 In this ground-breaking case a woman May Donoghue claimed to have been made ill by a bottle of
ginger beer she had bought in a cafeacute in Paisley Mrs Donoghue sued not the proprietor of the cafeacute but
the manufacturer of the drink She argued that the manufacturer had been negligent in not noticing that
the bottle contained a snail before filling it with ginger beer and sealing it Donoghue v Stevenson was
ground-breaking in Scots law as previously the customer would have been expected to sue the
shopkeeper rather than the manufacturer with whom she had no lsquocontractrsquo However in this instance
the drinkrsquos manufacturer was found liable for damages as they had neglected to provide a system to
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 147
Firstly it is evident that there are many terms peculiar to the Common Law such
as ldquoduty of carerdquo ldquoliability for negligencerdquo ldquoacts or omissionsrdquo ldquoreliefrdquo ldquoremedyrdquo
In the Common Law duty of care is the legal obligation as a citizen in societymdashit is a
question of law that requires the judge to determine if the duty is under a legal
obligation to exercise reasonable care in favour of the plaintiff Thus mastering the
cultural implications of the above legal concepts the ldquocultural immersionrdquo suggested
by Curran (1998 p 83) was a pre-requisite for the legal translator to comprehend
thoroughly the meaning of the English legal text As noted in section 52 of chapter 5
the effort to find Chinese equivalents for the above English terms would be futile
since there are no terms available in Chinese to express some of the most elementary
notions of the common law The legal translator in Hong Kong has to overcome the
difficulty of translating terms expressing concepts which are absent in Chinese
protect the public in such a way that lsquosnails would not get into the said bottle render the said
ginger-beer dangerous and harmful and be sold with said ginger-beerrsquo 69 Lord Atkinrsquos remarkable judgment in this case reads in part
At present I content myself with pointing out that in English law there must be and is some
general conception of relations giving rise to a duty of care of which the particular cases found
in the books are but instances The liability for negligence whether you style it such or treat it as
in other systems as a species of lsquoculparsquo is no doubt based upon a general public sentiment of
moral wrongdoing for which the offender must pay But acts or omissions which any moral code
would censure cannot in a practical world be treated so as to give a right to every person injured
by them to demand relief In this way rules of law arise which limit the range of complainants
and the extent of their remedy The rule that you are to love your neighbour becomes in law you
must not injure your neighbour and the lawyerrsquos question ldquowho is my neighbourrdquo receives a
restricted reply You must take reasonable care to avoid acts or omissions which you can
reasonably foresee would be likely to injure your neighbour Who then in law is my neighbour
The answer seems to bemdashpersons who are so closely and directly affected by my act that I ought
reasonably to have them in contemplation as being so affected when I am directing my mind to
the acts or omissions which are called in question (Donoghue (or MrsquoAlister) v Stevenson [1932]
All ER Rep 1 [1932] AC 562 House of Lords [1932] AC 562)
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 148
Secondly since a set of legal principles is formulated and developed by the courts
based on the significant legal concepts of the common law any lack of methods to
represent these legal principles constitutes another problem For example the common
law concept of tort consists of a breach by the defendant of a legal duty to take care not
to damage the plaintiff or his property and consequent damage from that breach Lord
Atkin in this leading case of Donoghue (or MrsquoAlister) v Stevenson held that while the
decided cases might each examine particular types of liability there must be a common
rationale He developed the argument that the decided cases had evolved to a general
principle which covered the immediate case In this case the applied principle was the
already existent neighbour principle which prescribed that you were to love your
neighbour This then became in law the prescription that you must not injure your
neighbour Lord Atkin then suggested a general test for when a duty is owed and the
lawyerrsquos question ldquoWho is my neighbourrdquo received a restricted reply ie you must
take reasonable care to avoid the acts or omission which you can reasonably foresee as
likely to injure your neighbourmdashwho then in law is my neighbour The answer
seemed to Lord Atkin to be persons who are so closely and directly affected by my act
that the actor ought reasonably to have them in contemplation as being so affected when
he was directing his mind to the acts or omissions which were called in question Thus
the legal duty was owed to persons whom one ought reasonably to have in mind as
being affected by onersquos particular behaviour70 The House of Lords in this case held
that manufacturers of products do have a duty to the ultimate consumer of their product
to take reasonable steps to prevent defects in its products which are likely to cause
damage to person or property The above reasoning established this as an important
case in the area of product liability In Lord Atkinrsquos approach we can note the common
70 This case is well-known as it sets out ldquothe circumstances under which a legal duty to take care will
ariserdquo (Shum 1992 p 205)
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 149
law spirit of stare decisis Lord Atkin did not ignore the precedents Instead he found
within them an underlying principle which he then applied In a sense Lord Atkin
looked backward before he moved the law forward to develop the legal concepts and
legal principles In translating such case law it is obvious that the underlying principles
are alien to Chinese but are a sine qua non for our current discussion of the culture of
the common law The legal translator thus faces the problem of finding a way to
represent such legal concepts and legal principles in Chinese
(2) Problems arising due to the differences between the syntactic arrangements word
order and language systems generally of English and Chinesemdashfor brevityrsquos sake
ldquolinguistic problemsrdquo71
Firstly frequent use of the passive voice is characteristic of the English common
law Voices are rather considered to have particular functions of their own than being
used for variation in the legal text The passive voice was sometimes viewed as
helping to convey the objectivity that law-makers seek to achieve ldquohellipthe passive of
the British formula renders the authority of the speaker more remote neutral and
abstract reducing the immediacyrdquo (Bowers 1989 p 28) In addition there are
instances where the passive is chosen for thematic reasons Also take the example in
sect13 of the translation of ordinance with the heading Apportionment of liability in
case of contributory negligence
Below is the English version
71 It is necessary to discuss linguistic problems since as we discussed in chapter 1 translation remains
linguistic transcoding Without a thorough understanding of the linguistic problems posed by the
differences between English and Chinese we cannot discuss the problem of cultural transfer properly
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 150
hellip a claim in respect of that damage shall not be defeated by reason of the fault of the person
suffering the damage but the damages recoverable in respect thereof shall be reduced to such
extent as the court thinks just and equitable having regard to the claimants share in the
responsibility for the damage (Amended LN 337 of 1989) (Cap 23 Sect 21)
The Chinese version reads as follows
hellip則就該損害提出的申索不得因受損害者有過失而敗訴但就該申索可追討的損害賠償
則必須減少而減少的程度是法院在顧及申索人對損害應分擔的責任後認為是公正與公
平的款額
Obviously the passive voice is employed above in order to foreground or thematize
ldquoclaimrdquo and ldquodamagesrdquo and these nouns take up subject position The legal translator
should consider whether it is appropriate to translate the English passive into Chinese
using sentences with ldquo被rdquo ldquo受rdquo or ldquo獲rdquo Therefore the Chinese translation follows
the English structure in conformity with the thematic emphasis by using the typical
topic-comment structure in Chinese
Secondly lengthy and complicated sentences are frequently used often
involving nominalization subordination and coordination all of them surface features
that help to make the common law seem so markedly complex72 Nominalization can
increase the inclusiveness of an expression but can also create a certain degree of
abstraction since the noun phrase may substitute for an entire subordinate clause As
72 A nominalization is a noun phrase that has a systematic correspondence with a clausal predication
which includes a head noun morphologically related to a corresponding verb
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 151
a result post-modification is largely used increasing the complexity73 The extensive
use of coordination and subordination structures in general leads to long and
complicated sentences in order to achieve the goal of inclusiveness precision and
clarity Consider the following sentences in Donoghue (or MrsquoAlister) v Stevenson
The liability for negligence whether you style it such or treat it as in other systems as a species of
culpa is no doubt based upon a general public sentiment of moral wrongdoing for which the
offender must pay
But acts or omissions which any moral code would censure cannot in a practical world be treated
so as to give a right to every person injured by them to demand relief
In the above two sentences the subjects ldquoliabilityrdquo and ldquoacts or omissionsrdquo are
followed with more or less elaborate post-modification ie the dependent clauses
introduced by ldquowhetherrdquo and ldquowhichrdquo respectively The legal translator needs to
understand the logical progression and legal reasoning underlying these complex
sentences when striving for semantic equivalence between English and Chinese
73 For varied forms of post-modification Crystal amp Davy suggest a four-fold division
a a preposition with a nominal group (ie a prepositional phrase) eg lsquothe defence of the free
worldrsquo
b a non-finite clause eg lsquothe diazo- and azo-compounds discussed aboversquo
c a dependent clause which may be introduced by a pronoun or simply attached directly to the
nominal it modifies eg lsquothe man I knowrsquo
d an adjective eg lsquo God the Father almightyrsquo (in Hiltunen 1989 p79)
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 152
612 Legal Translation as Cultural Transfer-- Two Levels of Transfer
In this section we will not only present a theoretical framework for analyzing
legal translation as cultural transfer but also provide principled methodologies for
legal translation especially for translating the common law into Chinese It has been
noted that legal translation as cultural transfer inevitably involves the linguistic and
conceptual adjustments of the translating language Translating the common law into
Chinese is thus a paradigm of cultural transfer as foreignization and necessitates the
importation of common law legal concepts and legal principles into Chinese How
exactly could common law culture be transferred into Chinese
Figure 61 which recalls the more general process diagram of Figure 32
illustrates the process of translating the common law into Chinese in order to achieve
the conceptual semantic equivalence noted in section 223 of chapter 2
ST (common law in English) TT (common law in Chinese)
ST is the
representa-
tion of SC
SC is
embedded
in ST
Text of the English
common law
(legislation and case
law)
Linguistic
transcoding
Text of the English
common law in
Chinese (legislation
and case law)
The missing link
between the
Chinese translation
and the culture of
the common law
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 153
SC (Culture of the common law) SC (Culture of the common law)
Figure 61 Process of Translating the Common Law into Chinese
The problem is one of cultural transfer Since section 4(1) of the Official
Languages Ordinance (Cap 5) provides that all ordinances shall subject to certain
exceptions be enacted and published in both official languages (ie English and
Chinese) Section 10B (1) prescribes the fundamental principle of equality between
the two language versions of Hong Kong laws It provides that both language texts of
an ordinance shall be equally authentic and that the ordinance shall be construed
accordingly This means the Chinese text is neither subordinate to nor a mere
translation of its English counterpart74 However such a stipulation of the ldquosection
alone is still not sufficient to make the Chinese text a meaningful representationrdquo (Sin
1998 p 205 the authorrsquos italics) As illustrated in figure 61 even though we conjure
up a Chinese text that translates the English common law (legislation or case law)
and use a range of techniques neologism borrowing etc to arrive at semantic
equivalence this still does not mean that the Chinese text is capable of as is the
English version representing the culture of the common law We still need to find out
how to in Sinrsquos (1998 p 195) words establish the ldquomissing link between language
74 BLIS website A paper Discussing Cases Where the Two Language Texts of an Enactment are
Alleged to Be Different
Culture of the
common law legal
concepts and legal
principles in Chinese
Culture of the
common law legal
concepts and legal
principles
Transference of
the legal culture
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 154
and lawrdquo mdashto be precise the missing link between the Chinese language and the
culture of common law In this connection Sin (1998) rightly points out
All large-scale cultural transfers begin in the absence of a readily usable language The first and
most natural response of the native culture is to make an attempt to naturalize the foreign
culture Where it has a close affinity to the native culture naturalization or minor adjustment
may be adequate But where it is one of great complexity or radically different the native
culture will find it necessary at some point to change and adjust its language so as to make it
suitable for assimilating it hellip In the absence of an established Chinese legal language translating
Hong Kong laws into Chinese without the benefits of naturalization and subject to enormous
constraints is in many ways tantamount to creating a new form of Chinese Special lexical and
syntactic devices were required to cope with the rich and highly technical vocabulary of the
Common Law as well as its distinctive mode of thinking (pp 136-37)
We can see that cultural transfer is first and foremost linguistic transfer As has been
shown in section 211 any translation necessarily involves transcoding on the
linguistic level Where no Chinese term exists to express common law concepts new
terms have to be created Sager also noted ldquoNew terms are regularly introduced into
the language either to fill a gap created by the introduction of a new concept or to
replace an existing less efficient termrdquo (1990 p 114) The Chinese language needs to
be adjusted to accommodate new concepts representing one level of cultural
transfermdashtransfer at the linguistic level However common law Chinese cannot
acquire its new meanings unless these are understood with reference to the English
common law To explain this point Cao (2004) remarks
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 155
It is a fact that when Common Law concepts are translated into Chinese very often new words
need to be created as such concepts do not exist in Chinese Even after the new linguistic terms
are brought into being in Chinese through translation their referential objects continue to be
found in English Common Law not Chinese law and need to be understood with reference to
Common Law hellip Legal concepts and their translations are relative relational and referential If
we see a legal concept as an idea a network of cross-referential sign-functions that is a
complex sign-system a translated legal concept can grow and expand its meanings and take on
meanings from two sign systems linguistically and culturally hellip We need to read a translated
legal concept with reference to the legal system it refers to not just in what language it is
re-presented (pp 172-73)
Cao rightly points out the principle of understanding the translated law after the initial
linguistic transfer since the culture behind it could only be identified in the English
common law instead of common law Chinese
Since the present study concerns itself not only with identifying such a linguistic
transfer but also justifying it we draw attention to the fact that such an adjustment is
more dramatic culturally than linguistically Regarding this Sin (1998) presents a
convincing argument
Before the Common Law integrates into the thought-world of the Chinese language the Chinese
text of Hong Kong law is as it stands a mere linguistic recoding of its English counter-parthellipIts
meaning is transparent only to those who have taken part in the process of translation but
opaque to uninitiated eyes Without the support of a legal culture the semantic link between
Chinese and the Common Law exists only between the two texts As has been noted in cultural
translation one cannot recode in one stroke a text and the culture behind it The culture has to be
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 156
developed hellip Yet the legal culture is in a very real sense already existing but embodied only in
English not in Chinese hellip Particularly it is there in the heads of Hong Kongrsquos bilingual
Lawyers who have the culture at their disposal hellip Culture always comes with the reader not the
text (p 138)
It may well seem difficult for the common Chinese language user to read cultural
meaning from the existing common law Chinese since the meaning of the common
law Chinese has to be construed against the English common law before the whole
conceptual system of the common law can be imported into the Chinese language By
pointing out that legal culture is critical to the understanding of common law Chinese
Sin highlights the significance of developing in Chinese the legal culture of the
common law Given that any legal culture resides within the competence and mastery
of legal professionals proficient in both Chinese and English one may ask how a
broadly analogous and comprehensible culture could be developed for the common
people As Sin noted that the meaning of common law Chinese is intelligible to the
legal translator who fully understands the process of translation providing the
justification of the linguistic transfer would be an effective way to tranfer the culture
which the reader has to read into the Common Law Chinese
As has been discussed in section 223 both Jakobson (1959) and Feyerabend
(1987) made clear the significance of metalinguistic operations in introducing cultural
concepts and establishing new languages in target language This applies especially to
legal translation since we can we not only formulate new languages but also
implement these languages by constructing new concepts of law In this sense the
legal translator is using metalanguage as the tool by which languages are established
in terms of other languages For example as indicated in section 422 Meijier (1950)
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 157
explained that Shenrsquos memorials were critical in understanding how and why the
foreign legal terms were translated In other words memorials as metalanguage are
vital for transmitting alien legal concepts into Chinese because they provide the
necessary theoretical framework and working principles It is now clear that apart
from linguistic transfer translation as cultural transfer is ultimately a conceptual
transfer at the metalinguistic level so that to give an account of cultural transfer in
legal translation is ultimately to give an account of how or why legal translators make
translational judgments corresponding to legal and cultural concepts Thus linguistic
transfer aiming to import the culture of the common law inevitably leads to the second
level of cultural transfermdashtransfer at the conceptual level
It is clear from the foregoing discussion that the theoretical framework for
cultural transfer in translating the common law into Chinese accommodates two levels
of transfer linguistic transfer ie transfer at the linguistic level which involves the
adjustment of Chinese language and conceptual transfer at the metalinguistic level
On this account Sin (1989 1993 1996) proposed the following general principles in
connection with translating the common law into the Chinese
(1) Fixing the semantic reference system
(2) Adjusting the target language
(3) Building metalinguistic devices to fill the conceptual gap
Cao (2004) echoes Sinrsquos first principle ldquoSuffice it to say that the Chinese translations of
common law concepts in Hong Kong need to be understood with reference to the common
law if the lsquotwo systemsrsquo are to remainrdquo (p 173) As for the second principle adjustment
on the linguistic level is a must The Chinese language has to be amplified to
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 158
accommodate new concepts Regarding the third principle there are several ways of
constructing a metalinguistic mechanism by which the ldquoconceptual gaprdquo (Joseph 1995
p34) could be bridged the ldquomissing linkrdquo (Sin 1998 p 195) could be reconnected and
the culture of the common law could be eventually transferred into Chinese
(1) Write commentaries or articles explaining why and how the translation was
done including explanatory remarks in the preface identifying the objective and
approach add footnotes in the translated work or appendannotations whenever
possible
(2) Translation of related legal works into Chinese
(3) Compiling English-Chinese legal dictionaries
Although the arduous labours of Hong Kongrsquos legal translators have succeeded
in translating a considerable body of common law terms into Chinese these are by
themselves far from sufficient to enable an understanding of the Common Law
concepts that they are supposed to convey The development of metalanguage fosters
the ability to treat language not just as a way of expressing meaning but as an object
of thought in its own right The justification of the translation in consequence can be
identified in the metalanguage where the cultural concepts are ultimately perceived
and transferred The reader once guided can turn to the metalanguage where the
usage of words in Chinese is modified and where the manner in which Common Law
concepts were translated into Chinese is explained As has been clear from our
foregoing discussion legal translation as cultural transfer takes place at two
levelsmdashlinguistic and conceptual In the next section we will analyze how these two
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 159
levels of transfers can be carried out presenting detailed analyses of selected
translations
62 Cultural Transfer in Translating the Common Law into Chinese -- Analysis
of Selected Translations
Thus far we have examined general problems in translating the common law into
Chinese and proposed the theoretical framework for viewing legal translation as cultural
transfer We have noted that transfer on the linguistic level requires adjustments of the
Chinese language thus establishing linguistic equivalents in Chinese for the source
language Such a conceptual semantic equivalence between the common law Chinese
and the original common law would eventually be achieved on the metalinguistic level
Metalanguage has proved to be effective device in transferring the culture of foreign laws
into Chinese As discussed in section 61 there are three major methods of constructing
the metalanguage for transferring the culture of the common law into Chinese In this
connection the proposed theoretical framework needs to be applied on two levels for a
thorough analysis of the cultural transfer involved 1) explain the linguistic transfer ie
adjustments of the Chinese legal language legal vocabulary in particular and 2) justify
the conceptual transfer at the metalinguistic level ie employment of metalinguistic
devices We will now explore such a two level transfer by analyzing selected translations
from the viewpoint of translated common law terminology
When translating an item of common law terminology into Chinese the legal
translator needs to conjure up a corresponding linguistic sign in Chinese which can
represent the same concept Since translation is much more than the substitution of lexical
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 160
and grammatical elements between two languages a problem arises from the very
beginning if the translator aims at finding the exact equivalent Where no such equivalent
exists the translator has to form (or redefine) a term to represent the original concept The
concept-formation process is what happens when ldquotranscodingrdquo the common law
terminology ie use Chinese to express common law concepts It has been noted that
linguistic adjustments representing a transfer on the linguistic level are indispensable for
concept-formation where there are no equivalents or only partial equivalents Chinese
legal vocabulary needs expanding and adjusting with common law concepts new to
Chinese being introduced in large numbers
Sager (1990) pointed out that the use of ldquolexical innovationrdquo including
neologisms to introduce new concepts (p 30) We can categorize the techniques
involved into two major kinds They are
(1) Lexical expansion (redefinition) by selecting an existent term in the target language
as the equivalent of the term in the source language a new definition is given to this
translating term which eventually results in the expansion of the lexical meaning
(2) Neologism a new word form may be created denoting the meaning of the
corresponding word in the SL There are several ways of coining new words in the TL
(a) Calque ie reproducing the morpheme structure of the SL lexical unit within the
means of the TL to create a new TL lexeme This approach is considered a species of
literal translation75
75 Cai Qilin (2002) points out that calque is the major technique used in translating Buddhist texts in
ancient China
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 161
(b) Paraphrase ie describing or rendering the meaning of a translated term which
has no counterpart in the TL76
(c ) Direct borrowing ie using transcription or transliteration where the TL lexicon
adopts the SL term
We will further discuss the use of above mentioned techniques and present various classes
of examples of translated common law terminology Some of these examples will also
show how the principles were adopted by the Bilingual Laws Advisory Committee77
when searching for appropriate linguistic equivalents for English legal terms As noted by
Jin amp Sin (2004) ldquoBLAC needs to scrutinize the translation by taking into account both
the legal concepts and linguistic rulesrdquo (p 90)78
(1) Translation of technical terms
For group onemdashtechnical terms which are unique to common law language and
culturemdashthe problem is that there is no Chinese equivalent What the translator has to
tackle is how best to conjure up Chinese equivalents for such technical terms given
always that such equivalents are likely to remain unreliable or speculative tools for
elucidating common law meanings or concepts
76 Also called ldquodescriptive paraphraserdquo by Šarčević (1997 p 252) 77 Under Section 4C (1) of the Official Languages (Amendment) Ordinance 1987 the independent
committee was established by the Governor on 28 October 1988 to scrutinize the translation of the
English legislation enacted before 1989 produced by the Law Drafting Division It is abbreviated as
BLAC 78 The original Chinese text is ldquo委員會審閱的內容既涉及法律概念也涉及語言規範rdquo
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 162
Valuable experiences drawn from the arduous work completed by the Hong Kong
translation team under LDD which completed the project of translating the English
common law into Chinese before 1997 reveal two possible major techniques
(a) Create new words in accordance with terminological creation principles
Forming a new term in English may involve techniques such as prefixing suffixing
and compounding As Chinese characters are pictographic they cannot be inflected as an
English word can but Chinese can form semantic representations by putting together two
or more existing linguistic forms to create a new term The principle means of word
formation is composition which has both advantages and disadvantages On the one hand
composition provides a convenient way of combining the meanings of two words to
express a new meaning Readers tend to derive the meaning of a new term which is
composed of two or more existing words simply by adding the meaning of the
components but without understanding the real meaning of the new term However when
coining new terms in Chinese composition remains a major tool Let us consider some
examples
Example 1 Chattels
The official translation for ldquochattelsrdquo is shichan (實產)79 In the common law
among the many terms relating to property chattels denotes the concept of personal
property contrasting with property relating to land The Chinese equivalent for chattels
needs to denote the concept of ldquohellip any kind of property which having regard either to 79 In Rule 27 of Chapter 6A the Chinese version for the expression ldquohellip and chattels in the possession
of the debtorrdquo is ldquo債務人所管有的hellip實產rdquo
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 163
the subject-matter or the quantity of interest therein is not freehold hellip in a more narrow
and more modern sense hellip means movable property or effects which belong personally to
the owner helliprdquo (Jowittrsquos Dictionary of English Law p 328)80
The BLAC first proposed to translate it as dongchan (動產) Later they found that
ldquo動產 as a Chinese legal concept was not an equivalent for lsquochattelrsquo embodied in the
legal concept behind the lsquoBills of Sale Ordinancersquohellip the Common Law concepts of
lsquopersonal propertyrsquo and lsquoreal propertyrsquo were not only alien to the Chinese legal concepts
it was also difficult to find their exact equivalents in the European legal system or
Canadian bilingual legislationrdquo (Minutes of the 3rd meeting of BLAC 17th September
1992 p 4) As shi (實) can be construed as shiwu (實物) ie an article or a thing thus
shichan (實產) can indicate the concept of chattels to some extent One may argue that
shi (實) can also mean shizaide 實在的 (concrete) if taken this sense real estate is also a
kind of property that is concrete ie shizaide (實在的) The Chinese equivalent cannot
pose a real contrast with real estate However it is already the best choice we have This
proves that a complete and precise understanding of the translated terminology requires
frequent reference to the common law semantic system
Example 2 Chose in action
The official translation for the term ldquochose in actionrdquo is jufa quanchan (據法權產)81
In the common law chose in action is a rather complicated and evolving concept relating
80 Further references to this dictionary will be made in the thesis and will be abbreviated as ldquoJowittrsquosrdquo 81 In Section 9 of Chapter 23 the Chinese version for the expression ldquohellip or other legal chose in actionrdquo
is ldquo或其他的法律據法權產rdquo
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 164
to property since it is a property right which can only be claimed or enforced by legal
action as distinguished from one which is enforceable by the taking of physical
possession
BLAC once considered using wuxin dongcha (無形動產) to translate this term
However they later found it unacceptable since ldquolsquochose in actionrsquo referred to property
derived from court it would be wrong to translate it as ldquo無形動產rdquo which referred to a
different conceptrdquo (Minutes of the 10th meeting of BLAC p 28) BLAC also proposed
quanwu (權物) or quanchan (權產) for ldquochoserdquo alone as it is a kind of personal property
and ldquotherefore lsquochose in actionrsquo will be translated as lsquo法據權物rsquo or lsquo法據權產rsquo and
lsquochose in possessionrsquo will be translated as lsquo實據權物rsquo or lsquo實據權產rdquo( Minutes of BLAC
Meeting Translation of the terms relating to property 1992)
However jufa quanchan (據法權產) was finally adopted as the equivalent for chose
in action Obviously jufa (據法) is a better expression than faju (法據) for it sounds more
natural and more compatible with the Chinese way of semantic expression Jufa (據法)
can be properly construed as gengju falu (根據法律) while faju (法據) sounds more
awkward Quanchan (權產) is better than quanwu (權物) since chose is considered as a
kind of personal property Therefore the translation for property should be consistently
chan (產) instead of wu (物) In Mainland China there are mainly two translations for this
term One translation is quanli dongchang (權利動產) which emphasizes that it is a kind
of quanli 權利 (right) relating to property (Xu 2004 p 296) The other translation is
sutiwu (诉体物) which sounds rather awkward and the emphasis is placed on the meaning
of susong 诉訟 (action) (Shi trans 1998) The official translation in Hong Kong is the
best of the three available since it effectively conveys the legal meaning of the English
term and seems more transparent to the readers
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 165
Example 3 Fee simple
The term ldquofee simplerdquo is translated as yongjiu chanquan (永久產權)82 In the
common law ldquofee simplerdquo describes the absolute title to land The term consists of two
words ldquofeerdquo and ldquosimplerdquo Fee means an estate of inheritance in real property while
simple means absolute or without limitation Thus fee simple is the largest recognized
estate in land a title without limitation or end The legal meaning of such a technical term
is clear Accordingly the Chinese equivalent of this term typically consists of two
existing Chinese words yongjiu (永久) and chanquan (產權) meaning permanent title to
real property The Chinese equivalent is easily understood One can see that this is
ownership which lasts forever but this in fact conveys only one essential part of the
meaning of fee simple The full and exact meaning resides in and must be retrieved from
the common law Fee simple is not only permanent ownership of indefinite duration but
something freely transferable and inheritable and is thus used to describe ldquoa freehold
estate of inheritance absolute and unqualified It stands at the head of estates as the
highest in dignity and the most ample in extentrdquo (Jowittrsquos p 779)
Example 4 Estoppel83
82 In Section 6 of Chapter 1014 the Chinese version for the sentence ldquohellip shall vest in the trustees in
fee simplerdquo is ldquo須以永久產權形式歸屬受託人rdquo 83 According to Jowittrsquos estoppel is ldquoa rule of evidence whereby a party is precluded from denying the
existence of some state of facts which he has previously asserted An action cannot be founded on an
estoppel hellip Unlike other evidence an estoppel must be pleaded An estoppel may be waivedrdquo (p 725)
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 166
The translation for the ldquoestoppelrdquo is burong fanhui fa (不容反悔法)84 Estoppel is a
very complex legal term dealing with the role of conscience and truth in a court
proceeding It ldquohellip is a principle of justice and of equity It comes to this when a man by
his words or conduct has led another to believe in a particular state of affairs he will not
be allowed to go back on it when it would be unjust or inequitable for him to do sordquo
(Denning MR p241)85 The doctrine of estoppel evolved over a period of one hundred
years to become a general principle in the common law
The Chinese translation of this technical term is phrasal in form and combines the
meanings ldquonot permittedrdquo (burong 不容)ldquodenyrdquo (fanhui 反悔) and ldquorulerdquo (fa 法)86 We
can partly understand the meaning of this newly created Chinese term from its form
However we still need to resort to the common law to understand it fully87 In Mainland
China there are several different translations for this term such as jinzhi fangong (禁止翻
供)jinzhi fanhui (禁止反悔)bude fouren (不得否认) (Shen 1993 p 65)jinzhi
fanyan(禁止反言) (Li 1988 p 596) and jin fanyan (禁反言) (Yang 1997 p 124) By 84 In Section 98 of Chapter 528 the Chinese version for the expression ldquolaw of estoppelrdquo is ldquo不容反悔
法rdquo 85 Denning MR in Moorgate Mercantile Co Ltd v Twitchings [1976] 1 QB 225 CA at p241 86 Susie Dent (2004) a language expert has an observation about the coined words The
extraordinary thing about new words is that probably only about one percent of them are new Most are
old words revived and adapted (p 8) Thus Semantic change of an old word namely specialisation
generalisation and metaphorical change of a word is a common way of coining new words 87 Stroundrsquos Judicial Words and Phrases also gives an interpretation of the term
Estoppel is a complex legal notion involving a combination of several essential
elementsmdashstatement to be acted upon action on the faith of it resulting detriment to the actor
Estoppel is often described as a rule of evidence as indeed it may be so described But the
whole concept is more correctly viewed as a substantive rule of law hellip Estoppel is different
from contract both in its nature and consequences But the relationship between the parties
must also be such that the imputed truth of the statement is a necessary step in the constitution
of the cause of action But the whole case of estoppel fails if the statement is not sufficiently
clear and unqualified (p 943)
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 167
comparison the official translation in Hong Kong is better since it conveys the legal
meaning of the English term more precisely emphasizing that estoppel is an important
legal principle in the common law
We can see that compound terms are essential in creating Chinese equivalents for the
technical terms Sager (1990) laid out the principles for such term creation88 However
he also acknowledged that the communicative dimension of term creation should be
considered relatively less important Perfect communication could never be achieved as it
required that ldquohellip the recipientrsquos state of knowledge after reception of the text corresponds
exactly to the senderrsquos intention in originating the messagerdquo (Sager 1990 p 100) In the
present case the target readers could be both legal specialists and ordinary people and
their knowledge of the law might differ greatly It is not possible for translators to take the
knowledge scope of all their readers into consideration To assume that a Chinese
translation can ever be produced which will be fully understood by Chinese native
speakers is entirely fallacious since the English common law is opaque for most English
native speakers To transfer the cultural meaning of common law terminology will always
requires conceptual adjustments of the translating language ie Chinese
(b) Adopting an existing word and assigning a new meaning to it89 88 Sager (1990) pointed out that ldquothe International Organization for Standardization (ISO) has for many
years been concerned with providing guidance on the creation of terms hellip ISO document ISOR 704
(Naming Principles)rdquo (pp 88-89) Sagerrsquos highly idealistic requirements include ldquoThe term must relate
directly to the concept the term must be lexically systematic hellip there should be no synonyms
whether absolute relative or apparent hellip terms should not have homonyms hellip be monosemicrdquo (pp
89-90) 89 The English lexicographer Susie Dent (2004) observes of coined words The extraordinary thing
about new words is that probably only about one percent of them are new Most are old words revived
and adapted (p 8) Thus semantic change of an old word namely specialization generalization and
metaphorical change is a common means of coining ldquonewrdquo words
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 168
Creating a new word may not always be the best way of translating terms of art in
the common law In some circumstances lexical expansion (redefinition) is another
option Examples include plaintiff (yuangao ren 原告人) defendant (beigao ren 被告人)
petitioner (chengqing ren 呈請人) respondent (dabian ren 答辯人)90 The legal translator
adopts the existing Chinese legal terms as the translations for the above three technical
terms in the common law However we should be aware that as Chinese equivalents for
common law terms they have different connotations under different legal systems
(2) Translation of semi-technical terms
Semi-technical terms ldquoare much more numerous and their number is constantly
growing as the law changes to meet the developing needs of a societyrdquo (Alcaraz amp
Hughes 2002 p 17) Moreover their semantic meanings are much more complicated
thus constantly setting traps for the translator and creating a labyrinth of semantic
connotation ambiguity partial synonymy and context-dependence A number of such
legal terms may not have a fixed legal meaning in the source text as they will carry
different and specific legal meanings in differing contexts these meanings being
90 BLAC came to a final decision after a number of meetings It once had the following list showing
the proposed Chinese translations for ldquodefendantrdquo ldquoespondentrdquo etc
Existing translation LDDrsquos
Proposal
1 Plaintiff 原告人 原告人
2 Defendant 被告人 答辯人
3 Respondent 答辯人 應訴人
4 Petitioner 入稟人 入稟人
5 Accused 被告 被告
(Minutes of the 22nd meeting of BLAC p 7)
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 169
determined either by the definitions given within the context or by knowledge imported
from common legal practice When translating most of such terms there is no need to
deliberately create new equivalent terms in Chinese since most of them already have
Chinese equivalents for their ordinary meanings As such terms can be further divided
into three sub-categories a variety of translation methods will be discussed
(a) For the first typemdashwhere the legal meaning of the term is shared with its core
meaning the established Chinese equivalent will be adopted However we need to
refer to metalinguistic devices to redefine the meaning in a common law context The
following examples illustrate the nature of the problem
Example 1 Abandonment
Since this term has several legal meanings in the common law one of the official
translations for the term is fangqi (放棄)91 The core meaning of the term is to leave
completely to give up or withdraw One of its legal meanings is shared with its core
meaning ie ldquothe relinquishment of an interest or claimrdquo (Jowittrsquos p 3) So it could
be the ldquoabandonment of a vessel by the crewrdquo ldquothe surrender of a child to an adopted
parentrdquo or an abandonment of possession a right an undertaking or a contract
(Strouds Judicial Dictionary of Words and Phrases p 4)92 In all the above contexts
the existent Chinese term fangqi (放棄) is adopted to convey the said legal meanings
Example 2 Attempt
91 The heading Section 6 of Chapter 221G is ldquoabandonment of applicationrdquo and the Chinese version
reads ldquo申請的放棄rdquo 92 Further references to this dictionary will be made in the thesis and will be abbreviated as ldquoStroudrsquosrdquo
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 170
The official translation for ldquoattemptrdquo is qitu (企圖) The legal meaning of the term is
shared with its core meaningmdashto make an effort at something However as a common
law offence the term attempt is a rather complex legal concept and has been used in a
technical way Attempt ldquois an offence to do any act which is a step not being a merely
preparatory one towards the commission of an offencerdquo (Roebuck 1995 p 73)93 Thus
the legal intention or intent is an essential constituent of the offence of attempt to commit
a crime BLAC once proposed to borrow weixu zui (未遂罪) as used in Mainland China
and Taiwan as the translation However it later found that the concept behind weixu zui
ldquo未遂罪rdquo did not coincide exactly with that of ldquoattemptrdquo in the common law So after
rounds of discussions it finally adopted the existing Chinese term expecting that legal
experts or readers would turn to the numerous case laws to interpret the Chinese
equivalent of the term (Minutes of 10th meeting of BLAC p 12)94
Example 3 Confession
The official translation for ldquoconfessionrdquo is gongren(供認)95 The act of telling or
making known something that is seen as wrong or damaging to oneself is the core
meaning of the term In its legal usage it refers to telling the crime one has committed
93 It is ldquoan endeavour to commit a crime or unlawful act the doing of some offence an act done with
intent to commit a crime and forming part of a series of acts which would constitute its actual
commission if it were not interruptedrdquo (Jowittrsquos p 115) 94 Roebuck (1996) used the Chinese equivalent weixu zui (未遂罪) in the book Digest of Hong Kong
Criminal Law (p 39) However in the Index and Glossary of the book attempt was translated as qitu
zui (企圖罪)
95 In Section 51 of Chapter 227 the Chinese version for the expression ldquothe confession of the
defendant rdquo is ldquo被告人的供認rdquo
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 171
which can be admitted as evidence96 While gongren (供認) is capable of conveying the
termrsquos fundamental concept it should always be construed with reference to its common
law legal context This involves noting inter alia that ldquoIn civil procedure a confession is
a formal admission In criminal law a confession is an admission of guilt made either
judicially that is in the course of a judicial proceeding or not Judicial confession may
operate as an estoppel and if plenary is sufficient to found a conviction as where a
prisoner pleads guilty An extrajudicial confession never operates as an estoppelrdquo
(Jowittrsquos p 415)
Example 4 Negligence
The term ldquonegligencerdquo is officially translated as shuhu (疏忽)97 The core
meaning of the term is failure to act with the prudence In the common law
ldquonegligence is not just a state of mind but rather the failure to meet an objective
standard of behaviour the standard of conduct expected of a reasonable person helliprdquo
(Roebuck 1995 p 20) Since part of the termrsquos legal meaning overlaps with its
ordinary meaning the ordinary Chinese equivalent was adopted as its legal equivalent
In the common law the term ldquonegligencerdquo is a rather complex legal concept in the
law of tort The concept of negligence is central to the tort system of liability The
negligence concept centres on the principle that every individual should exercise a
96 Stroudrsquos gives interpretation for the term ldquoconfessionhellipis an admission the words of which
considered objectively and in their context expressly or substantially or inferentially admit guilt
(Anandagoda v R [1962] 1 WLR 817)rdquo (p 547) 97 In Chapter 71 the Chinese version for the expression ldquonegligence or other breach of dutyrdquo is ldquo疏忽
或其他不履行責任rdquo
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 172
minimum degree of ordinary care so as not to cause harm to others98 Thus duty of
care breach of the duty causality and injury are four essential elements of the offence
of negligence There is a long list of judicial interpretations for this term running to 21
entries in Stroudrsquos Again the legal concept of negligence could only be properly
construed against the semantic referential scheme of the common law
Example 5 Public Place
The term ldquopublic placerdquo is translated into gongzhong defang or gongzhong
changsuo (公眾地方公眾場所) which at first glance seems the same as the termrsquos
ordinary meaning in Chinese However a close examination would show that the
legal meaning of the term is not exactly the same since ldquothis expression occurs in
many Acts of Parliament which declare such and such a thing to be an offence if done
in a lsquopublic placersquo In each case the meaning depends upon the context and upon the
object of a statute A place may be a public place at one time and not at other timesrdquo
(Jowittrsquos p 1461) Strouds also has 21 entries for case law definitions and the Hong
Kong Ordinances also contained their own definitions99 The legal meaning of the
98 The term negligence has ldquotwo meanings in the law of tort it may mean either a mental element
which is to be inferred from one of the modes in which some torts may be committed or it may mean
an independent tort which consists of breach of a legal duty to take care which results in damage
undesired by the defendant to the plaintiff rdquo (Jowittrsquos p 1227) 99 Section 3 Interpretation of words and expressions of Chapter 1 INTERPRETATION AND
GENERAL CLAUSES ORDINANCE in the Hong Kong Ordinances stipulates
public place (公眾地方公眾埸所) means-
(a) any public street or pier or any public garden and
(b) any theatre place of public entertainment of any kind or other place of general resort
admission to which is obtained by payment or to which the public have or are permitted to have
access
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 173
term is thus heavily context-dependent100 It should be noted that translation of such a
semi-technical term usually needs much research on the part of the legal translator
including an examination of its different common law contexts
(b) For the second typemdashwhere part of the legal meaning of the term overlaps with its
core meaningmdashwe can once again use the ordinary Chinese equivalent plus lexical
expansion or we can create a new term The legal meaning of these terms can be
inferred from various interpretations of cases Therefore frequent reference to the
cases is a better way to understand meanings in different contexts Examples include
the following
Example 1 Discharge
The two main entries for ldquodischargerdquo in the official translations are jiechu or jieyue
(解除 or 解約) In its ordinary usage the core meaning of discharge is to relieve of
obligation responsibility etc In its legal usage meanings differ with different contexts
and part of the legal meaning overlaps with the ordinary meaning When used in the sense
of ldquoto discharge a right or obligationrdquo101 or to be ldquofreed from hellip debts provable in the
100 Roebuck (1995) also pointed out the different interpretation of the term in different contexts in the
Hong Kong case laws
The phrase lsquopublic or a section of the publicrsquo was discussed in Wong Pik-har [1987] HKLR 373
private premises may also be a public place A shop is a public place while it is open Ng
Chun-yip [1985] HKLR 427 Similarly the corridor of a domestic building is at all times a
public place hellip In Lam Shing-chow CA 18385 it was held that a common corridor on the
twelfth floor of a private building was not a public place because neither the public nor a section
of the public were permitted access to it (pp 164170) 101 For example in section 33 of Chapter 29 ldquoa good dischargerdquo is translated as ldquo充分的責任解除rdquo
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 174
bankruptcyrdquo (Jowittrsquos pp619-20)102 the existing Chinese equivalent jiechu (解除) was
adopted When used in the law of contract a discharge of contract means that the contract
is no longer binding Therefore another Chinese term jieyue(解約)103 was adopted to
express this concept
Example 2 Malice
The term ldquomalicerdquo is officially translated as eyi (惡意)104 When used as an ordinary
term malice means desire to cause pain injury or distress to another However this term
as applied to the common law does not necessarily mean that which must proceed from a
spiteful malignant or revengeful disposition but a wrongful act injurious to another The
Chinese equivalent eyi (惡意) also means spiteful mind but should be construed with
reference to its common law meaning105 We will further analyze in this section the
translation of malice in the context of translating the case law into Chinese to show the
significance of building a metalanguage and developing the semantic referential system of
the common law in Chinese
Example 3 Remainder
102 For example in section 30 of Chapter 401 ldquodischarge from bankruptcyrdquo is translated as ldquo解除債
務rdquo 103 For example in section 18 of Chapter 23 ldquodate of dischargerdquo is translated as ldquo解約日期rdquo 104 In Section 51 of Chapter 221 the Chinese version for the expression ldquostands mute of malicerdquo is ldquo出
於惡意而保持緘默rdquo 105 According to Jowittrsquos malice is ldquoa formed design of doing mischief to another technically called
militia praecogitata or malice prepense or aforethought hellip malice in common acceptance means
ill-will against a person but in its legal sense it means a wrongful act done intentionally without just
cause or excuserdquo (p 1136)
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 175
The official translation for the term ldquoremainderrdquo is shengyu quanyi (剩餘權益)
When used as an ordinary term remainder means something that remains or is left In its
legal usage remainder means the interest in land or property owned by a person who
enjoys no benefit from the property now but expects to come into possession in due
course of time and the term is thus used in rather technically in the law of property
Therefore a new compound term shengyu quanyi (剩餘權益) was created to express
this concept The term is obviously composed of two Chinese terms shengyu (剩餘
remaining) and quanyi (權益 interest)
(c) The third typemdashwhere the legal meaning of the term totally deviates from its ordinary
meaningmdashcan be treated in the same way as terms of the first type ie terms of art or
legal terms having a technical meaning The two major approaches are the creation of
a new term or the adoption of existing term with redefinition
Example 1 Abandonment
The other official translation for the term as used in the expression ldquonotice of
abandonmentrdquo is weifu tongzhi (委付通知)106 This legal meaning is totally different
from the core meaning It should be thus noted that ldquo the word lsquoabandonrsquo is one in
ordinary and common use and it in its natural sense well understood but there is not
a word in the English language used in a more highly artificial and technical sense
that the word lsquoabandonrsquo in reference to constructive total loss it is defined to be a
cession or transfer of the ship from the owner to the underwriter and of all his
property and interest in it with all the claims that may arise from its ownership and
all the profits that may arise from it including the fright then being earned (per Martin 106 We can find the term in Section 57 of Chapter 329 Marine Insurance Ordinance
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 176
B Rankin v Potter 42 LJCP 169 at p 200)rdquo (Stroudrsquos p 3) Therefore a new
Chinese term was created as the equivalent for this term in order to convey effectively
the common law legal concept
Example 2 Personal Representative
The official translation for the term ldquopersonal representativerdquo is yichan daili ren
(遺產代理人) The ordinary meaning of the term is a person who manages the affairs
of another In its legal usage it means ldquoexecutors and administrators whether acting
with regard to personal property or with regard to real propertyrdquo (Jowittrsquos p 1356)
This legal meaning deviates from the termrsquos ordinary meaning and a new Chinese
term was coined to express the concept instead of using its equivalent in Chinese as
ordinary term ie geren daibiao (個人代表)107
Example 3 Warranty
The two official translations of ldquowarrantyrdquo baozheng (保證) and baozheng tiaokuan
(保證條款) capture two different legal meanings The core meaning of the term is a
guarantee or assurance One of its legal meanings overlaps with the core meaning and is
thus translated as baozheng (保證)108 The other legal meaning is ldquoa subsidiary term in a
contract as distinct from a vital term which is called conditionrdquo (Jowittrsquos p 2979)109
107 Stroudrsquos interpretation of this term reads ldquothis phrase (except when otherwise controlled by a
context) is synonymous with legal representativerdquo (p 2014) 108 The heading Section 33 of Chapter 329 is ldquoNature of warrantyrdquo and the Chinese version reads ldquo保
證的性質rdquo 109 Section 2 of Chapter 26 gives the interpretation of the term ldquowarrantyrdquo
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 177
Thus in the law of contract warranty is different from condition since a breach of
condition justifies the termination of the contract while a breach of warranty does not110
This legal meaning deviates from the termrsquos core meaning and is thus officially translated
into baozheng tiaokuan (保證條款) which is a newly created compound term in Chinese
One might well think that baozheng tiaokuan (保證條款) has a close connection with
baozheng (保證) but as a matter of fact they express two different common law concepts
Another suggested translation is ciyao tianjian (次要條件) which is also a testimony to
the value of neologism and may convey the legal meaning of warranty against condition
more precisely111 In this case the creation of a new term would seem a better choice
Thus far we have illustrated the process of translating common law terminology
where adjustments of the Chinese legal vocabulary on the linguistic level and frequent
reference to the semantic referential system of the common law are both indispensable
It will be remembered that in section 61 of this chapter we have already provided a
summary of the metalinguistic tools that could be employed by the legal translator on
ldquowarranty (保證條款) means an agreement with reference to goods which are the subject of a contract
of sale but collateral to the main purpose of such contract the breach of which gives rise to a claim for
damages but not to a right to reject the goods and treat the contract as repudiated
(Amended 59 of 1989 s 20) 110 Lord Denning in Oscar Chess Ltd v Williams [1957] 1WLR 370 111 Zhao (1995) also discusses the translations of condition and warranty She remarks
In Chinese legal terminology we have zhuyao tiaokuan (主要條款 major terms) and ciyao
tiaokuan (次要條款 subordinate terms) But the Chinese contract law does not take the same
approach as Common Law to distinguish between terms in order to determine remedies hellip It
is submitted that the better choice will be the use of functional equivalents zhuyao tiaokuan
(主要條) and ciyao tiaokuan (次要條款) to express ldquoconditionrdquo and ldquowarrantyrdquo Both Chinese
terms can achieve the desired legal effects (pp 300-01)
Functional equivalence is not a good choice for translating the common law into Chinese since it
will result in confusion between the legal terms used in different legal systems
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 178
the conceptual level to effect cultural transfer Let us scrutinize these methods of
constructing a metalinguistic mechanism
(1) Appending translatorrsquos preface or footnote or any other commentaries or
explaining why and how the translation was done in related articles
The classic example here is the ldquoMemorialsrdquo in which Shen Jiaben expounded the
translated concepts of foreign laws already referred to in section 422 Especially
where the translation of Hong Kong Ordinances is concerned we find that legal
translators strive to spell out explanatory remarks identifying the translation objective
and approach and explain why and how the translation was done in related articles
The Bilingual Laws Information System (BLIS) is a valuable database of laws of
Hong Kong providing both English and Chinese versions of the current laws of Hong
Kong a glossary and other useful information which testifies to the impressive
translation project completed by the former Legal Department under the supervision
of the Bilingual Laws Advisory Committee (BLAC)112 The minutes of BLAC
meetings also serve as important metalanguage explaining how and why the
translations are made as shown by our discussions above Another method which is
particularly important is the translatorrsquos notes which he adds to the translated text to 112 Thus the Law Drafting Division of the Department of Justice as the statutory body of translating
the Common Law into Chinese has created as its flagship product the BLIS (Bilingual Laws
Information System) one of the largest ever legal databases and a valuable metalinguistic tool With its
many products including a CD-ROM English-Chinese Glossary of legal terms published in 1995 and a
Chinese-English Glossary of Legal Terms published in December 1999 the Law Drafting Division of
the Department of Justice has made very significant efforts to enhance the learning of common law
terminology and promote the Chinese semantic referential system of the common law It also writes
articles on bilingual legal issues for the well received magazine Hong Kong Lawyer
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 179
give some specifications or provide further information Necessary knowledge of the
context can be given more effectively through explanations in the text or in footnotes
But in translating the common law legislation this format may not prove practical If
we look at the current English Ordinances of Hong Kong we find that Chapter One
Interpretation and General Clauses Ordinance provides overall guidance on how to
interpret the Chinese equivalent for the English terminology with reference to the
common law context Every chapter also has a section headed ldquoInterpretationrdquo which
gives the proper construction of some English terms used in the ordinance
supplemented with their Chinese equivalents This is a significant step providing a
conceptual link between English terms and their Chinese equivalents and in fact
serves much the same function s a translatorrsquos note If we look at the ldquoDiscussion
Paper on the Laws in Chineserdquo prepared by the Attorney Generalrsquos Chambers of Hong
Kong we find there a statement concerning the use of metalanguage ldquothe
Interpretation and General Clauses Ordinance should be amended hellip to deal with the
problem of a discrepancy between the meaning of the English text of a law containing
an expression of the Common Law and the Chinese text using an expression which is
not one of the Common Lawrdquo Also the methodologies employed in the process of
establishing well-formed Chinese equivalents for common law terminology have been
clearly set out by the Law Drafting Division of the Department of Justice in a number
of articles in Hong Kong Lawyer the official journal of the Law Society of Hong
Kong113 113 An article provided by The Law Drafting Division of the Department of Justice examines the need
for the gradual development of standard Chinese terms to explain Common Law and statutory concepts
An extract reads
When selecting the Chinese term we must consider the lsquoadequacyrsquo and lsquoacceptabilityrsquo of the
term hellip Usually semantic mapping is used for legal translation There are two ways of semantic
mapping One is to employ an existing Chinese term to represent a Common Law concept The
other is to coin a new Chinese legal term by combining existing morphemes Bilingualism in the
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 180
(2) Translation of related legal works into Chinese
The following legal works have already been translated into Chinese (a) reports
of Chinese cases in the Hong Kong Law Reports and Digest and Hong Kong Cases (b)
important cases provided by the Judiciary and some law reports have been published
in both English and Chinese versions (c) Hong Kong Lawyer as the official
magazine of the Law Society of Hong Kong carries a section which provides the
Chinese translations of key legal phrases taken from judgments (d) several law
digests have been published including Chinese Digest of Hong Kong Contract
Law(1995) Chinese Digest of the Criminal Law of Hong Kong (1996)Chinese Digest
of the Criminal Procedure Law of Hong Kong (1996) and Chinese Digest of the
Common Law of Hong Kong114 In addition to the above works it is also desirable to
translate specialized Common Law dictionaries into Chinese such as A Dictionary of
Modern Legal Usage115 Strouds Judicial Dictionary of Words and Phrases and
compile books focusing on the legal concepts of Common Law such as Digest of Case
Law Principles
Common Law necessarily involves the use of Chinese A collection of Chinese Common Law
terms that are stable and clear will assist greatly in the development of bilingualism in the
Common Law For this purpose if there is standardisation of the translation of Common Law
concepts these concepts will be matched more readily with their Chinese equivalents This is
beneficial for the lsquorootingrsquo of the Common Law in the Chinese language and provides standard
Chinese references for Common Law concepts hellip Standardisation of the translations will
expedite the absorption of Common Law concepts by the Chinese language Standardisation of
translations for Common Law concepts is also beneficial for judicial interpretationhellip
Nevertheless a translation produced with due regard to all these factors will be much more
concerned with lsquoadequacyrsquo and may lack lsquoacceptabilityrsquo as it presently stands (in ldquoThe Common
Law and the Chinese Languagerdquo Hong Kong Lawyer February 1999) 114 This is a project conducted by Roebuck Derek and King-kui Sin 115 In its first edition A Dictionary of Modern Legal Usage became a classic in its field The first
comprehensive guide to legal style and usage it filled a gap in reference literature by giving practical
advice on how to write clear jargon-free legal prose
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 181
(3) Compiling an English-Chinese legal dictionary
Another efficient way to build the semantic referential system for the Chinese
equivalents of common law terms is to compile a dictionary with commentary We
have demonstrated that the basic requirement in translating terminology is to achieve
semantic equivalence However semantic equivalence alone is not enough since
meanings can often only be worked out when terms are considered in context and
when the cultural concept of terms is properly transferred Such contextual knowledge
can be supplied by amplifications in the translated text (footnotes) or separately in
appendices (glossaries) Adequate cross-referencing of entries thus seems an ideal
metalinguistic tool to establish a common law semantic reference system116 The
Hong Kong English-Chinese Legal Dictionary (2005) published by Butterworth is a
good recent example of its kind
To illustrate the two levels of cultural transfer and further justify the conceptual
transfer at the metalinguistic level further analysis of selected translations will be
furnished The foregoing discussion shows where new terms are created in Chinese
their meaning may seem transparent and can be easily identified Yet the reader still
needs to resort to metalanguage to understand the concepts of the newly-created terms
In translating semi-technical terms legal translators often employ lexical expansion
using an existing Chinese term to express the new common law concept This makes
it difficult for the reader to determine whether the term is common law Chinese or
116 Trsquosou amp Kwok (2003) also point out the immaturity of English-Chinese dictionaries in Hong Kong
There are many comprehensive English dictionaries of law (eg Garner 1999) but standard
references for legal Chinese in Hong Kong have not matured to the same level Most of them
exist in the form of a glossary with only very crude definitions if any (eg Department of
Justice 1998 Department of Justice 1999 Li amp Poon 2000) (p 612)
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 182
ordinary Chinese In such a case it is even more important to resort to metalanguage
as a mirror for cultural transfer at the conceptual level
The analysis of translated legal terms serves as the paradigm of cultural transfer
at the lexical level Discussions of translated legislative texts and judgments would
further illustrate the operation of cultural transfer In addition translation of the
judgments itself is of vital importance to construct the metalanguage since judgments
are not only important because they settle specific disputes and contain solutions to
legal problems but also because they have shaped much of the culture of the law ie
legal concepts and legal principles We shall take the example of translations of the
term ldquomalicerdquo in the legislation and case law as a simplified case to illustrate cultural
transfer on the textual level We will analyze how the legal concepts and legal
principles relating to ldquomalicerdquo are developed in the case law117
117 Poon (2005) points out that BLAC used to refer to the case law in defining the Common Law terms
She also uses the example of ldquomalicerdquo defined thus
In law an act is malicious if done intentionally without just cause or excuse (per Bayley J
Bromage v Prosser 4B amp C 255)
1 ldquoMaliciouslyrdquo means and implies an intention to carry out an act which is wrongful to the
detriment of another (Mogul Co v McGregor[1892] AC 25 (HL))
2 The word ldquomalicerdquo refers not to intention but to motive (R v Tolson (1889) 23 QBD 168)
3 Where any person wilfully carries out an act injurious to another without lawful excuse he
does it maliciously (per Lord Blackburn R v Pembliton (1874) LR 2 CCR 119)
4 Where a person has a malicious intent against another and in carrying it out injures a third
person he is guilty of malice against the person he has injured (per Coleridge v Latimer 17
QBD 359)
5 ldquoMaliciouslyrdquo in S 16 Offences Against the Person Act 1861 means ldquowilfully or intentionally
and without lawful excuserdquo (R v Mowatt [1968] 1 QB421)
6 For a person to be guilty of ldquomalicious woundingrdquo mere recklessness is not enough (W (A
Minor) v Dolbcy [1983] Crim LR681) (p 319)
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 183
Example 11 (legislation)
In an action for a libel contained in any newspaper it shall be competent to the defendant to set up
as a defence that the libel was inserted in the newspaper without actual malice and without gross
negligence hellip (Cap4 Sect 21)
The official translation is as follows
在因任何報刊刊載的永久形式誹謗而進行的訴訟中被告人有權提出在該報刊刊登的永久形
式誹謗並不含實際惡意亦無嚴重疏忽hellip(第 4 章 第 21 條)
We see that ldquomalicerdquo is translated as eyi (惡意) which is also an ordinary Chinese
term Evidently the legal translator has employed the technique of lexical expansion to
give it new meaning On the linguistic level the common law term ldquomalicerdquo has been
successfully encoded as eyi (惡意) in Chinese and we can appropriately say that eyi
(惡意) is the semantic equivalent of ldquomalicerdquo Now let us see how translations of the
excerpted case law transfer the legal culture at the metalinguistic level By translating
the excerpted judgments the concept of ldquoactual malicerdquo in the common law and
related legal principles especially in defamation cases can be transferred into
Chinese
Example 12 (judgment)
There are two sorts of malice malice in fact and malice in law the former denoting an act done
from ill-will towards an individual the latter a wrongful act intentionally done without just cause
or excuse118
118 Bayley J in Bromage v Prosser
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 184
Translation by the author is as follows
惡意分兩種事實惡意與法律上的惡意前者指對他人出自的惡意行為後者是蓄意的錯誤
作為且沒有確當的原因或辯解
Example 13 (judgment)
Express or actual malice is ill will or spite towards the plaintiff or any indirect or improper
motive in the defendants mind which is his sole or dominant motive for publishing the words
complained of
Translation by the author is as follows
顯明惡意或實際惡意是在被告的思想中對原告存有或非直接的不恰當的動機且此動機
為被告在發佈他所被控的言辭時獨有或主要動機
Example 14 (judgment)
Malice could also be established by inference if the court was satisfied that the defendant did not
believe what she said was true or she knew or believed that the defamatory statements were
false119
Translation by the author is as follows
惡意可被推定建立如法庭信納被告不相信她自己所說的是事實或她知道或相信誹謗的陳述
是假的
119 HO PING KWONG V CHAN CORDELIA [1989] 2 HKC 415
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 185
Example 21 (legislation)
Where a person kills another in the course or furtherance of some other offence the killing shall
not amount to murder unless done with the same malice aforethought (express or implied) as is
required for a killing to amount to murder when not done in the course or furtherance of another
offence (Cap339 Sect 2)
The official translation is as follows
(1) 凡殺人行為並非在犯其他罪行的過程中或為了進行其他罪行而作出而該殺人行為
必須具備某種(不論是明示或默示的)的預懷惡意(下稱ldquo前述預懷惡意rdquo)方足以構成謀
殺罪則任何人如在犯其他罪行的過程中或為了進行其他罪行而殺死他人其殺人
行為除非具備與前述預懷惡意相同的預懷惡意否則不構成謀殺罪(第 339 章 第 2
條)
When faced with such a legislative text the legal translator must delve into the
cultural concepts of the specified legislation in order to produce a Chinese legal text
with the same meaning The ordinance belongs to an important branch of the
Common Lawmdashthe criminal law and deals with one offence in criminal law murder
The doctrine presumes malice aforethought on the basis of the commission of a felony
inherently dangerous to human life Now let us look at how the concept of ldquomalice
aforethoughtrdquo is defined in the case law120
120 Roebuck (1995) also explained malice aforethought (express or implied) in his Hong Kong
Criminal Law which provided the Chinese translation of the judicial interpretations lt杀人罪條例gt第 2 條第(1) 款提到ldquo明示的或默示的rdquo 惡意預謀明示的惡意指殺人的故
意默示的惡意指重傷的故意[見常威強 Tsang Wai-keung(1973)]HKLR 159 一案 (p 84)
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 186
Example 22 (judgment)
There is no doubt that murder is killing with malice aforethought and there is no doubt that
neither the word malice nor the word aforethought is to be construed in any ordinary sense
The whole phrase is to be interpreted according to principles that have been laid down in
decided cases Next it is clear that there is malice aforethought if a person kills with intent to kill
or do grievous bodily harm see R v Vickers121
Translation by the author is as follows
毫無疑問謀殺就是ldquo有預懷惡意的rdquo 殺人且毫無疑問的是ldquo惡意rdquo 一詞與ldquo預懷rdquo 一詞都不
可用它們平常的意思來理解這個詞組應按照先例中定下的法律原則來解釋其次很明
顯凡有人意圖殺人或嚴重傷人必有預懷惡意存在
Example 23 (judgment)
We are not here concerned with the meaning of malice in the Common Law definition of murder
still less with its meaning in relation to the law of libel and slander where indirect motive is of
importance There is no case other than R v Syme and R v Johnson (with which we will presently
deal) in which it has ever been suggested that indirect motive has anything to do with the
meaning of the word maliciously in Acts creating criminal offences122
Translation by the author is as follows
在此我們並不是要討論在惡意一詞在普通法謀殺罪定義中的意思更不是要討論它在誹謗
法中的意思在這兩者中非直接的動機佔有重要位置 沒有其他案例能象在 R v Syme
121 All England Law Reports1973Volume 3 R v Hyam - [1973] 3 All ER 842 122 All England Law Reports1969Volume 3 R v Solanke - [1969] 3 All ER 1383
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 187
和 R v Johnson 案件中(這是我們目前審理的案件)非直接的動機與ldquo惡意地rdquo 一詞在法例
中構成刑事罪行的意思更為相關
We can observe that the common law standard of malice generally required the
tort law to support an award of punitive damages In the law of slander we can see
that malice is one of the elements of liability and the plaintiff may meet a case of
privilege thus made out on the part of the defendant by proving actual malice that is
actual intent to cause the damage complained of In dealing with the criminal law an
act malicious in common speech means that harm to another person was intended to
come of it and that such harm was desired for its own sake as an end in itself
Therefore as discussed in section 61 legal translation as cultural transfer takes place
at two levelsmdashlinguistic level and conceptual level When translating the term
ldquomalicerdquo in the legislation the legal translator produces the Chinese equivalent for the
term on the linguistic level by adjusting the translating language Metalinguistic
devices should be built in order to transfer all the cultural elements behind this legal
term into Chinese One effective method is to translate the judgments related to the
legal concept under review The above translations of excerpted legislation and
judgments serve as a simple example of the type of work needed to establish the
metalanguage of the common law in Chinese
Using study of cultural transfer in legal translation in this thesis as its basis a
more comprehensive examination of the translation of legislation and judgments
relating to legal terminology could be an interesting field of further research This
might include the translation of legislation and judgments relating to legal
terminologies studied previously such as abandonment fee simple chose in action
chattel confession and warranty to name a few To conclude transfer of the culture
of the common law into Chinese requires adjustments on both the linguistic and
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 188
conceptual level in particular the building of metalinguistic tools in Chinese until the
whole semantic reference system of common law Chinese is eventually laid bare
Chapter 7
Concluding Remarks
We began this study by reflecting on the notion of cultural transfer in translation theory
As noted in the introductory chapter translation theorists expended much effort in developing
theories centering on linguistic transcoding especially on linguistic equivalence The
characterization of translation as cultural transfer is an outcome of the cultural turn in
translation theory
We have particularly in section 21 noted that the notion of cultural transfer when
employed to characterize translation as a socio-cultural activity as opposed to a mere act of
linguistic transcoding can be understood in two diametrically opposite senses On the one
hand it is taken to mean the mapping of cultural elements of the source text onto their
equivalents in the culture of the target text On the other hand it is taken to mean the
importation of the source culture into the target culture which necessitates linguistic and
conceptual adjustments of the translating language Understood this way translation as
cultural transfer requires that a choice be made between the two basic translation strategies
ie domestication and foreignization The cultural concepts of the source language may be
either domesticated in order to facilitate cross-cultural communication or foreignized by
making both linguistic and conceptual adjustments of the target language As has been
pointed out in section 22 translation as cultural transfer is no longer a matter of finding
linguistic equivalents between languages but rather an operation of creating conceptual
semantic equivalence on the metalinguistic level Thus understood foreignization is simply a
metalinguistic operation whereby cultural transfer is effected
CONCLUDING REMARKS 190
The clarified notion of cultural transfer is vital for understanding legal translation as
cultural transfer both in respect of its theoretical foundations and practical applications In
section 22 we noted that when translating a legal text for the purpose of producing another
authentic version of the same text the legal translator is bound to foreignize the language of
the latter version to a certain extent in order to establish semantic equivalence between the
two versions Translation of the common law into Chinese thus serves as a paradigm of
cultural transfer in legal translation
That being the case our understanding of legal culture must be carefully reconditioned
by its practical reference to the common law and account for the evidence of its transference
in the legal text itself As analyzed in section 31 the very notion of legal culture has been
understood in previous studies either as peoplersquos conceptions of law or the combination of
peoplersquos conceptions and practices of law However it is not possible for the legal translator
to deal with legal culture in the sense of the practices and behaviors by legal professionals as
the final encounter of the legal translator is the legal text which embodies peoples conception
of law The aspect of legal culture which informs and underpins legal translation is the
conceptual thinking shared by legal professionals We argued in section 33 that the common
law is a deep-rooted historically molded conceptual thinking shared by legal professionals
Its legal culture is mainly reflected in two aspects legal concepts and legal principles We
also investigated in section 34 the legal culture of traditional and modern Chinese law
showing that borrowing from other legal systems and transfer of foreign laws into China has
shaped the modern Chinese law
In our analysis in section 41 of the transfer of legal culture we classified legal
transplant into two kinds legal imposition at the socio-political level and legal translation at
the socio-linguistic level On the one hand a fairly wholesale transplantation of legal system
CONCLUDING REMARKS 191
is possible for socio-political reasons even without any translation of the imported law into
the indigenous language On the other hand it is often through legal translation that foreign
laws are introduced to the indigenous people at the socio-linguistic level Compared with
legal imposition legal translation is a more fruitful way of legal transplant and cultural
transfer as is evident from Chinarsquos long history of legal translation It has also been shown in
our analysis of the memorials prepared by legal translators that the successful transfer of a
legal culture always requires the adjustments of the translating language by means of
metalinguistic devices
As this study is both a theoretical inquiry and a case study chapter 5 examined the
specific features of the common law language in which the legal concepts and legal principles
are embodied We argued that differences between the Chinese language and common law
English should not be emphasized at the expense of the translatability of the common law
legislation into Chinese Legislative translation is no doubt a limiting case of translation For
it is mandated by law that its different language texts must convey the same legal meaning so
as to regulate the same social behaviour among the people it governs If this condition cannot
be satisfied if it can be shown that equivalence in meaning is in principle unattainable then
not only will legislative translation become a futile endeavour but the foundation of all
multilingual legal systems will also collapse
To show how semantic equivalence is possible in legislative translation we proposed in
section 61 a theoretical framework for effecting cultural transfer at two different levels One
is linguistic transfer ie transfer at the linguistic level which involves the adjustments of the
Chinese language and the other is conceptual transfer at the metalinguistic level We then
carried out a detailed analysis of selected translations The focus is placed on the analysis of
the translation of common law terminology We made clear in section 62 how the two levels
CONCLUDING REMARKS 192
of transfer take place Not only should the legal translator produce the Chinese equivalents on
the linguistic level by adjusting the Chinese language but with the use of metalanguage
heshe transfers the cultural concepts into Chinese and establishes the semantic reference
system for common law Chinese ie a special domain of the Chinese language developed
for incorporating the common law
Basing our views on the works of legal and translation scholars in Hong Kong we have
shown in this study that equivalence in meaning indeed does not exist between languages as
they stand This has led many to dismiss the whole notion as illusory However equivalence
in meaning is by nature not a descriptive term Rather it is a stipulative term That is to say
two terms are equivalent in meaning if and only if they are stipulated to be so Equivalence in
meaning is established by the metalinguistic device of definition It is created not found In
the case of legislative translation this metalinguistic device operates on the legislative level
ie as part of the legislative process In other words in legislative translation equivalence in
meaning between the different language texts of the law is established by legislation not
through translation on the object-language level
Translation is of course not merely a matter of language Many things are involved in
the process Nevertheless however complicated the process is translation is invariably a
process beginning with a text and ending with another textmdashit is always from language to
language always a cross-linguistic event Whether we call this transcoding or recoding
translation remains essentially an operation with words Even when one follows cultural
theorists such as Vermeer and Snell-Hornby and re-labels translation a cross-cultural event
what we see in the end-product ie the target text remains a matter of words The
dichotomy between translation as transcoding and translation as cultural transfer is as has
CONCLUDING REMARKS 193
been shown in this study totally misguided There can be no cultural transfer without
transcoding as culture is for the most part embodied in language
As with translating Buddhist scriptures into Chinese translating the common law into
Chinese is a paradigm case of cultural transfer But again legal culture is illusory unless and
until it is embodied in language We have shown that the culture of the common law covers
the whole conceptual framework and socio-cultural background whereby the various
components of the common law are understood Part of that culture manifests itself in the
mere form of words and has to be preserved by following the same form of words in the
translation In such cases translating words is at the same time translating culture The
dichotomy between word and sense on the one hand and between word and culture simply
breaks down here But a large part of the culture of the common law can only be found
beyond the words of the law That part like equivalence in meaning cannot be handled by
translation on the same object-language level It must be handled either at the metalinguistic
level or in a separate object-level translation Once we have a clear view of how language
works and how it can be used to do what we want it to do many of the problems in
translation studies can be clarified and resolved
If this study can help clarify some of the fundamental problems concerning the notion of
translation as cultural transfer it will have achieved its intended skopos
Bibliography
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198
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Chinese Works
蔡奇林 (2002) lt六群比丘」與「六眾苾芻」 - 兼談佛典仿譯及其對漢語的影
響gt 「漢文佛典語言學國際學術研討會」論文 佛學研究中心學報 2004
年第 9 期台北市 台灣大學文學院佛學研究中心
httpccbsntuedutwFULLTEXTcfb_cbsj-2htm
何勤華等編著 (1994) 中西法律文化通論 復旦大學出版社
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金聖華冼景炬 (2004) 香港法律中譯的幾個問題 翻譯學報 2004 年第九期
香港 香港中文大學翻譯系
梁治平主編 (1994) 法律的文化解釋 生活`讀書`新知三聯書店
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楊楨 (1997) 英美契約法論 北京北京大學出版社
周長齡 (1997) 法律的起源 北京中國人民公安大學出版社
張德美 (2003) 晚清法律移植研究 北京清華大學出版社
張晉藩 (1992) 清律研究 北京法律出版社
趙秉志主編 (1996) 香港刑法 北京 北京大學出版社
張中秋 (2003) 比較視野中的法律文化 北京市 法律出版社
ii
Cultural Transfer in Legal Translation
A Case Study of the Translation of the Common Law into Chinese in Hong Kong
法律翻譯中的文化轉移 香港普通法中譯個案研究
Abstract
The term ldquocultural transferrdquo has featured prominently in contemporary
translation theory Yet perplexing as it may seem the term can and has in fact been
used to refer to two diametrically opposite concepts of translation On the one hand
ldquotranslation as cultural transferrdquo can be understood as ldquotranslation as an act of
cross-cultural communication effected by matching the cultural rather than the
linguistic elements of the two languages involvedrdquo On the other hand ldquotranslation as
cultural transferrdquo can also be understood as ldquotranslation as a process of importing or
even transplanting the culture of the source language into the culture of the target
languagerdquo Understood in the former sense translation is essentially an act of
domestication requiring no or little linguistic or conceptual adjustment of the target
language whereas understood in the latter sense translation involves both linguistic
and conceptual adjustment to accommodate the imported culture thus always
resulting in the foreignization of the target language
This study examines these two senses of cultural transfer in the context of law
translation Using the translation of the common law into Chinese in Hong Kong as a
case study it investigates which of the two senses is relevant to law translation which
aspect or aspects of the culture of the common law has or have been transferred how
such transfer has been effected and what form it has taken Through a critical analysis
iii
of the problems involved in the translating process in question it is hoped that this
study will shed some light on the question of cultural transfer and more importantly
on the nature of legal translation
This thesis is divided into two major parts Part I consists of four chapters that
provide the theoretical framework and historical background for the study Chapter 1
sets out the scope and methodology of this study by way of a brief critical account of
studies in translation theory and legal translation Chapter 2 traces the evolution of the
concept of cultural transfer in translation theory clarifies the opposed senses in which
is understood by exploring the dichotomy of domestication and foreignization and
argues why legal translation in the context of Hong Kong cannot be a case of
domestication Chapter 3 investigates the various senses of legal culture and
highlights the essential features of the legal culture of the common law Chapter 4
gives a brief historical account of the importation of foreign laws into China since the
Late Qing period (晚清) as a typical case of transfer of legal cultures examining what
such transfer involved in the process Part II is the case study of the translation of the
common law into Chinese in Hong Kong Chapter 5 examines the translatability of
the common law and analyzes the specific features of the common law language from
the aspects of its terminology legislation and case law Chapter 6 begins with a
critical analysis the problems relating to law translation in general and translating the
common law into Chinese in particular It then sets out the theoretical framework for
effecting cultural transfer It examines in detail the nature of cultural transfer in law
translation with special reference to the translation of common law terminology
Chapter 7 summarizes the study and makes some concluding remarks on its
significance for translation studies as well as its potential for future research
iv
Acknowledgments
Research is a journey of exploration Writing this dissertation has been a
challenging intellectual journey accompanied by moments of frustration
disorientation and even self-doubt One person my supervisor Dr Sin King-kui has
guided me through the twists and turns of this journey But for his patience mentoring
and encouragement I could not have completed this dissertation nor could I have
appreciated both the rigours and the joys of true scholarship He has my deepest
gratitude
I must also thank Dr Zhu Chun-shen and Dr Cheng Po-suen of my Qualifying
Panel for their valuable comments on the draft of the dissertation as well as their
unfailing support throughout my candidacy I should like too to thank the friendly
staff of the General Office of the Department who have given me enormous clerical
support in the course of my research
My thanks also go to my colleagues in the Department of Translation The
Chinese University of Hong Kong for their kind concern during the progress of my
research and their warm words of encouragement
I would like to extend a special note of thanks to my teachers in the Department
of Foreign Languages and Literature Fudan University for introducing me to the
beauties and intricacies of translation In particular I would like to thank Prof Huang
Yong-min Prof Lu Gu-sun Prof Xiong Xue-liang and Prof He Gang-qiang for
helping and encouraging me in my pursuit of further translation studies
v
I am also grateful to my fellow students and dear friends Kiki Baby Ace Sarah
Samantha Joyce Beatrice Xiao Hu Zhang Wan-min Wu Qing Shen Yuan Jiang
Qin Wen Stella Edison April Wu Xiao Sting and Lois for sharing the pains and
joys of my study
Finally I owe more than I can say to my husband Alex my sister Ciecely and
other family members for their love and unfailing support I thank my parents from
the bottom of my heart for their faith in me and for the love and support that enabled
me to embark on an academic career It is to them both that I dedicate this humble
piece of work
vi
TABLE OF CONTENTS
Title Page i
Abstract ii
Acknowledgments iv
PART I
Theoretical Framework and Historical Background
Chapter 1 Introduction 1
11 Translation Theory From Interlingual Translation to Intercultural
Translation 1
12 The Emergence of Cultural Transfer in Translation Theory 4
13 Legal Translation Theory In Search of Goal and Strategy 8
14 Rationale for the Study 12
Chapter 2 Translation as Cultural Transfer 14
21 Clarification of the Notion of Cultural Transfer 14
211 Cultural Transfer vs Transcoding 14
212 Vermeerrsquos View of Translation as Cross-cultural Transfer 24
213 Snell-Hornbyrsquos View of Translation as Cultural Transfer 28
214 Domestication vs Foreignization 35
vii
22 Legal Translation as Cultural Transfer 40
221 Legal Transplant and Legal Translation 40
222Translating the Common Law into Chinese as Cultural Transfer 46
223 Metalinguistic Devices and Cultural Transfer in Legal Translation 51
Chapter 3 The Concept of Legal Culture in Legal Translation 57
31 Previous Studies of Legal Culture 57
311 Law and Culture 57
312 Legal Culture as Conceptions of Law 62
313 Legal Culture as Both Conceptions and Practices of Law 66
32 Clarification of the Concept of Legal Culture 69
33 The Legal Culture of the Common Law 73
34 The Legal Culture of Traditional and Modern Chinese Law 77
Chapter 4 The Transfer of Legal Culture 89
41 Legal Transplant and Transfer of Legal Culture 89
411 Introduction 89
412 Legal Transplant Legal Imposition and Legal Translation 92
42 Transfer of the Legal Culture of Foreign Laws in China 98
421 Transplant of Foreign Laws since Late Qing Dynasty in China 98
422 Transfer of the Legal Culture of Foreign Laws in China 103
viii
PART II
Case Study of the Translation of the Common Law
into Chinese in Hong Kong
Chapter 5 The Language of the Common Law 106
51 The Translatability of the Common Law 106
52 Legal Terminology and Legal Concepts 112
53 The Language of the Legislative Texts and Bilingual Legislation 120
54 Case Law Languagemdashthe Language of Judges 133
Chapter 6 Cultural Transfer in Translating the Common Law into Chinese
61 Transfer of the Legal Culture of the Common Law 142
611 Problems in Translating the Common Law into Chinese 142
612 Legal Translation as Cultural TransfermdashTwo Levels of Transfer 152
62 Cultural Transfer in Translating the Common Law into Chinese
-- Analysis of Selected Translations 159
Chapter 7 Concluding Remarks 189
Bibliography 194
Chapter 1
Introduction
11 Translation Theory From Interlingual Translation to Intercultural
Translation
Traditionally regarded as a sub-field of linguistics translation was for a long
time treated as an important means of interlingual communication As Jakobson (1959)
put it ldquotranslation properrdquo was the transposition of a text from one language to
another ldquointerlingual translationrdquo as he called it ldquoinvolves two equivalent messages
in two different codesrdquo However he conceded that there was no full equivalence
between code units (1959 p 233) Jakobsonrsquos view was shared by theorists like
Catford and Nida who emphasized transference of meaning across languages and the
resultant linguistic equivalence Fidelity to the original text was considered the most
important principle governing translation and the search for best equivalence became
its primary goal Translation studies in this period stressed the textual elements
Catford for instance emphasized the correspondence of lexicon and grammar (1965)
Nida and Taber classified ldquoformal correspondencerdquo and ldquodynamic equivalence as two
major types of equivalence ldquoFormal correspondencerdquo is concerned with the message
itself and ldquodynamic equivalencerdquo with the effect (1964 1982) They acknowledged
that there were not always formal equivalents between language pairs Focusing on
the language function and relating linguistic features to the context of both the source
and target text House (1977) set out his notions of semantic equivalence and
pragmatic equivalence and proposed that the function of a text be determined by the
situational elements of the source text A more elaborate discussion of the notion of
INTRODUCTION 2
equivalence can be found in Baker (1992) who examined the notion of equivalence at
four different levels in relation to the translation process ie the word level the
grammatical level the textual level and the pragmatic level Taken together these
levels encompass all aspects of translation process
While characterizing translation as an interlingual rather than a socio-cultural
activity scholars such as Catford and Nida did not lose sight of the role that cultural
elements play in the process of translating Catford drew a distinction between
ldquocultural untranslatabilityrdquo and ldquolinguistic untranslatabilityrdquo (1964 pp101-03) Nida
examined cultural problems in translating (1981) Newmark (1988) in particular
examined untranslatable culturally specific items and put them into different
categories (p 95) However he rejected the ldquoprinciple of equivalencerdquo underlying
Nidarsquos theory of dynamic equivalence and suggested two approaches to translation
namely communicative translation which aims to produce on the target reader effects
similar to those on the source reader and semantic translation which aims to render
ldquoas closely as possible the semantic and syntactic structures of the second languagerdquo
(1988 pp 39-41) The former gives priority to the response of the target language
reader while the latter foregrounds the meaning of the original The appropriateness of
these two methods depends on the text-type and the purpose of the translation
The cultural dimension is central to both the polysystem theory of Zohar (1990)
and Touryrsquos (1980) descriptive approach The polysystem theory treats any semiotic
(poly)system (such as language or literature) as a component of a larger (poly)system
or culture Translated literature is therefore a system operating as a part of larger
social cultural and historical systems of the target culture The correlations between
literature and other cultural systems for instance language society or ideology could
INTRODUCTION 3
be seen as a functional relationship within a cultural whole By employing the notion
of norm in his treatment of translation criticism Toury (1980) pointed us in a new
direction for translation studies As he sees it translation criticism consists in the
study of metatexts produced in a given receiving culture under certain discernible
socio-cultural constraints Translation criticism therefore performs the task of
reconstructing such constraints as are operative in a particular translation It sets out to
identify constraints of translation behaviour describe the decision-making process the
translator has gone through and formulate hypotheses capable of being tested by
further studies Touryrsquos idea can be said to have inspired the ldquocultural turnrdquo in
translation studies in the 1990s
It was around this time too that translation theory began to undergo a rather
radical transformation Translation was increasingly seen as involving a conscious act
of manipulation that moved the author toward the reader and made texts as palatable
in the target language and culture as they were in the source language and culture The
ideals of equivalence and faithfulness were now being seriously questioned The
cultural turn in translation studies shifted away from purely linguistic analysis
redefining translation as intercultural communication and focusing on the
socio-cultural and ideological dimensions of translating For Lefevere (1992)
translation was essentially rewriting and manipulation He remarked
On every level of the translation process it can be shown that if linguistic considerations enter
into conflict with considerations of an ideological and or poetological nature the latter tend to
win out (p 9)
INTRODUCTION 4
Another cultural theorist Venuti (1995) who drew a distinction between
domestication and foreignization also insisted that translation must take into account
the value-driven nature of the socio-cultural framework within which it is carried out
Culture and cultural elements are no longer seen as impediments to successful
linguistic transfer Rather culture is an encompassing framework within which
effective translation operates The cultural turn widens the scope of translation by
revealing that the translator not only works with the language pair in question ie the
source text and the target text but also with the two cultures ie the source culture
and the target culture Translation is now considered a purposive activity The
outcome or product of translation is understood in a wider context and the factors
affecting the translatorrsquos decision making process are given special emphasis
12 The Emergence of Cultural Transfer in Translation Theory
The characterization of translation as cultural transfer is an outcome of the trend
mentioned in section 11 According to Vermeerrsquos (1996) skopos theory translation is
a cross-cultural transfer a form of human interaction determined by its purpose or
ldquoskoposrdquo Following Vermeer Snell-Hornby (1988) denounced linguistic transfer as
inadequate contending that translation should instead be seen as a cross-cultural event
Translation as cultural transfer has become a dominant view resulting from the
ldquocultural turnrdquo in translation theory and a ldquoshift of emphasisrdquo from ldquoformalist phaserdquo
to ldquobroader issues of context history and conventionrdquo (Bassnett 1998 p 123)1
1 Back in 1990 Bassnett and Venuti observed that major changes in translation studies had taken place
They remarked
INTRODUCTION 5
Hatim (2001) also labelled this ldquoinfluential trend in recent translation studiesrdquo as ldquothe
cultural modelrdquo an approach contrary to the linguistic model which dominated early
translation studies in the last century (p 44) Snell-Hornby (2006) described the
ldquocultural turn of the1980srdquo as the trend driven by the theoretical impetus from various
sources such as descriptive translation studies skopos theory and deconstructionism
(p 47)2
Snell-Hornby (1988) first employed the term ldquocross-cultural transferrdquo in
subscribing to Vermeerrsquos view that translation was not the trans-coding of words or
sentences between languages but a ldquocross-cultural transferrdquo (p 46) She argued that
in traditional linguistic oriented theory ldquothe text was then seen as a linear sequence of
units and translation was merely a trans-coding process involving the substitution of a
sequence of equivalent unitsrdquo and that the equivalence-centred studies carried out by
Jacobson Nida and Catford were crippled by the very concept of equivalence (pp
16-19) She contended that the pursuit of equivalence was an incurable illusion based
on the false presumption of absolute symmetry between languages and was thus a
distortion of the fundamental problems in translation Her denunciation of equivalence
was best represented by the following remarks
The object of study has been redefined what is studied is the text embedded in its network of
both source and target cultural signs and in the way Translation Studies has been able to utilize
the linguistic approach and to move out beyond it (p 12) 2 Toury (2007) noted the influence of cultural studies in translation He remarked
The last decade has been marked by the foregrounding of cultural concerns in all the sciences of
man including the ones interested in language and language behavior This development has
already brought along substantial changes in the way phenomena lsquoin the world of our
experiencersquo are approached which students of translation were among the first to applaud - and
adopt There were even colleagues who nicknamed the 1980s the era of rsquocultural turnrsquo in
Translation Studies (eg Bassnett and Venuti 1990) even though it is not always all that clear
what this term was meant to cover (p 1)
INTRODUCTION 6
In this study the view is also taken that equivalence is unsuitable as a basic concept in translation
theory the term equivalence (the authorrsquos italics) apart from being imprecise and ill-defined
(even after a heated debate of over twenty years) presents an illusion of symmetry between
languages which hardly exists beyond the level of vague approximations and which distorts the
basic problems of translation (1988 p 22)
In explaining the nature of translation she noted that ldquolanguage is not seen as an
isolated phenomenon suspended in a vacuum but as an integral part of culturerdquo (p
39)3 Apart from the definition given by Goodenough and Gohring Snell-Hornby
also subscribed to Vermeerrsquos concept of culture in translation She remarked
This new definition correlates with the concept of culture now prevalent in translation theory
particularly in the writings of Vermeer hellip and is the one adopted in this study hellip the concept of
culture as a totality of knowledge proficiency and perception is fundamental in our approach to
translation If language is an integral part of culture the translator needs not only proficiency in
two languages he must also be at home in two cultures In other words he must be bilingual and
bicultural (cf Vermeer 1986) (1988 pp 40 42)
According to Snell-Hornby Vermeer was among the first to argue that the linguistic
approach was far from adequate for understanding the nature of translation and that
3 Commenting on the definition provided by American ethnologist Ward H Goodenough and German
scholar Heinz Gohring Snell-Hornby(1988) remarked
There are three important points common to both definitions quoted above but which are
especially prominent in Gohringrsquos German adaptation firstly the concept of culture as a totality
of knowledge proficiency and perception secondly its immediate connection with behaviours
(or action) and events and thirdly its dependence on norms whether those social behaviours or
those accepted in language usage (p 40)
INTRODUCTION 7
translation was first and foremost a cross-cultural transfer In this regard Vermeer
remarked
Translation is not the trans-coding of words or sentences from one language to another but a
complex form of action whereby someone provides information on a text (source language
material) in a new situation and under changed functional cultural and linguistic conditions
preserving formal aspects as closely as possible (Snell-Hornby 1990 p 82)
Rather than giving emphasis to the equivalence of linguistic units such as words
or sentences Vermeer began to view translation as a complicated action in a broader
socio-cultural context In his skopos theory translation is a form of human interaction
determined by its ldquoskoposrdquo or purpose Following in the footsteps of Vermeer
Snell-Hornby took a cultural approach abandoning linguistic equivalence as the goal
of translation She held that the translatorrsquos cultural knowledge proficiency and
perception underpinned not only his ability to ldquoproduce the target text but also his
understanding of the source textrdquo (p 42) In other words understanding of the cultural
elements of both the SL and TL was a pre-requisite in translation However she did
not explain how translation could take place between cultures without taking
linguistic equivalence into consideration
The notion of cultural transfer has been given different and even conflicting
interpretations in the literature and the range of empirical facts judged to be relevant
to the study of cultural transfer varies from theory to theory In addition any study of
translation must deal with the language pair in question and translation is always a
verbal representation of the source text In the next chapter we will scrutinize the
notion of cultural transfer and examine the questions at issue
INTRODUCTION 8
13 Legal Translation Theory In Search of Goal and Strategy
In traditional translation theory legal texts were regarded as a species of LSP
text and their translation was accordingly treated as a kind of technical translation In
recent translation theory a change in perspective has occurred along with the
emergence of approaches centered on cultural and communicative factors described in
section 11 The translation of legal texts has increasingly been regarded as a
communicative act no longer a mere operation on the technical linguistic elements to
achieve verbal and grammatical parallelism as well as equivalence in legal meaning
Moreover the translator is no longer considered a passive mediator but rather an
intercultural operator whose choices are increasingly recipient-oriented and based not
only on strictly linguistic criteria but also on extra-linguistic considerationsmdashfirst and
foremost the function of the translated text in the target culture In this section we
will look at studies in legal translation with respect to its goal and strategy
Wilss (1982) observed that at the outset of translation studies it was generally
agreed that the goal of all translation was to achieve equivalence by producing the
closest possible equivalent text In normal practice the legal translator was expected
to produce a strictly literal translation to retain the elements of the original texts The
basic unit of translation was still the word Basic changes in syntax were permitted so
as to respect the grammatical rules of the target language
Approaching legal translation from the perspective of communication Sager
(1997) held that recent translation theory had taken into consideration cultural
differences between the source and target languages as well as the purpose of the
translated text He also noted that the concept of equivalence had been modified to
INTRODUCTION 9
text-type equivalence as opposed to textual equivalence Rejecting the static view of
linguistic equivalence and characterizing translation ldquoas one possible step in a
communication process between two culturesrdquo Sager proposed an approach to
translation based on communication theory with a view to ldquoredefining the relationship
between source and target textrdquo (pp 26 27) The translator was considered as an
information mediator who needed to identify the writerrsquos intention the readerrsquos
expectation the text-type in question and possible ways to reconstruct them In
relation to translation strategy he also pointed out that the traditional concept of
translation which aimed to preserve both content and intention applied only in the
case of translation of a letter or a technical instruction from one language to another
Sagerrsquos communicative approach represents a shift of focus from source text to target
text and frees the legal translator from the rigid grip of linguistic equivalence
However Sager did not explain how the legal translator could reconcile the writerrsquos
intention with the readerrsquos expectations and in what ways the goals of translation of
legal language as a special text-type differed from goals in translating other text-types
Functionalists who focus their attention on the concepts of skopos and
target-orientedness no longer take the source text as the only standard for assessing a
translation Instead translation is now assessed on the basis of its adequacy for the
communicative purpose within the target culture (Vermeer 1984 Nord 1991 1997)
As for the applicability of this approach to legal translation functionalists have
claimed that their theory is comprehensive and applicable to all text-types in all
situations (Vermeer 1982 p 99) But doubts have been raised as to whether the
functional approach could be validly applied to LSP texts and in particular to legal
texts (Trosborg 1997) The main objections are centred on the typical
recipient-orientedness of the functional approach which seems inappropriate for legal
INTRODUCTION 10
language which is governed by rigorous rules of interpretation In response to such
objections Šarčević (1997) argued that legal translation should no longer be regarded
as a process of linguistic trans-coding but an act of communication in the mechanism
of law (p 55) She criticized scholars who focus their attention primarily on language
and the linguistic elements of the text for ignoring the fact that legal translation was
also receiver-oriented and that legal communication could be effective only if
interaction was achieved between text producers and receivers (pp 55-56) She thus
redefined the goal of legal translation as the production of a text with the same
meaning and effect as the original text with special emphasis on effect The translator
should also preserve the unity of a single instrument by striving to produce a text that
would be interpreted and applied by the courts in the same manner as the other
parallel texts of that instrument particularly the original (p 72) In order to achieve
this goal a thorough understanding of the legal cultures in which the translation
ultimately functions is a must as translation problems emerge as a result of different
legal histories and cultures Legal translators could only overcome the problems posed
by different legal cultures with a clear knowledge of the fundamental differences
between legal systems For Šarčević understanding the legal cultures of ST and TT is
vital for legal translation Like functionalists she attaches a great deal of importance
to the communicative function of legal translation However she does not explain
how the legal translator could simultaneously achieve the same meaning and the same
effect as the source text
Taking the view that legal texts form a specific genre with their own unique
linguistic framework and generic knowledge text typology as recently developed has
positive implications for the goal and theoretical methodologies of legal translation
Trosborg (1997) held that distinguishing between political texts legal texts and other
INTRODUCTION 11
text-types was of great significance as they required different translation approaches
Defining genre analysis as ldquothe study of situated linguistic behavior in
institutionalized academic or professional settingsrdquo Bhatia (1997) adopted a
genre-based approach to translation He noted two crucial characteristics of genre
analysis One is that genre analysis is not ldquoan extension of linguistic formalismrdquo in the
sense that it examines the use of language to achieve the communicative purpose
rather than linguistic equivalence The second is that genre theory explores ldquoall
aspects of socio-cognitive knowledge situated in disciplinary cultures in order to
analyze construction interpretation and use of linguistic communication to achieve
non-linguistic goalsrdquo (p 205) Therefore the genre-based approach to legal translation
is by nature a pragmatic study of the use and effect of language within a particular
legal culture For Bhatia the goal of legal translation must include the ldquoaccessibility
of the target text for a specific audiencerdquo and he therefore advocated the method of
easification ldquoa process of making a text-genre more accessible to an intended
readership without sacrificing its generic integrityrdquo (p 209) He held that this
genre-based approach to the teaching and learning of translation had the advantage of
encouraging the learner He remarked
hellip this awareness of participation in the ownership of the genres of legal culture is what Swales
(1990) calls raising rhetorical consciousness in the learner (or translator) (p 212)
Accordingly cultural awareness is a pre-requisite for the legal translator While
Bhatiarsquos approach to legal translation is genre-based his emphasis on legal culture is
similar to Šarčevićrsquos view He also held that the goals of legal translation should
include the readability of the target text
INTRODUCTION 12
We can see from the discussion above that legal translation has been
approached from three different perspectives There has been a shift from producing
the closest possible equivalent text to producing a text with the same meaning and
effect as the other parallel text(s) a shift of focus in translation theory from fidelity to
the source text to the readability of the target text and a shift from the merits of
interlingual equivalence to the demands of cross-cultural communication Awareness
of the differences between the cultures of different legal systems is of paramount
importance in legal translation In the next chapter we will re-examine the goal of
legal translation and show in the light of a clarified notion of cultural transfer that
cultural transfer as domestication is not appropriate for the kind of legal translation
which aims to produce an authentic version of the law
14 Rationale for the Study
The rationale for the present study is twofold Firstly cultural transfer is
arguably the most discussed but least understood concept in recent translation
theory In the absence of a clear notion of what this concept means it is difficult to
arrive at a judicious understanding of the nature of translation Secondly legal
translation in particular legislative translation as carried out in Hong Kong can serve
as an exemplary case study for understanding the multi-faceted problems relating to
the concept of cultural transfer As will be shown cultural transfer in Snell-Hornbyrsquos
sense ie domestication at the cultural level is totally inappropriate for legal
translation The question we have to address is what does ldquocultural transferrdquo mean in
legal translation and how is it effected
INTRODUCTION 13
The translation of the English legislation enacted before 1987 into Chinese in
Hong Kong was clearly a mammoth legal project4 While this was completed before
the handover of the sovereignty of Hong Kong to the Peoplersquos Republic of China on 1
July 1997 a good part of the common law including case law has yet to be translated
or represented in one form or another in Chinese It is hoped that the theoretical
inquiry into cultural transfer in legal translation undertaken by the present thesis can
provide some insights into the future development of bilingual legislation in Hong
Kong
4 English had been the language of the law since Hong Kong became a British colony in 1842 and
remained so until Section 4 of the Official Language Ordinance as amended in 1987 stipulated that
ldquo[a]ll Ordinances shall be enacted and published in both official languagesrdquo The Interpretation and
General Clauses Ordinance as amended in 1987 defined ldquoofficial languagerdquo as ldquothe English language
and the Chinese languagerdquo
Chapter 2
Translation as Cultural Transfer
21 Clarification of the Notion of Cultural Transfer
211 Cultural Transfer vs Transcoding
Despite years of debate translation scholars are still wrestling over whether a
translation should be literal or free In traditional theory literal translation has been
characterized as a word-for-word transmission of a text from one language into
another The adequacy of translation has traditionally been judged on the basis of the
degree of lexical and grammatical correspondence between the source and target
languages Such correspondence is often defined in terms of equivalence Thus
fidelity to the original text is considered the most important principle of translation
and the main task of the translator is to find the best equivalence On the other hand
free translation has been characterized as a sense-for-sense transmission not
constrained by the lexicon or grammar thus giving the translator absolute freedom as
to how to render the source text in the target language Challenging the rigid
dichotomy of word and sense Snell-Hornby (1988) contended that it was rooted in
the ldquoillusion of equivalencerdquo (p 13) and as we have already noted advocated the
notion of cultural transfer as a complete break with the traditional theory She pointed
out that this new orientation had in fact already been put forward by several German
scholars in the 1980s She said
TRANSLATION AS CULTURAL TRANSFER
15
What is dominant in the three new basic approaches recently presented in Germany hellip is the
orientation towards cultural rather than linguistic transfer secondly they view translation not as
a process of transcoding but as an act of communication thirdly they are all oriented towards
the function of the target text (prospective translation) rather than prescriptions of the source text
(retrospective translation) fourthly they view the text as an integral part of the world and not as
an isolated specimen of language These basic similarities are so striking that it is not exaggerated
to talk of a new orientation in translation theory (pp 43-44)
Adopting Vermeerrsquos view that translation is a ldquocross-cultural eventrdquo
Snell-Hornby argued that translation was not simply as ldquoa matter of languagerdquo but a
ldquocross-cultural transferrdquo (p 46) As has been noted in section 11 Vermeer (1996) in
his endeavour to establish skopos theory held that translation was not the
trans-coding of words or sentences from one language to another but a complex form
of action Skopos theory is basically a functional theory and ldquoits concern is the
potential functionality of a target-text (translationtranslatum) under target-culture
(lsquorecipientsrsquo) conditionsrdquo (1996 p 31) Vermeer emphasized that the target culture
constrained the choices available to the translator urging her to pay special heed to
the convention of the target culture and the expectations of the target reader which in
turn pre-determine the function of the translation In refuting the concept of
equivalence he contended
It is not the source-text equivalence (or more loosely correspondence) requirement which
guides the translation procedure but the skopos eg to show target-text recipients how a
source-text iswas structuredrdquo (1996 p 51)
TRANSLATION AS CULTURAL TRANSFER
16
One of the main factors in the skopos of a communicative activity is ldquothe (intended)
receiver or addressee with their specific communicative needsrdquo (1996 p 46) He
claimed that skopos theory applied to all translations and the function of the
translation in the target text could differ from that of the source text The same text
could therefore be translated in different ways depending on its function and the
translatorrsquos main task was to produce a new text that satisfies the cultural expectations
of target receivers
As Vermeerrsquos and Snell-Hornbyrsquos proposed new orientation was intended as a
revolt against the prevailing linguistic approach we now need to look back at the
major tenets of this earlier turn
Catford is generally acknowledged to be the founder of the linguistic school in
translation theory In defining translation as ldquothe replacement of textual material in
one language (SL) by equivalent textual material in another language (TL)rdquo (1965 p
20) Catford presupposed the existence of linguistic equivalence between SL and TL
For him textual material was not ldquothe entirety of a SL textrdquo but mainly the ldquogrammar
and lexisrdquo (p 20) He further made a linguistic break-down of SL and TL into what he
called ldquoextentrdquo ldquolevelsrdquo and ldquoranksrdquo employing equivalence as a key concept
throughout (p 21) He said
The central problem of translation practice is that of finding TL translation equivalents A
central task of translation theory is that of defining the nature and conditions of translation
equivalence (p 21)
TRANSLATION AS CULTURAL TRANSFER
17
Thus in Catfordrsquos view the central problem and task of translation centre around the
concept of equivalence He further distinguished between ldquotextual equivalencersquordquo and
ldquoformal correspondencerdquo two basic translation equivalences in his theory (p 27)5
Equivalent units in the TL vary in size from the entire text to any portion of the text
having a wider scope than formal correspondence In his view textual equivalence is
represented by the occurrence of a TL textual equivalent for a specific SL item
allowing equivalence-probabilities to be established between the two (p 30)
Thus for Catford establishing equivalence-probabilities is an ideal goal of
translation as these allow translation to be carried out in a manner similar to
mathematics
On the other hand formal correspondence as Catford pointed out is best
exemplified by translation between two languages both of which operate with
ldquogrammatical units at (all) five ranksrdquo (for example English and French)6 While
formal correspondence is harder to achieve as it requires the nearest match between
TL and SL grammatical categories and can only be fulfilled through textual
equivalence Catford maintained that the former is still ldquoan essential basis for the
discussion of problems which are important to translation theory and necessary for its
applicationrdquo in translation practice (pp 32-33) Observing that there are always ldquosome
departures from the formal correspondencerdquo what he called ldquoshiftsrdquo he conceded that
5 The definitions of textual equivalence and formal correspondence are given as follows
A textual equivalence is any TL text or portion of text which is observed on a particular occasion
by methods described below to be the equivalent of a given SL text or portion of text A formal
correspondence on the other hand is any TL category (unit class structure element of structure
etc) which can be said to occupy as nearly as possible the lsquosamersquo place in the lsquoeconomyrsquo of the
TL as the given SL category occupies in the SL (Catford 1965 p27) 6 The five ranks are sentence clause group word morpheme (Catford 1964 p32)
TRANSLATION AS CULTURAL TRANSFER
18
formal correspondence can only be approximate in nature He further distinguished
between two major types of ldquoshiftsrdquo level shifts and category shifts In general terms
they are linguistic units in SL which have TL equivalents belonging to a different
linguistic level or category (1965 p 73) Thus Catford was well aware that
ldquotranslation equivalence does not entirely match formal correspondencerdquo That is why
he resorted to textual equivalence (p 82) He was also aware that even textual
equivalence is not always achievable because of two kinds of un-translatability
linguistic and cultural Linguistic un-translatability occurs when there is no lexical or
syntactical substitute in the TL for an SL item whereas cultural un-translatability is
due to the absence in the TL culture of a relevant situational feature for the SL text
We are now in a better position to assess Snell-Hornbyrsquos critique of Catfordrsquos
linguistic theory of translation Her main criticism7 centres around the foundation of
his linguistic approach which seems to her shaky
Catford bases his approach on isolated and even absurdly simplistic sentences of the type
propagated in theory of transformational grammar as well as on isolated words from such
examples he drives ldquotranslation rulesrdquo which fall far short of the complex problems presented by
real-life translation (1988 p 20)
Anyone who has read Catford carefully can see that this criticism is totally
unfounded According to Catford translation textual equivalents are discovered by
two methods namely by consulting the linguistic intuition of competent bilingual
7 Snell-Hornby also dismissed Catfordrsquos definition of textual equivalent as circular (1988 p20) She
is correct on this point as Catford did use the term ldquoequivalentrdquo to define ldquotextual equivalentrdquo (see
footnote 5 above)
TRANSLATION AS CULTURAL TRANSFER
19
informants or translators or through a formal procedure of commutation and
observation of concomitant variation the latter being ldquothe ultimate testrdquo (1965 pp
27-28) But Snell-Hornby completely and conveniently ignores the second method
directing her attack solely on the first
Anyone with experience in translation knows all too well the opinions of the most competent
translators can diverge considerably and the hellip [first method] ismdashfor a rigorously scientific
disciplinemdashhopelessly inadequate (1988 p20)
This criticism fails to do justice to Catford He made it very clear that consulting
the linguistic intuition of competent bilingual informants or translators works only for
simple cases but that for complicated cases the formal procedure may be used (p 28)
To illustrate this point let us adapt Catfordrsquos examples Suppose we have the
following sentence pair
1a 我的兒子六歲
1b My son is six
If we change ldquo兒子rdquo of 1a to ldquo女兒rdquo to obtain
1c My daughter is six
then the changed portion of 1b namely ldquodaughterrdquo can be taken to be the equivalent
of the changed portion of 1a namely ldquo女兒rdquo ie ldquodaughterrdquo = ldquo女兒rdquo The method
applies not only to lexical words but also to structural words Consider the following
sentence pair
2a 地上有黃金
2b There is gold on the ground
TRANSLATION AS CULTURAL TRANSFER
20
If we change ldquo上rdquo in 2a to ldquo下rdquo to obtain
2c There is gold under the ground
likewise the changed portion of 2b namely ldquounderrdquo can be taken as the equivalent of
the changed portion of 2a namely ldquo下rdquo ie ldquounderrdquo = ldquo下rdquo
Of course the procedure is not always so straightforward Finding a translation
equivalent may involve the very complicated procedure of comparing a great number
of sentence pairs However complicated it can nonetheless be carried out rigorously
and each of its finding subjected to very strict tests
What is most noteworthy about Catfordrsquos second method is that it is an empirical
and probabilistic one Translation equivalence is ldquoan empirical phenomenon
discovered by comparing SL and TL textsrdquo (p 27) Well aware of the fact that
equivalence between an SL item and a TL item is not always a one-to-one
correspondence Catford assigned a probability value to each equivalent pair ranging
from 0 (zero equivalent) to 1 (one-to-one) The following is Catfordrsquos own example
[I]n a French short story of about 12000 words the preposition dans occurs 134 times The
textual equivalent of this in an English translation is in in 98 occurrences into in 26 from in 2
and about and inside in one occurrence each there are six occurrences of dans where the
equivalent is either nil or not an English preposition hellip In terms of probabilities we can state the
translation equivalences as follows dans = in 73 dans = into 19 dans = from 015 dans =
aboutinside 0075 This means that if you select any occurrence of dans at random in this text
the probability that its translation equivalent on that occasion is in is 73 the probability that it is
into is 19 etc (1965 p 30)
TRANSLATION AS CULTURAL TRANSFER
21
Catford further distinguished between two types of probability value namely
unconditioned probabilities and conditioned probabilities the latter being values
affected by contextual and co-textual factors (pp 31-32) He went on to make the
following remark
Provided the sample is big enough translation-equivalence-probabilities may be generalized to
form lsquotranslation rulesrsquo applicable to other texts and perhaps to the lsquolanguage as a wholersquomdashor
more strictly to all texts within the same variety of the language (p 31)
Thus nothing is further from the truth than accusing Catford of deriving
translation rules from ldquoabsurdly simplistic sentencesrdquo as alleged by Snell-Hornby
Quite on the contrary for Catford they are derived from a big enough samplemdash a big
enough corpus in contemporary linguistic terminology More crucially his approach
is in all important respects the same as the corpus-based approach in translation
studies today which aims to extract translation rules from a huge parallel corpus of
translated texts Catford can thus properly be said to be the pioneer of the
corpus-based approach in translation studies
Three further points must be made about Catfordrsquos linguistic approach
particularly since it has been so unfairly and widely criticized even to the extent of
making it something of a dead horse in translation studies today
First Catfordrsquos linguistic approach is by no means built on the ldquoillusion of
equivalencerdquo For he expressly states that ldquothe SL and TL items rarely have lsquothe same
meaningrsquo in the linguistic senserdquo (p 49) ldquosince every language is formally sui generis
and formal correspondence is at best a rough approximationrdquo (p 36) Translation
TRANSLATION AS CULTURAL TRANSFER
22
equivalence is therefore not based on sameness in meaning but on functional
interchangeability in the same context (p 49) Put briefly a TL sentence T is a
translation equivalent of an SL sentence S if T and S have overlapping meanings
relevant to the context in question (pp 37-39) such that T ldquocan function in the same
situationrdquo as S (p 49)8 Accordingly the aim of translation is Catford argued to
select TL equivalents ldquonot with the same meaning as the SL items but with the
greatest possible overlap of situational rangerdquo (p 49) Catfordrsquos ldquotranslation
equivalentrdquo looks very much the same as Nidarsquos ldquoclosest natural equivalentrdquo but it
differs from the latter in one crucial aspect in that it is invariably context-dependent
whereas the latter can be context-free
Another equally important point about Catfordrsquos linguistic approach can best
been seen from the following passages
hellip[A] manifestation of the lsquosame meaningrsquo or lsquomeaning-transferencersquo fallacy is seen in the view
that translation is a lsquotranscodingrsquo process a well-known example being Weaverrsquos remark
lsquoWhen I look at an article in Russian I say ldquoThis is really written in English but it has been
coded in some strange symbols I will now proceed to decoderdquo
This implies either that there is a one-to-one relationship between English and Russian
grammaticallexical items and their contextual meanings or that there is some pre-existent
lsquomessagersquo with an independent meaning of its own which can be presented or expounded now in
one lsquocodersquo (Russian) now in another lsquocodersquo (English) But this is to ignore the fact that each
8 While Catford explained this point in great detail in Chapter 5 Meaning and Total Translation we
cannot elaborate on it here
TRANSLATION AS CULTURAL TRANSFER
23
lsquocodersquo (ie each language carries with it its own particular meaning since meaning hellip is lsquoa
property of languagersquohellip
hellip
Our objection to lsquotranscodingrsquo or lsquotransference of meaningrsquo is not a mere terminological quibble
There are two reasons why translation theory cannot operate with the lsquotransference of meaningrsquo
idea In the first place it is a misrepresentation of the process and consequently renders the
discussion of the conditions of translation equivalence difficult in the second place it conceals
the fact that a useful distinction can be made between translation and another process which we
call transference In transference hellip there is indeed transference of meaning but this is not
translation in the usual sense (pp 41-42)
Meaning does not get transferred in translation and translation is not a process of
transcoding This comes out loud and clear in Catford Translation for him is not a
process of code-switching according to rigid mechanical rules based on one-to-one
formal correspondence between SL and TL items as Nord has alleged (1997 p 7)
nor is it a process of transcoding of pre-existent naked meaning So the Catford that
Snell-Hornby and many others have attacked turns out to be not merely a straw man
but ironically also a comrade in arms
A third important point to note about Catfordrsquos linguistic approach is that it is by
no means incompatible with the so-called cultural approach As has been shown
Catfordrsquos approach is an empirical and probabilistic one Its aim is twofold first to
find TL equivalents (in his sense) by way of comparing actual samples of SL and TL
texts with the resultant TL equivalents serving as translation rules and second to set
out the conditions for justifying TL equivalence Unlike Snell-Hornby and many other
theorists Catford never told us how to translate So in this sense his linguistic
TRANSLATION AS CULTURAL TRANSFER
24
approach can be said to be theory-free He only told us how to find translation
equivalents which is exactly what corpus linguists do nowadays A corpus might
contain TL texts produced in the light of different or even conflicting theories but
Catfordrsquos approach would still be applicable Accordingly the cultural approach
advocated by Snell-Hornby and others of a similar persuasion is not really a rival
approach and hence there is not much sense in talking about an emancipation from
the linguistic theory of translation that Catford represents
212 Vermeerrsquos View of Translation as Cross-cultural Transfer
The tenets of the cultural school as represented by Vermeer and Snell-Hornby
can be reduced to three statements
1 Translation is not simply a matter of language and it does not take place
merely between languages
2 Language is an integral part of culture and hence translation from one
language to another is a cross-cultural transfer and
3 The source text in itself does not dictate how it is to be translated what
dictates the translation is the specific purpose in question
This counters the lay view of translation described well enough by Snell-Hornby
as follows
hellip translation is simply a matter of words or individual linguistic signs which are replaced by
equivalent words signs or units in the target language The translator so it is assumed therefore
TRANSLATION AS CULTURAL TRANSFER
25
needs either simply a good command of the vocabulary in both languages involved or a good
dictionary (1992 p 2)
Such a naive static and mechanical view is as Snell-Hornby endeavoured to show
rooted in the false belief in the existence of equivalence between languages ie a
one-to-one correspondence between SL and TL items Yet her critique of such a
notion was directed not so much against lay people as against Catford and other
descriptivists such as Toury and Koller But it is really hard to see how such a view
of translation could be attributed to Catford who expressly dismissed it as fallacious
We do not want to labour this point but let us just say this Vermeer and
Snell-Hornbyrsquos vehement opposition to the linguistic approach is totally misguided
In place of the false dichotomy of word vs sense they have ushered in the false
dichotomy of transcoding vs cultural transfer As has already been shown by Catford
there is no such a thing as transcoding What then is cultural transfer
Vermeer answered the question with a metaphor
What does it mean to translate hellip Suppose you take a tree from a tropical climate to a temperate
zone Will it not need special care Will it not be considered something out of the ordinary by
whoever sees it It will never be the same as before neither in growth or in the eyes of its
observers hellip With a translation it is not much different One will have to decide before
translating whether it is to be ldquoadaptedrdquo (to a certain extent) ie ldquoassimilatedrdquo to target culture
conditions or whether it is meant to display and perhaps even stress its ldquoforeignrdquo aspect One
will have to make a choice In both cases the text will be ldquodifferentrdquo from what it was in its
ldquonormalrdquo source-culture conditions and its ldquoeffectrdquo will be different Assimilation does not
necessarily mean making a text look like an ordinary target-culture text(eme) ie making it look
TRANSLATION AS CULTURAL TRANSFER
26
ldquoas though it were not translationrdquo Assimilation need not take place on the ldquosurfacerdquo level
alone paradoxically enough assimilation on other levels can lead to an ldquoalienationrdquo
(Verfremdung) on the surface level (1995 p 39)
Translation is likened to the transplant of a tree onto foreign soil for a specific
purpose The translated text (the transplanted tree) has been adapted or assimilated to
a culture (foreign soil) different from the original (home soil) One important point to
note here is assimilation can take place on different levels the target text is not
necessarily a completely domesticated textmdashit may indeed turn out to be alien to the
target culture This is a point which has been overlooked or suppressed by Vermeerrsquos
followers who have identified Vermeerrsquos functional approach with domestication
Since the notion of skopos is an all-embracing one it is in principle able to
accommodate all kinds of approach to translation
hellip skopos theory hellip allows for transferring (or demands the transfer of) as many features of the
source-text surface-structure as possible into target culture surface-structure features in such a
way that target-culture addressees can appreciate the literariness of the translation in a way
comparablesimilarcorresponding to source-culture addressees who are able to appreciate their
source-text (1995 p 50)
[Note in the original The term ldquotransferrdquo is not strictly applicable Nothing is physically
transferred]
The passage is worth noting in two important respects The original footnote clearly
shows that Vermeer was not comfortable with the word ldquotransferrdquo It would be
interesting to see what word he would or could have used in its place ldquoTranscodingrdquo
would have definitely been ruled out as by it he meant translation which takes place
TRANSLATION AS CULTURAL TRANSFER
27
merely between languages guided by the principle of equivalence This is not a trivial
observation For ldquotranslation as cultural transferrdquo was used by him to mark a new
orientation in translation studies So it is legitimate to press the question of what he
meant by ldquocultural transferrdquo The tree transplanting metaphor cited above suggests
that in translation a text is transferred from one culture to another with the two
cultures in question remaining unchanged This is in line with the definition Vermeer
gave in his seminal paper entitled ldquoTranslation as a cultural transferrdquo (1986) However
the passage just cited implies that transcoding in the sense that purely linguistic
features of the source text are ldquocarried over tordquo9 or reproduced in the target text can
be one possible purpose of translation This seems to defeat the whole purpose of
skopos theory which asserts that ldquotranslation is not the transcoding of words or
sentences from one language to anotherrdquo (1986 p 33) A closer look at his remarks
on the ldquoequivalence postulaterdquo of Touryrsquos theory will reveal something even more
devastating for skopos theory however
hellip there is a methodological difference between Touryrsquos approach and that of skopos theory
According to the latter a lsquotransferrsquo (by any strategy) of a great number of source-text phenomena
to a target-text still depends on the skopos (purpose) of translating It is not the source-text
equivalence (or more loosely correspondence) requirement which guides the translation
procedure but the skopos eg to show target-text recipients how a source-text iswas structured
(or for some other purpose hellip) The skopos is hierarchically higher than the equivalence postulate
Such a procedure is then not retrospective (as is the case when taking the source-text structure as
the highest element in the hierarchy) but prospective in the sense that the skopos demands a full
consideration of source-text structures for a given purpose In such a case the difference between
9 ldquoCarry overrdquo was also used by Vermeer as a synonym of ldquotransferrdquo (1990 p 50)
TRANSLATION AS CULTURAL TRANSFER
28
Touryrsquos approach and that of skopos theory is one of focus in practice the result may look much
the same (Ibid p 51 Italics mine)
The passage clearly shows that Vermeer was in fact not really against the equivalence
postulate or transcoding as he expressly stated that the difference between Touryrsquos
approach and his is ldquoone of focusrdquo ie Touryrsquos focus is on the source-text
(retrospective) whereas his is on the target-text (prospective) and that both
approaches may lead to much the same target text We can thus see that the kind of
transcoding he deplored was in the final analysis transcoding without a purpose
whereas he saw transcoding with a purpose as both possible and legitimate His
opposition to the linguistic approach turns out to have been overstated
The fundamental principle of skopos theory according to Vermeer is that it
ldquostrictly regards translating from the point of view of a text functioning in a
target-culture for target-culture addressesrdquo (1990 p 50) Translation as cultural
transfer is therefore translating a text from one culture to another according to a
specific function What is transferred (understood in a figurative sense) is the text not
the culture of the text But here Vermeer simply failed to see there are situations
where ldquocultural transferrdquo means ldquothe transfer of one culture to anotherrdquo and
legislative translation is a typical case of cultural transfer in this sense
213 Snell-Hornbyrsquos View of Translation as Cultural Transfer
In line with the central arguments of the new theoretical orientation which I
have just discussed Snell-Hornby held that translation was a cultural transfer rather
TRANSLATION AS CULTURAL TRANSFER
29
than a linguistic transfer and that translation as a cultural transfer was oriented
towards the function of the target culture and also facilitated cross-cultural
communication To illustrate this point Snell-Hornby (1998 pp 94-5) cited her own
experience in India When walking along the streets of Southern India about twenty
years earlier she was repeatedly approached by local people who asked her a question
in their native language which literally means ldquoWhere are you goingrdquo in English She
was obviously puzzled by this strange question Later she found out that it was a local
form of greeting when people met in the street A mere transcoding would yield
ldquoWhere are you goingrdquo which in her view was problematic because it was likely to
cause a communication break-down She pointed out how this showed the limitations
of mere transcoding by neglecting the twin facts that language was dependent on
cultural and social norms and that translation was essentially a cross-cultural event
Instead an appropriate translation would be ldquoHow are yourdquo as it complied with the
conventions of greeting in English and thus effected a cultural transfer
The starting point of Snell-Hornbys framework is reasonable in the sense that
the pursuit of absolute equivalence or symmetry between languages is futile and it is
doubtless the case that cultural elements must been taken into account when doing
translation If her thoughts on the incident lead her merely to the above conclusion
her argument about the cultural account in translation would be sound However in
analyzing the appropriate translation for the Indian way of greeting she distinguished
two translation methods one is the mere transcoding and the other is what she called
ldquocultural transferrdquo In her view linguistic transcoding and cultural transfer are
apparently two distinct methods of translation Linguistic transcoding is reduced to
linguistic transference without any cultural account By contrast cultural transfer
indicates the rendering of source text smoothly and idiomatically such that the English
TRANSLATION AS CULTURAL TRANSFER
30
speaking reader would perceive the translation as conventional and familiar Thus the
important units of translation are seen as products of culture that emerges from their
distinctive social settings instead of strings of words or sentences or even whole texts
According to Snell-Hornby translation should be oriented towards the function of the
target text rather than submit to the prescription of the source text She remarked
The text cannot be considered as a static specimen of language (an idea still dominant in
practical translation classes) but essentially as the verbalized expression of an authorrsquos intention
as understood by the translator as reader who then recreates this whole for another readership in
another culture This dynamic process explains why hellip the perfect translation does not exist
(1988 pp 1-2)
We shall see from the above that in proposing the translator ldquorecreates this whole
for another readership in another culturerdquo Snell-Hornby holds that translation as
ldquocultural transferrdquo should conform to the cultural norms of the target language and
familiarize the source culture to the extent that target readers could identify it with
their own culture As has been shown the term ldquocultural transferrdquo is used by
Snell-Hornby as the antithesis to ldquolinguistic transcodingrdquo It is clear what she means
by ldquolinguistic transcodingrdquo a naiumlve simplistic static and mechanical manner of
translation which consists in matching SL and TL words solely by relying on a
bilingual dictionary a view of translation rooted in the false belief in the existence of
equivalence (a one-to-one correspondence) between languages However it is by no
means so clear what she means by ldquocultural transferrdquo particularly what she means by
ldquotransferrdquo ie what gets transferred in translation
TRANSLATION AS CULTURAL TRANSFER
31
She regularly stresses two points in her work First language is an integral part
of culture and also of the world Understanding a text requires an understanding of its
socio-cultural context and this applies to both the source text and the target text
Second translation is an act of communication oriented towards the function of the
target text not a mere linguistic operation prescribed by the source text These two
points seem clear enough but again what gets transferred in translation is not at all
clear
Her discussion of the translation approach of Hans G Houmlnig and Paul Kussmaul
(in Snell-Hornby 1988 pp 45-46 1990 pp 83-84) which she endorsed gives us
some idea of what she means
Houmlnig and Kussmaulrsquos starting point is the conception of the text as what they call lsquothe
verbalized part of a socio-culture (1982 58) the text is imbedded in a given situation which is
itself conditioned by its sociocultural background The translation is then dependent on its
function as a text lsquoimplantedrsquo in the target culture The basic criterion for assessing the quality of
a translation is called the lsquonecessary grade of differentiationrsquo which represents lsquothe point of
intersection between target text function and socio-cultural determinantsrsquo (1982 53)
To illustrate this they quote two sentences each naming a famous British public
school
In Parliament he fought for equality but he sent his son to Winchester
When his father died his mother couldnrsquot afford to send him to Eton any more
They then quote two extreme types of German translation
TRANSLATION AS CULTURAL TRANSFER
32
hellipseinen eigenen Sohn schickte er auf die Schule in Winchester
hellipkonnte es sich seine Mutter nicht mehr leisten ihn nach Eton zu schicken jene teure englische
Privatschule aus deren Absolventen auch heute noch ein Grossteil des politischen und
wirtschaftlichen Fuhrungsnachwuchses hervotgecht10
The first translation is under-differentiated the mere name ldquoWinchesterrdquo does not
carry the same meaning for a German reader as for an English one The second is
over-differentiated however correct the information on British public schools may be
it is superfluous to the text concerned In the first of the two sentences it is the
double-faced hypocrisy of the father (hence the exclusive elitist character of public
schools) that is stressed while the second focuses on an impoverished widowed
mother (and the expensive school fees) As the necessary grade of differentiation for
the texts in question the authors therefore suggest
Im Parlament kampfte er fur die Chancengleichheit aber seinen eigenen Sohn schickte er auf
eine der englischen Elisteschulten [elite schools]
Als sein Vater starb konnte seine Mutter es sich nicht mehr leisten ihn auf eine der teuren
Privatschulen [private schools] zu schicken (1990 pp 83-84)
Here Snell-Hornby agrees with Houmlnig and Kussmaulrsquos approach which rejects
the orthodox demand to preserve as much of the original as possible so as to achieve
equivalence in translation Preserving ldquoWinchesterrdquo in the German translation is an
under-translation because for German readers the name ldquoWinchesterrdquo would just be
10 Snell-Hornbyrsquos translation ldquohellipthat expensive English public school which even today produces
many of the future leaders in politics and managementrdquo
TRANSLATION AS CULTURAL TRANSFER
33
the name of a city perhaps even unable to call up the notion of there being a school
there let alone Winchester College the oldest public school in England On the other
hand filling in too much background information is an over-translation distracting
readers from the impoverished condition of the widowed mother The suggested
translations in which ldquoWinchesterrdquo is translated as ldquoone of the elite schools and
ldquoEtonrdquo as ldquoone of the expensive private schoolsrdquo give as much information as
necessary for the functions of the two English sentences to allow German readers to
understand the socio-cultural meaning of ldquoWinchesterrdquo and ldquoEtonrdquo So we are not
translating ldquowordsrdquo but ldquowords-in-textrdquo (1988 p 45) What gets transferred in
translation should be the socio-cultural meaning of words not their surface meaning
of words
In a paper entitled ldquoTranslation as a Cultural Shock Diagnosis and Therapyrdquo
(1992) Snell-Hornby describes how erroneous mechanical matching of equivalents
in translation can give rise to interlingual miscommunication and cultural shock An
amusing example reads
Nice German business man 36 wants to become a black woman Every letter will be answered
(p 2)
The shock obviously unintended is due to matching the German ldquobekommenrdquo (=
getfind) to the English ldquobecomerdquo Examples like this abound11
11 The English translation of a sign in China reads ldquoCarefully fall into the riverrdquo The Chinese
original reads ldquo小心堕河rdquo
TRANSLATION AS CULTURAL TRANSFER
34
On the syntactic level following the conventions of the source text would give
rise to stiltedness in the target text Very often equivalent syntactic forms are not
acceptable in the target language (1990 pp 6-7) The following are English
translations of a hotel advertisement in German The one on the left is the original
translation which stays close to German syntax and the one on the right is a rewriting
according to English advertising conventions
To enjoy Viennarsquos unique atmosphere Come and enjoy the unique
atmosphere
In one of the cityrsquos guesthouses of Viennamdashand stay in one of
the cityrsquos finest Pensionen
University City hall Parliament A few minutesrsquo walk from the
University
Burgtheatre and Vortivkirche City Hall Burgtheatre and
Vortivkirche
In the immediate vicinity
hellip hellip
The upshot of her discussion is this ldquoTranslation is not a merely a matter of
language but primarily one of knowledge of which language forms only a partrdquo (p
7) And translation should free itself from the inexorable grip of words and avoid
inflicting cultural shocks by conforming to the linguistic and cultural norms of the
target language Let us return for a moment to the questions arising from the two
approaches to translating the Indian greeting examined by Snell-Hornby namely
linguistic transcoding and cultural transfer For her the way to effect cultural transfer
is to match the original Indian greetings to an idiomatic expression in English In this
TRANSLATION AS CULTURAL TRANSFER
35
way the translation actually functions the same way as the original does but may fail
to preserve the original patterns and to reflect the real meaning expressed in the
original text In other words the cultural transfer that Snell-Hornby advocates
involves conformity with the conventions of the target culture In addition
Snell-Hornby only recognizes the importance of the source culture in the
understanding of source text Instead she places great emphasis on the target culture
since she holds that the translator should be oriented towards the target culture
producing translation that is representative of the culture of target language instead of
the culture of the source language Evidently translation as cultural transfer in this
sense involves inadequate transference of the source culture Cultural transfer is in the
final analysis ldquocommunication across culturesrdquo (p 7) very similar to what Newmark
called ldquocommunicative translationrdquo
214 Domestication vs Foreignization
In maintaining translation as cultural transfer Snell-Hornby is in fact adopting a
target-culture-oriented position For her the source culture is important only for
understanding the source text but the target culture in fact plays a far more vital role
since it shapes the target text which is what actually facilitates cross-cultural
communication Thus viewed translation as cultural transfer is in effect
cross-linguistic communication at the cultural level a mapping of the source culture
onto the target culture in other words a functional assimilation of the source culture
into the target culture
TRANSLATION AS CULTURAL TRANSFER
36
As is well known such an approach is contrary to the one advocated by
Schleiermacher For him there are only two options for the ldquotruerdquo translator Either to
move the reader towards the writer or to move the author towards the writer
(Robinson 1997 p229) He opted for the first remarking
To achieve this the translator must adopt an lsquoalienatingrsquo (as opposed to lsquonaturalizingrsquo) method
of translation orienting himself or herself by the language and content of the ST He or she must
valorize the foreign and transfer that into the TL (quoted in Munday 2001 p 28)
Adopting Schliermacherrsquos categorization of these two translation strategies
namely ldquoalienatingrdquo and ldquonaturalizingrdquo Venuti (1992) argues that the former strategy
could exert a positive influence on the target culture while the latter might inhibit
innovation on the part of the target language and culture Having examined past
examples of the decisive role of domestication in forming certain foreign cultural
identities in the target culture he had come to realize that translators had tended to
achieve the goal of communication by naturalizing foreign texts in order to conform
to domestic conventions However the domestication of a foreign culture could result
in misrepresentations of that culture Worse still it could paralyze the ability and
willingness of the target reader to accepting new elements from a foreign culture
Venuti came to the conclusion that although translation is bound to be domestication
to some degree foreignization ldquopromises a greater openness to cultural differencesrdquo
(p 23) Like Schliermacher he subscribed to foreignization which he believed was
the proper way to effect the transfer of the source culture as it allowed the target
language to be influenced and amplified by the source language and open the way to
novelty and innovation in the target language Thus translation as ldquocultural transferrdquo
leaves a choice open to each individual translator Either she chooses foreignization
TRANSLATION AS CULTURAL TRANSFER
37
preserving the alien elements in the target text or she chooses domestication ironing
these out to make the target text readily comprehensible to the reader The choice in
practice depends on the particular skopos that the translator intends
It is crucially important to understand the opposed notions of ldquodomesticationrdquo
and ldquoforeignizationrdquo very clearly if we wish to understand precisely what is involved
in effecting cultural transfer Whether a translation exhibits domestication or
foreignization can only be determined where the context reveals cultural asymmetry
and is examined as such12 In other words it is only when directly confronted with the
problem of translating a culture-specific item that the translator has to make a choice
between the two strategies A common misunderstanding is that the translator is
always engaged in make such a choice even when translating items that are not
culture-specific Consider the translation of the two English terms ldquoInternetrdquo and
ldquoSarsrdquo into Chinese For each term we can have at least two translations yinte wang
(英特網) and hulian wang (互聯網) for ldquoInternetrdquo shashi (沙士) and fei dianxing
xing feiyan (非典型肺炎) for ldquoSarsrdquo It is interesting to note that the linguistic
formation of the translated terms yinte wang (英特網) and shashi (沙士) may seem
ldquoforeignrdquo to the Chinese reader and hence are considered as ldquoforeignizedrdquo terms
However both ldquoInternetrdquo and ldquoSarsrdquo are terms which represent non-culture-specific
concepts ldquoyinte wang (英特網) and shashi (沙士) differ from hulian wang (互聯網)
and fei dianxing xing feiyan (非典型肺炎) only in that they are transliterations rather
12 In an attempt to define translation strategy Kwiecinski (2001) provided a rather comprehensive
definitionldquohellip translation strategy hellip may be definedhellipas a textually manifest norm-governed
intersubjectively verifiable global choice of the degree in which to subscribe to source-culture or
target-culture concepts norms and conventionrdquo (p 120) Despite the complicated modification of the
word ldquochoicerdquo one thing we could see clearly is that translation strategy always involves a choice in
relation to culture-specific elements
TRANSLATION AS CULTURAL TRANSFER
38
than semantic translations a difference solely in translation technique The question
of whether this is foreignization simply does not arise here Likewise hulian wang
(互聯網) and fei dianxing xing feiyan (非典型肺炎) though readily comprehensible
in their linguistic form are not cases of domestication because no foreign culture is
involved here Put differently whether a translation is a case of domestication or
foreignization cannot be determined by the naturalness or foreignness of its linguistic
form alone
So what do we actually do as translators when we come across culture-specific
items If we choose to domesticate we just need to find an item in the target language
as a linguistic substitute leaving the target language as it is For example translating
the English idiom ldquothere is no smoke without firerdquo into wufeng buqi lang (無風不起
浪) (no waves without wind) actually replaces the English idiom with a similar one in
Chinese both mean that there must be a reason for the result No linguistic and
conceptual adjustment on the part of the target language is required Any peculiarity
in this way of expressing causality in English is no longer discernible in the
translation ie the cultural meaning of the source language has been domesticated or
naturalized
In contrast to foreignize means to import the source culture into the target
culture This can be achieved in two ways One is to foreignize at both the linguistic
and conceptual levels ie calling on the target language to make both linguistic and
conceptual adjustments Take the example of the English translation of the Chinese
term li (禮) one of the key concepts in Confucianism When it is translated as li (禮)
using the technique of transliteration (direct borrowing) it evidently introduces to the
target reader a new linguistic form Adjustment also needs to be made on the
TRANSLATION AS CULTURAL TRANSFER
39
conceptual level so that the English reader can understand the cultural meaning of the
coined English term li in the light of Confucianism The other way is to foreignize
only at the conceptual level ie without involving any linguistic adjustment In the
same example when li (禮) is translated as ldquomoralityrdquo ldquoproprietyrdquo or ldquoritualrdquo the
translator uses an existing English word as its equivalent However when the
translator makes it clear to the English reader that ldquomoralityrdquo ldquoproprietyrdquo or ldquoritualrdquo
should not be understood in their usual senses in English but should be re-defined and
understood with reference to Confucianism an intention to foreignize is revealed We
can see that in either case conceptual adjustment is a must while linguistic adjustment
is not really essential However there are as will be shown cases when where a
particular linguistic structure in the source text may embody the culture of the source
language In such cases the translator has to preserve the linguistic features of the
source text and linguistic and conceptual adjustments of the target language are
required In a nutshell cultural transfer as foreignization requires the translator to
import the culture-specific elements into the target culture regardless of whether the
foreignness is reflected in the linguistic form of their translations The discussion
above only serves as a simplified model for discussing the theoretical framework of
effecting cultural transfer we will introduce It will be elaborated further in the next
section
It is now clear that ldquocultural transferrdquo when employed to characterize translation
as a socio-cultural activity rather than a mere act of linguistic recoding has in fact
been understood in two diametrically opposite senses On the one hand it has been
taken to mean the mapping of the cultural elements of the source text onto their
functional equivalents in the culture of the target text an approach which aims to
facilitate cross-cultural communication without making any linguistic or conceptual
TRANSLATION AS CULTURAL TRANSFER
40
adjustment on the part of the target text by way of domestication On the other hand
the term ldquocultural transferrdquo has also been taken to mean the importation of the source
culture into the target culture an approach which requires linguistic and conceptual
adjustments on the part of the target language
22 Legal Translation as Cultural Transfer
221 Legal Transplant and Legal Translation
The tree transplanting metaphor that Vermeer uses to illuminate translation
studies has a close counterpart in studies of comparative law namely legal transplant
which according to Alan Watson (1974 p 21) is ldquothe moving of a rule or a system
of law from one country to another or from one people to anotherrdquo And interestingly
enough just as there is a perennial debate in translation studies over the translatability
of law there is one in comparative law over the transplantability or transferability of
law
Legrand a strong opponent of the whole idea of legal transplant contends that
the word ldquotransplantrdquo itself already implies its impossibility
To ldquotransplantrdquo according to the Oxford English Dictionary is ldquoto remove and repositionrdquo ldquoto
convey or remove elsewhererdquo ldquoto transport to another country or place of residencerdquo
ldquoTransplantrdquo then implies displacement For the lawyerrsquos purposes the transfer is one that
occurs across jurisdictions there is something in a given jurisdiction that is not native to it and
that has been brought there from elsewhere What then is being displaced (1997 p 111)
TRANSLATION AS CULTURAL TRANSFER
41
For Legrand law is not simply ldquobare propositional statementsrdquo which can travel
across jurisdictions and can be understood without regard to ldquohistorical factors and
habits of thoughtsrdquo (Ibid p 113) Instead propositional statements work together with
their invested meaning to jointly constitute ldquorulesrdquo (Ibid pp 116-17) But because a
legal rule is culture-specific it is bound to be understood differently when integrated
into another legal system (Ibid p 117) Thus ldquoas the understanding of a rule changes
the meaning of the rule changes And as the meaning of the rule changes the rule
itself changesrdquo (Ibid p 117) Legrand remarks
In the words of Eva Hoffman lsquo[i]n order to transport a single word without distortion one would
have to transport the entire language around itrsquo13 Indeed lsquo[i]n order to translate a language or
a text without changing its meaning one would have to transport its audience as wellrsquo14 hellip
So the transplant does not in effect happen a key feature of the rulemdashits meaningmdashstays
behind so that the rule that was lsquotherersquo in effect is not itself displaced over lsquoherersquo hellip Meaning
simply does not lend itself to transplantation There always remains an irreducible element of
autochthony constraining the epistemological receptivity to the incorporation of a rule from
another jurisdiction15 therefore limiting the possibility of effective legal transplantation itself
The borrowed form of words thus rapidly finds itself indigenized on account of the host culturersquos
inherent integrative capacity (Ibid p 118)
hellip
[So] [a]t best what can be displaced from one jurisdiction to another is literally a meaningless
form of words To claim more is to claim too much In any meaning-ful sense of the term lsquolegal
transplantrsquo therefore cannot happen No rule in the borrowing jurisdiction can have any 13 Original note 16 Eva Hoffman Lost in Translation (Minerva 1991) at 175 14 Original note 17 Ibid at 272 15 Original note23 Eg FSC Northrop lsquoThe Comparative Philosophy of Lawrsquo 45 Cornell Law Quarterly (1960) 617 at 657 lsquoin introducing foreign legal and political norms into any society those norms will become effective and take root only if they incorporate also a part at least of the norms and philosophy of the native societyrsquo
TRANSLATION AS CULTURAL TRANSFER
42
significance as regards the rule in the jurisdiction from which it is borrowed This is because as it
crosses boundaries the original rule necessarily undergoes a change that affects it qua rule The
disjunction between the bare propositional statement and its meaning thus prevents the
displacement of the rule itself (Ibid p 120)
Legrandrsquos argument is simply this Anything culture-specific cannot be transplanted
from one culture to another without change Law as underpinned by its rules is
culture-specific Therefore law cannot be transplanted from culture jurisdiction to
another without change The impossibility of legal transplant also entails the
untranslatability of law A text of law when translated from one culture jurisdiction
to another will no longer preserve the meaning of the original text ie it is not the
text of the same law just as in Vermeerrsquos botanical metaphor the text was not be the
same as before16
In response to Legrandrsquos criticism Watson (2006) makes two points which are
relevant to the present study and worth discussing at some length First taken to the
extreme no word means exactly the same even for people who speak the same
language in the same country ldquoBreadrdquo for a poor village housewife does not have the
same meaning as for the wealthy Parisian businessmen (p 2) The same is true for law
within the same country Watson gives the following example
16 In an attempt to avoid the difficulties inherent in the transplant metaphor Langer (2004 pp 32-35)
used translation as a metaphor to explain the circulation of legal ideas rules practice and institutions
First it retains the comparative dimension as it distinguishes between the source text and the target text
of the law Secondly it can explain the loss of meaning Thirdly it can explain the transformation
which the source legal system undergoes as a result of its exchange with the target legal system
Finally it can explain ldquothe transformation which the linguistic and social practices of the target legal
system undergo under the influence of the translated text While these are valid points they cannot
resolve the transplantability problem because the translatability of law is the question at issue here
TRANSLATION AS CULTURAL TRANSFER
43
The possession of cocaine is hellip illegal That means one thing to the petty dealer who sees it as
his sole hope of escaping from his ghetto quite another to the recreational user quite another to
non criminals who live in the same street as the gangs quite another to law enforcement officers
It is banal to notice that the same legal rule operates differently in two countries it operates to
different effect even within one (p 2)
The point he makes here is a valid one Since we cannot say that a legal rule always
remains the ldquosamerdquo within a single jurisdiction we are even less entitled to speak of
its remaining the it is ldquosamerdquo transplanted from one jurisdiction to another
Secondly legal transplant does not preclude different interpretations of the
transplanted law Watson remarks
hellip where a written statutory law is the same within two countries its judicial interpretation may
well differ because of tradition and ways of legal thinking hellip But it is no rare thing for
academics to notice and pass on to practitioners the nature of these differences The very fact
that the statutory rule is the same may well cause legal thinking on it in different countries to
converge
I think I have no need to stress that I have long held that a transplanted rule is not the same
thing as it was in its previous home17 Nor need I stress my long-held view that it is rulesmdashnot
just statutory rulesmdashinstitutions legal concepts and structures that are borrowed not the lsquospiritrsquo
of a legal system Rules institutions concepts and structures might almost be termed tangibles
can easily be reduced to writing and are accessible (pp 2-3)
17Original note 4 See most recently Alan Watson La Out of Context Athens GA 2000 p 1
TRANSLATION AS CULTURAL TRANSFER
44
Watson then goes on to cite from legal history examples of legal transplants on a
grand scale (pp 4-8) which we need not consider for our present purpose The point
that needs stressing is that even though the transplanted law is likely to be given a
different interpretation recognition of the difference may still lead to convergence
Law is of course culture-specific Yet a good part of it is embodied in language It is
through translation that the law of a country is made accessible to other cultures And
as history has shown translation has been a major channel of cultural transfer
However there are many who while conceding that the aspects of law
mentioned by Watson are transplantable through translation the cultural significance
of law is not For instance Hiller contended
During the colonial period language from a British statute was imported into many of its
colonies18 whereby it was a crime for any person ldquobeing armed and having his face
blackened hellip (to) appear in any forest hellip or in any high roadrdquo under a wide variety of stated
circumstances The offence was ostensibly designed to deal with poachers and similar
wrongdoers Arming andor blackening onersquos face was enough to constitute a capital crime in
Britain19 The obvious cultural significance would have been lost in translation The language
would have been rather absurd in an African or Asian setting (1978 pp 157-58)
18 Original note 16 For example the Nigerian Criminal Code Cap 43 sec 417 (e) makes it a felony
for a person to have ldquohis face blackened with intent to commit a felonyrdquo Similarly see Kenya
Penal Code Cap 63 Sec 308 (3) (a) and Uganda Penal Code Cap 106 Sec 285 (1) (e) 19 Original note 17 George I c 22 (emphasis added) The statute enacted in 1713 became known as
ldquoThe Waltham Black Actrdquo simply as ldquoThe Black Actrdquo For a fascinating discussion of the Act see E
P Thompson Whigs and Hunters The Origin of the Black Act New York Pantheon Books 1975)
The Act is reproduced in full in Appendix I of the book
TRANSLATION AS CULTURAL TRANSFER
45
But what Hiller failed to see here is it is not the language that is absurd it is the
law (the ldquoBlack Actrdquo as it is called) When translated into an African or Asian
language the legal meaning of that law is not lostmdashthe person who understands its
translated version knows exactly what it prohibits but finds it absurd as he lives in a
country where hunting is a main source of food Indeed he does not understand why
there is such a law in his country If he is educated enough he may find out the reason
from a book on the history of English law Yet he may still not understand why such a
law is imposed on his people There may be a whole lot of whyrsquos he asks But one
thing he understands is If he does not want to get into trouble with the law he must
not blacken his face and appear in a forest or on a highway with a weapon If the
translation makes him understand that it has done what it is supposed to do
The Black Act was of course culture-specific enacted to address a particular
problem in England But this historical fact does not in any way render it
untranslatable into an African or Asian language Suppose its Chinese translation
reads ldquo任何人不得塗黑臉孔 攜帶武器出現在樹林中或公路上rdquo The translation
says what the Act says The ldquocultural significancerdquo which Hiller did not see in the
translationmdashlost in the translationmdashis not part of what the Act says This is a point
Hiller seems to concede But he goes on to say
hellip [T]ranslationmdashno matter how accuratemdashis not an adequate solution to the problem of
transferability of law The reason lies in the facts that both law and languages are carriers of
culture and that each culture has its own integrity and internal consistency20 These are the
20 Original note 20 ldquoWe may figure the task of the judge if we please the task of a translator the
reading of signs and symbols given from without None the less we will not set men to such a task
unless they have absorbed the spirit and have filled themselves with a love of the language they must
TRANSLATION AS CULTURAL TRANSFER
46
reasons not only why an imported law or institution will not work in the importing country the
way it did in the exporting country21 but more importantly why the importation of foreign
elements into a culture will lsquoskewrsquo the receiving culture in profound ways hellip (pp 158-59)
The successful transplant of a foreign law is of course not solely dependent on an
accurate translation Whether a foreign law can work in the importing culture or not is
a socio-cultural problem not a translation problem Translation can only do what it
can do It can only render a foreign law comprehensible to people of the importing
culture So we can well agree with Hiller that translation ldquois not an adequate solution
to the problem of transferability of lawrdquo Here ldquotransferabilityrdquo means ldquosuccessful
transplantrdquo not ldquosuccessful communicationrdquo While successful transplant requires
successful communication as a pre-condition translation alone cannot transfer the
socio-cultural conditions of a foreign law to the importing culture and makes it work
there The kind of transfer translation effects is linguistic and conceptual not
substantive
222 Translating the Common Law into Chinese as Cultural Transfer
When Hong Kong became a British colony in 1842 the British brought along a
whole lot of ldquoculture-specificrdquo things tangible and intangible of which the common readrdquo B N Cardoro The Notes of the Judicial Process (New Haven Yale University Press 1923) p
174 21 Bob Seldman stresses for example why we cannot assume that every properly socialized person will
know the law if that law is a product of a foreign system On ignorantia juris generally see R B
Seldman supra note 4 at 689 He says by way of illustration ldquoHowever well the system for the
promulgation of laws may work in England it may not and does not work adequately in Africardquo Id at
697
TRANSLATION AS CULTURAL TRANSFER
47
law was one Surprisingly enough it did not seem to occur to Legrand or Watson that
legal transplant as in the case of Hong Kong could pre-empt many of the questions
that triggered their long debate First the transplant was not from one jurisdiction to
anothermdashit was carried out within the same common law jurisdiction as Hong Kong
became a common law jurisdiction the moment the British flag was hoisted (or legally
even earlier) Second for nearly a century and a half the law was in the same
language as its home state namely English Third the law was administered and
practised by professionals from its home state or from other common law
jurisdictions or from the local community who spoke and were trained in the same
language of the law In a word except for some adaptations in areas such as marriage
and succession the common law was transplanted to Hong Kong en bloc Thus the
legal culture however estranged it was from the majority of citizens who were
Chinese-speaking was unmistakably a common law culture
The translation of the common law into Chinese was therefore by no means
carried out in an alien culture from the outset Rather it was carried out in the
transplanted culture of the common law There was no sharp distinction between
source and target cultures in the first place
Under the bilingual legislation system of Hong Kong the English text and its
Chinese counterpart must fulfill two conditions First they must have equal legal
status Second they must convey the same legal meaning The first condition must be
and was in fact met by legislative measures22 However how the second condition
can be met is still not clear to many translation scholars and practising law translators
22 The Interpretation and General Clauses Ordinance (Cap 1) was amended in 1987 to accord both
language texts of the law equal legal status
TRANSLATION AS CULTURAL TRANSFER
48
Some like Snell-Hornby have contended that equivalence in meaning is a chimera
an illusion or an unattainable goal Thinking along the line of Vermeerrsquos skopos
theory we have a definitive purpose here whatever we do and however we do it the
Chinese text must convey the same legal meaning as the English text in other words
the two texts must be equivalent in legal meaning If equivalence were indeed an
illusion then no multilingual legal system would be viable
Let us now re-examine the goal of legal translation now that we have a clearer
notion of cultural transfer in mind Legal translation is certainly among the varieties
of translations where the translator is subject to stringent semantic constraints at all
levels due to the peculiar features of the language of English law on the one hand and
the culturally mediated nature of legal discourse on the other To maintain the
authenticity of the law the cultural concepts which are specific to the original legal
system could not be replaced by functionally equivalent concepts of the Chinese
language Thus cultural transfer by way of domestication is not appropriate in legal
translation The authoritative status of legislation dictates that the goal of legislative
translation is to reproduce a legal text in the target language which conveys the same
legal meaning as the source text It requires the legal translator to adjust the target
language in such a way that the legal meaning of the source text could be expressed
by the target language Cultural transfer as foreignization is best exemplified in the
translation of a particular legal system from one language to another in the present
case the translation of the common law into Chinese
While Hong Kong ceased to be a British colony on July 1 1997 it has been
allowed to retain English law under Chinarsquos policy of ldquoOne Country Two Systemsrdquo
The laws previously in force namely the common law rules of equity ordinances
TRANSLATION AS CULTURAL TRANSFER
49
subordinate legislation and customary law together with the use of English as an
official language have been preserved under the Basic Law of the Hong Kong
Administrative Region
As has been noted the authoritative status of legal texts requires that the goal of
legal translation is to reproduce a legal text in the target language which has the same
legal meaning as the source text Regarding this Roebuck and Sin (1993) defined the
goal of translating the common law into Chinese 23
In attempting to create in Chinese an authentic version of a Common Law rule or principle it
is essential that the Chinese express exactly the same message as the original rule in English
insofar as its meaning is prescriptive (p 193)
23 Sin (1992) set out some basic conditions for the semantic equivalence in translating the Common
Law into Chinese in terms of bilingual legislation
All discussion about semantic equivalence will become futile if we do not focus on the aspect or
aspects of meaning relevant to a particular purpose So we can now define semantic equivalence
between two legal sentences in the following way
(1) Semantic equivalence = sameness in meaning with reference to the relevant
aspect(s)
(2) A sentence S in Language L is = S and Srsquo have the same meaning with reference to the
semantically equivalent to a relevant aspect(s) and S and Srsquo have the same
sentence Srsquo in Language L reference scheme
(3) The legal meaning of a sentence S = The prescriptive value of S
(4) A sentence C of the Chinese version = C and E have the same prescriptive value ie they
of the Common Law has the same prescribe the same behavior under the same
legal meaning as a sentence E of the behavior under the same circumstances and
English version of the Common Law conditions
(5) A sentence C in the Chinese version of the law is semantically equivalent to a sentence E in
the English version if and only if whatever interpretation given to E by the court is given to C (pp
96-99)
TRANSLATION AS CULTURAL TRANSFER
50
Sin (1998) pointedly voices the dilemma that the legal translator faced in seeking to
achieve such a goal
The tension between the translatorrsquos paramount duty to represent the law with
uncompromising accuracy on the one hand and the strong desire of the public to have the law
communicated to them in clear language on the other was deeply felt hellip It is a perennial
tension between the polarity of the two extreme approaches to translation characterized by
Schleiermacher (181342) ldquoeither the translator leaves the writer alone as much as possible
and moves the reader toward the writer or he leaves the reader alone as much as possible and
moves the writer toward the readerrdquo (p203)
Thus the inherent difficulties of the translation of the common law into Chinese
present a highly relevant case for our discussion of cultural transfer as foreignization
As a matter of fact cultural transfer as foreignization is not a novel idea in the
history of translation in China The translation of Buddhist scriptures is a much cited
paradigm of foreignization Although Buddhism became a popular religion in China
it originated in India and was unknown to the Chinese before the middle of first
century The translation of Buddhist scriptures into Chinese began in the Han dynasty
Many Buddhist concepts were new to the Chinese and there were no Chinese terms
expressing Buddhist concepts Xuan Zhuang (玄奘) the most influential figure in the
translation of Buddhist scriptures developed important translation techniques like
amplification omission borrowing and transliteration all effective methods to
introduce Buddhist foreign concepts into Chinese 24 Linguistic adjustments for 24 Xuanzhuangrsquos theory of the Five Untranslatables (五種不翻) or five instances where one should
transliterate (1) Secrets tuoluoni 陀羅尼 a Sanskrit curse (2) Polysemy baojia 薄伽 for a Sanskrit
word that has 6 meanings comfortable flourishing dignity name lucky esteemed (3) None in China
TRANSLATION AS CULTURAL TRANSFER
51
conceptual assimilation were made and with the gradual integration of the translated
texts into the Chinese language Buddhist concepts have now become an inseparable
part of Chinese culture This would not have happened if the domestication approach
had been adopted for the obvious reason that domestication would have turned
foreign Buddhist concepts into indigenous Chinese ones leaving Chinese culture
intact without incorporating Buddhism Examples of foreignization abound in the
history of translation not only in China but also in other parts of the world Whenever
a culture is transferred from one language to another there is always a need for
conceptual adjustment which invariably results in the foreignization of the importing
language The translation of the common law into Chinese is simply one such case
223 Metalinguistic Devices and Cultural Transfer in Legal Translation
As has been noted the primary aim of legal translation in the context of bilingual
and multilingual legislation is to prepare different language versions of one and the
same law This means that they must convey the same legal meaning Thus semantic
equivalence is presupposed by all bilingual and multilingual legislation systems
The term ldquoequivalencerdquo has been used in the literature to define successful
translation or to describe the ideal result of translation 25 and the concept of
yanfu tree 閻浮樹 a kind of tree that does not grow in China (4) Deference to the past Anouputi (阿
耨菩提) for a special kind of knowledge This transliteration is an established usage (5) To inspire
respect and righteousness banruo 般 若 (Prajna) instead of ldquowisdomrdquo ( 智 慧 )
(httpenwikipediaorgwikiChinese_Translation_Theory accessed on May 5th 2007)
25 Various definitions of translation given by translation theorists based on the notion of
ldquoequivalencerdquo are as below
TRANSLATION AS CULTURAL TRANSFER
52
equivalence has been variously defined in terms of functional equivalence conceptual
equivalence semantic equivalence formal equivalence dynamic equivalence lexical
equivalence syntactic equivalence textual equivalence and pragmatic equivalence
Since legal translation is primarily concerned with the translation of legal concepts it
is ldquoconceptual equivalencerdquo or ldquosemantic equivalencerdquo (sameness in legal meaning)
that we have to achieve Conceptual equivalence requires that different language
versions of the law must convey the same legal concept(s) in question Doubts have
been raised as to whether conceptual or semantic equivalence can be achieved If it
could be shown that semantic equivalence cannot be achieved then all bilingual and
multilingual legislation systems would be groundless Thus it is of paramount
importance in legal translation that semantic equivalence can be shown to be possible
Language can be viewed as a system of symbols codes or signs As is well
known Saussurersquos dualism of the signifier (sound image or the word) and the
signified (concept) was developed by Peirce by way of a triadic relationship of the
sign and subsequently by Ogden and Richards by way of the semantic triangle26
According to the semantic triangle words are the means of representing concepts in a
Translation may be defined as follows the replacement of textual material in one language (SL)
by equivalent material in another language (TL) (Catford 1965 p20)
Translating consists in reproducing in the receptor language the closest natural equivalent of the
source-language message (Nida and Taber 1969 p12)
[Translation] leads from a source-language text to a target-language text which is as close an
equivalent as possible and presupposes an understanding of the content and style of the original
(Wilss 1982 p62) 26 The Semantic Triangle is a model showing the relationship between the words the concepts and the
referents that words represent The semantic triangle by adding ldquoreferentrdquo to Saussurersquos dualism of
word and concept contains three elements (a) symbol (signifier)mdashword being perceived (b) reference
(signified)mdashthe concept of what being perceived (c) referent (object)mdashthought or thing being
perceived
TRANSLATION AS CULTURAL TRANSFER
53
language no matter whether such a concept is directly coupled with a referent in
reality or not In other words any word has a referent in reality however indirectly
and all concepts can be described by their manifestations in reality If a word refers to
a certain object directly perceivable in reality then we have a typical case of the
semantic triangle of word concept and referent If a word denotes an abstract concept
which has no direct referent in the physical world the referent in the semantic triangle
may not be directly perceivable in reality but still can be explained by means of
observable objects
Similarly the referents of legal concepts can be directly or indirectly described
by their manifestations in reality This is especially true due to the nature of the law
as Sin (1992) points out
Law is a set of rules which prescribe and regulate human behaviour Legal systems differ only
in the content but not in the nature of such rules hellip One important property of human behavior
is that it is publicly observable Accordingly all legal systems can be understood in the light
of human behavior observable in identifiable circumstances and conditions hellip Human
behaviour as well as the circumstances and conditions in which it is observed can be
described with sufficient precision in any language (p 95)
In legal translation the translated version should prescribe the same behaviour as
does the original version ldquonot only by virtue of its legal authority but also by virtue of
its legal meaningrdquo (Sin 1992 p 95) The translated version can acquire the same
legal meaning as the original version only when the legal meaning of the translated
version is construed in the light of the semantic reference scheme of the original
TRANSLATION AS CULTURAL TRANSFER
54
version Sin (1992) goes on to analyze the goal of legal translation in terms of
semantic equivalence
although no two texts in different languages are identical in all aspects of meaning semantic
equivalence hellip can still exist between them if they are compared with reference to the same
aspect of meaning hellip (and) should be defined in terms of sameness in legal meaning which is
evidently the most relevant aspect of meaning they should have in common (p 96)
One may still ask In what way can semantic equivalence be achieved in
translation when the languages in question do not contain concepts that are exactly the
same or when the meanings or concepts of the source language which we generally
refer to as cultural concepts are different from or even absent in the target language
The answer to this question can be found in Feyerabendrsquos (1987) insightful
observation on Evans-Pritchardrsquos translation of the Azande language When
translating the Azande word ldquombismordquo the translator decided to translate it as ldquosoulrdquo
in English but this is not the end of it The translator added that ldquosoulrdquo in English
implies life and consciousness while ldquombismordquo in Azande covers a collection of
public or ldquoobjectiverdquo events The significance of the translatorrsquos note is fourfold First
it draws attention to the fact that the use of the word ldquosoulrdquo in itself constitutes a
problem Second it makes the word ldquosoulrdquo more suitable for expressing what Azande
people have in mind Third it redefines an English notion to accommodate elements of
a new concept Fourth it effects conceptual change ie cultural transfer at the
metalinguistic level (pp 267-68) Feyerabend sums up all these points in a well
formulated general principle of translation ldquoSuccessful translations always change the
medium in which they occurrdquo (p 266) The importance of this principle can never be
overstated for it shows that any successful transfer of culture must change the
TRANSLATION AS CULTURAL TRANSFER
55
importing language and that such transfers must be effected at the metalinguistic
level
The concept of metalanguage is not new in translation studies 27 Before
Feyerabend Roman Jakobson had pointed out that the metalinguistic function was
one of the major functions of language He noted
A faculty of speaking a given language implies a faculty of talking about this language Such a
lsquometa-linguisticrsquo operation permits revision and redefinition of the vocabulary used cognitive
experience and its classification is conveyable in any existing language Whenever there is
deficiency terminology may be qualified and amplified by loanwords or loan-translations
neologisms or semantic shifts and finally by circumlocutions (Quoted in Chesterman 1989 p
56)
As can be seen even if the concept a certain word designates exists in one
language but not in another the referent (direct or indirect) the word and concept
stand for can always be replaced by a word in another language by way of linguistic
adjustment28 in the form of a loan word a descriptive phrase or a newly coined word
In the case of translation the various metalinguistic devices adopted by the translator
27 Gombert (1992 p 1) discussed the definition of the term metalanguage
In a more general sense the word metalanguage is used to refer to the language where natural or
formalized (as in logic) which is itself used to speak of a language More precisely as
Benveniste (1974) emphasizes this word refers to a language whose sole function is to describe
a language 28 In this study we use the concept of ldquoformrdquo only in the sense of ldquolinguistic formrdquo that is as the form
of a language sign in opposition to its meaning As meaning is the property of a language which is
manifested through language and embodied in language For any existing language sign there are two
sides of it the form and the meaning of it
TRANSLATION AS CULTURAL TRANSFER
56
are often explicitly stated in hisher explanatory notes And it is at the metalinguistic
level that conceptual semantic equivalence is achieved A word in the target
language is defined as the equivalent for its counterpart in the source language29 That
is to say two different signs are made to denote one and the same concept
Thus understood foreignization is simply a metalinguistic operation whereby
cultural transfer is effected In this study conceptual semantic equivalence is not
understood as the one-to-one correspondence between languages which is absent as
languages stand but as a semantic relationship at the metalinguistic level Put simply
conceptual semantic equivalence is not found but created It results from a most
common-or-garden metalinguistic operationmdashmaking two things stand for one and
the same concept It should now be clear how different language texts produced by
translation can convey the same legal meaningmdashthey are simply made to do so
29 In trying to solve the problem of translation equivalence Neubert postulates that from the point of
view of a theory of texts translation equivalence must be considered a semiotic category comprising a
semantic syntactic and pragmatic component following Pierces categories These components are
arranged in a hierarchical relationship where semantic equivalence takes priority over syntactic
equivalence and pragmatic equivalence conditioning and modifying both the other elements
Chapter 3
The Concept of Legal Culture in Legal Translation
31 Previous Studies of Legal Culture
311 Law and Culture
Since cultural transfer as foreignization is best exemplified in legal translation it
will be helpful here to explore the concept of legal culture with practical reference to
the translation of the common law into Chinese The study is not confined to the
complete comprehension of a legal discourse which contains unstated legal
conventions (cultures) embedded deep in the linguistic form It concerns itself more
with how unstated legal elements can be transferred in legal translation If legal
culture is taken to mean culture in relation to law then gaining insight into the
concept of legal culture will enable us to understand the relation between culture and
law
The concept of culture is plagued with definitional problems A number of
anthropologists have offered useful accounts of the concept of culture Raymond
Williams Culture and Society (1961) is often credited with helping to instigate what
is now known as cultural studies In an attempt to identify the concepts and
definitions of culture the eminent anthropologists Alfred Kroeber and Clyde
Kluckhohn (1963) approached culture as a traditional crystallization with traditional
values at the centre of the culture Next translation theorist Peter Newmark (1988)
gave a rather comprehensive definition of culture ldquoas the way of life and its
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 58
manifestations that are peculiar to a community that uses a particular language as its
means of expressionrdquo (p 94)30 Legal scholar D J Black (1976) defined culture as
ldquothe symbolic aspect of social life including expressions of what is true good and
beautifulrdquo (p 61) It encompassed such things as ldquoideas about the nature of realityrdquo
ldquoconception of what ought to bersquo and ldquoaesthetic life of all sortsrdquo (p 61) For Black
culture included all kinds of ideas concepts and beliefs as manifested in language
behaviour and lifestyle A more recent definition from Bates and Plog (1990) states
that culture is ldquothe system of shared beliefs values customs behaviours and artifacts
that the members of society use to cope with their world and with one another and
that are transmitted from generation to generation through learningrdquo (p 7)
Law is just one part of culture that actively contributes in the composition of
social relations Sarat and Kearns (1999) pointed out that ldquowith the growing attention
to legal consciousness and legal ideology in socio-legal studies legal scholars have
come regularly to attend to the cultural lives of law and the ways law lives in the
domains of culturerdquo (p 5) Black (1976) defined law as ldquogovernmental social
controlrdquo Social control was in turn defined as ldquoresponse to deviant behaviourrdquo of
every kind including ldquolaw etiquette custom ethics bureaucracy and the treatment of
mental illnessrdquo (p 9) The concept of law occupies a central place in Blackrsquos theory
In his view the grown tree of cultural tradition imposes core legal meanings that can
be traced down to historical roots Conventionally the study of law with relation to
culture is the study of a complex whole which includes knowledge belief art morals
30 Newmark further classified culture into five categories Ecological culture such as plants animals
winds landscape etc material culture such as food clothes transport etc social culture such as work
and leisure culture of organizations customs activities procedures concepts and culture of gestures
and habits (p 83)
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 59
legal custom and any other capabilities and habits acquired by man as a member of
society
Previous studies of legal culture have thus exhibited multiple perspectives and
approaches Research interests in legal culture arise mainly from inter-disciplinary
studies especially comparative law and social science although the range of subjects
judged relevant to the concept of legal culture varies from study to study Because
sociologists comparativists and other theorists have very different ideas about what
constitutes ldquolegal culturerdquo many different views and practices are subsumed under the
same concept It is a concept that is frequently employed as a convenient cover term
for a large number of phenomena the general status of law in a society specific
structures of law opinions with regard to law by the general public or legal
professionals particular practices or behaviours of legal institutions or legal
professionals Legal culture has often been analyzed in its relation to particular
countries and legal systems There is an extensive literature on the legal culture of
specific countries In addition there are numerous works (especially works by
scholars of comparative law) discussing and analyzing the distinctive characteristics
and cultures of the two main legal systems the civil law and the common law31 The
concept of legal culture seems to be an all encompassing referential and explanatory
instrument for all relevant theoretical studies As is the case with the concept of
culture a common understanding of legal culture seems impossible to achieve In
31 Scholars of comparative law may be in a better position to analyze different legal cultures between
civil law and the common law if they acknowledge the fundamental and profound distinctions between
these two major legal traditions There is an inclination to treat them as homogenized in spite of the
fact that they operate in different jurisdictions The characteristics of the common law and civil law
have often been discussed with special reference to the development of legal tradition again a process
of crystallization
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 60
addition it is hard to engage in any analysis without asking ldquolegal culture in what
sense of the term or in relation to what kind of research subjectrdquo Therefore instead
of falling into the trap of defining legal culture as some kind of unitary force we
intend to describe and analyze the substantive contents that constitute the culture of
law with regard to legal translation studies We will begin with a review of how the
concept of legal culture has been conceived in previous studies
Since the notion of culture is hard to define due to its multifarious interpretations
in the literature there is no standard definition of culture However many scholars
accept the postulates provided by Bates and Plog (1990) as a working version Culture
is thus defined here sociologically as the typical ways of living built up by a people
including the beliefs and attitudes which support them Culture under such a
treatment finds its expression on two levels (1) shared beliefs and values conceived
by particular members of society and (2) the customary behaviours they practice
Studies relating to legal culture cover many aspects and it is not necessary for our
present purpose to give a comprehensive account of all those extended explorations
Rather we need is to isolate the variables that legal culture can refer to and then to
identify among these variables which sense of legal culture legal translation has to
deal with Some of the major variables for this concept of legal culture are
- Shared attitudes values and opinions (Friedman 1975 p 76)
- Legal ideology (Cotterell 1997 p 22)
- Shared norms and modes of thinking (Ginsburg 2003 p 1337 )
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 61
- Legal studies legal education and legal theory addressing legal conceptions
policies and reasoning and education (Atias 1986 pp 1118-9 )
- Legal reasoning that cultivated a series of principles of the case law (Atiyah
(1987 p 323)
- Legal principles best represent the spirit of rule of law (Kuan 1997 pp
187-205)
- Attitudes and beliefs lie in legal tradition (Pound1937 Merryman 1985)
- ldquoLaw in bookrdquo ldquolaw in actionrdquo ldquoelite legal consciousnessrdquo and ldquolegal
behavioursrdquo (Blankenburg amp Bruinsma 1994 pp 39 42)
- ldquoMentalitiesrdquo ldquomode of thinkingrdquo ldquothe method of reasoningrdquo and ldquolegal
trainingrdquo (Curran 1998 p 70)
As this list suggests the concept of legal culture in general discussions refers to
such varied elements that the variables mentioned need to be categorized if they are to
assist our further analysis Just as with culture in the broad sense the concepts of legal
culture discussed by scholars can be categorized in two ways Legal culture may refer
to peoplersquos conceptions of law alone or to both peoplersquos conceptions and their specific
practices of law32
32 To select a term that could best cover the numerous parameters in relation to the totality of peoplersquos
thought referred to in extensive studies by scholars from different disciplines we considered of
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 62
312 Legal Culture as Conceptions of Law
Viewing legal culture as conceptions widely held by people within a society
country or legal system theorists tend to concentrate on the thought-related
expression of legal culture In an attempt to bring out the idea that particular legal
systems operating in a social context have cultural and ideological presuppositions
and implications Friedman (1977) distinguished between ldquointernal legal culturerdquo and
ldquolay legal culturerdquo after giving his general definition of legal culture ie ldquoattitudes
values and opinions held in society with regard to law the legal system and its
various partsrdquo He observed that such ldquoattitudes values and opinionsrdquo could be
divided into two sets that of the ldquogeneral publicrdquo and ldquothat of lawyers judges and
other professionalsrdquo (p 76) For Friedman (1997) the concept of legal culture was a
useful way to categorize a range of phenomena in the field of law (p 33) This
position was first criticized by Cotterrell (1997) who held that it is impossible to
develop a concept of legal culture with sufficient analytical precision and that the
concept works more as an ideal than as a set of variables He basically rejected the
concept of legal culture as a way of identifying the exact relationship existing among
social phenomena such as characteristic institutions and patterns of thought and belief adopting the term ldquoideologyrdquo as proposed by Cotterrell (1997 pp 21-22) However the term
ldquoideologyrdquo has been notoriously tainted with political implications and is therefore misleading We thus
finally decided to use the more neutral and general term ldquoconceptionrdquo which serves our purpose of
generalizing the many variables pertaining to totality of thought (as distinct from totality of practice or
behaviour) that legal culture can refer to The definitions of ldquoconceptionrdquo in the OED online dictionary
are as follows (a) The action or faculty of conceiving in the mind or of forming an idea or notion of
anything apprehension imagination (b) The forming of a concept or general notion the faculty of
forming such pl Thoughts meditations courses of thought (c) That which is conceived in the mind
an idea notion (d) An opinion notion view (e) Something originated in the mind a design plan an
original idea (as of a work of art etc) a mental product of the inventive faculty (OED Online
Dictionary httpdictionaryoedcom accessed on August 2007)
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 63
He viewed the concept of legal culture as merely a convenient concept to ldquorefer
provisionally to a general environment of social practices traditions understandings
and values in which law existsrdquo (pp 21-22) Cotterrell thus preferred to use a more
specific notionmdashlegal ideology For him this represented legal doctrines ldquobeliefs
attitudes and valuesrdquo that ldquocan be translated into regulatory practicesrdquo (p 22)
Friedman (1997) contended that while vague and difficult to define there are many
fundamental concepts like ldquostructurerdquo or ldquosystemrdquo which constitute the building
blocks of social science (p 33) The concept of legal culture which he regarded as
falling into this class is useful for categorizing a range of phenomena in the field of
law (p 33) In reaction to Cotterellrsquos proposal to substitute the notion of legal culture
for that of legal ideology Friedman observed that legal ideology fell into his
classification of internal legal culture an aspect of culture that finds particular
resonance with scholars and legal professionals many of them have attached great
importance to ldquolegal ideologyrdquo especially legal doctrines (p 38) Friedman then
pushed the centre of his study of legal culture to what he called ldquolayrdquo legal culture (p
39)
Following Friedmanrsquos dichotomy between external and internal legal culture
Ginsburg (2003) noted that legal culture as characterized by legal scholars could be
defined in two ways On the one hand legal culture could be viewed in terms of its
intimate association and active interaction with a social and national culture
(Friedmanrsquos external legal culture) On the other hand legal culture could be regarded
as the internal legal culture featuring the ldquoshared normsrdquo and mode of thinking of
legal professionals that resulted from their common training (p 1337) Farrar and
Dugdale (1990 p 246) preferred to confine the concept of legal culture to internal
legal culture since they shared Watsonrsquos view that ldquolaw is more an expression of the
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 64
culture of the lawmaking elite rather than that of society at large and that the variety
of interests and attitudes possessed by such elites may thwart attempts to generalizerdquo
Although Friedmanrsquos dichotomy of legal culture makes it easier to further explore the
nature of legal culture it is undeniable that an essential substance of any legal system
is the culture of the legal professionals
Atias (1986) observed from the perspective of American law that legal culture
had been a well received and commonly used term among American legal researchers
The notion of American legal culture itself however still lacked conceptual precision
and deserved ldquobetter treatmentrdquo In view of this he proposed that ldquothe notion of
traditional scholarly orderrdquo as a springboard for the study of the notion of American
legal culture (p 1122) Atias believed that legal culture was based on the rich history
of legal studies and legal education while legal studies encompassed various legal
theory addressing legal conceptions policies and reasoning and education (pp
1118-9) Cultural consistency and enrichment came from the progressive
sedimentation of continuous efforts jointly made by the legal profession especially
lawyers jurists and judges to uphold those legal principles that finally ldquosurvive the
most conclusive criticisms and preserve their appealrdquo (p 1134) Atias concluded that
ldquothe study of the legal culture is thus the study of its progressive and never finished
formationrdquo (p 1135) In similar vein Atiyah (1987) held that the legal culture of the
common law included legal reasoning that cultivated a series of principles of the case
law and consequently ldquoEnglish statute has traditionally been drafted in such detail that
it can be said to be a catalogue of rulesrdquo (p 323) As we shall see both legal theory
and legal reasoning are definitely a reflection of views and beliefs about law thus
putting law in a cultural context
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 65
In Mineshimarsquos (2002) view the notion of the rule of law was the foundation of
any given legal system or legal culture This notion was determined by the traditions
and attitudes such as the views on the role and functions of the state the law and the
legal system In other words legal culture consisted of the traditional attitudes
towards the role and functions of the state the law and the legal systems (p 74) Kuan
(1997) also considered the idea of rule of law as an integral part of legal culture She
held that the legal culture of the common law lay in the concept of the rule of law
which found its expression in various legal principles (pp 187-205) For her the
seven most important common law principles embodied in the concept of rule of law
were ldquono law no crime equality before law law binds the ruler judicial
independence inborn rights obligations over rights and presumption of innocencerdquo
(p 195)33
If legal culture is regarded as peoplersquos conceptions of law it is appropriate to
probe its historical roots and philosophical foundation to search out how and where
legal tradition comes into play thus affirming that legal tradition is the basis of legal
culture Pound (1939) highlighted the concept of legal tradition when comparing the
characteristics of the common law and civil law For him the legal culture of the
common law contained those distinct traits derived from its legal tradition Another
33 Kuan also incorporated Betty Tsursquos argument that ldquothe concept of the rule of law is represented by
three items nullum crimen sine lege exercise of arbitrary power by the police and equal opportunity
before the courtsrdquo (p 190) Kuan gave a more detailed description of the rule of law ldquothe rule of law
is deconstructed into four theoretical aspects legal freedom legal equality rights-based autonomy of
law and due process Legal freedom meaning freedom from arbitrary government is defined by the
principle of lsquono law no crimersquo Legal equality consists of two principles the general principle of
lsquoequality before lawrsquo and the specific principle of lsquolaw binds the rulerrsquo The complex aspect of legal
autonomy is expressed by three principles lsquojudicial independencersquo lsquoinborn rightsrsquo and lsquoobligations
over rightsrsquo The last aspect of due process is defined in terms of the principle of lsquopresumption of
innocencersquo (pp 202-03)
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 66
American comparativist Merryman (1985) gave legal tradition a more detailed
description ldquoa legal tradition (as opposed to a system) is a set of deeply rooted
historically conditioned attitudes about the nature of law about the role of law in the
society and the policy about the proper organization of the operation of a legal system
and about the way law is or should be made applied and studied perfected and
taughtrdquo (p 2) For Merryman the shared cultural traits of different legal systems have
their origin in legal tradition in other words legal tradition is what endows them with
those shared cultural traits In this sense legal culture comes from legal tradition
However many have contended that the difference between legal tradition and
legal culture is merely one of emphasis Legal tradition signifies a historical
perspective while legal culture refers more to the anthropological ethnic or
socio-political perspective of law As we shall see legal culture is regarded as
peoplersquos conception of law either in its contemporary manifestation or in its historical
growth ie legal tradition The term ldquolegal culturerdquo is concerned more with
theoretical or ideological opinions than with actual behaviours or practices
313 Legal Culture as Both Conceptions and Practices of Law
For other scholars legal culture not only refers to what is conceived in peoplersquos
mind but also to their behaviours and practices with respect to law In a comparative
research on differences between the common law and civil law Curran (1998)
acknowledged that there were fundamental differences between the common law and
civil law with respect to ldquomentalitiesrdquo ldquomode of thinkingrdquo ldquothe method of reasoningrdquo
and ldquolegal trainingrdquo that can be considered as composing elements of legal culture (p
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 67
70) Curran then analyzed the ldquoattributesrdquo that were ldquocharacteristic of common-lawrdquo
legal culture ldquobut uncharacteristic of civil-lawrdquo legal culture by observing that the
common law was ldquoa law defined in terms of past judicial decisionsrdquo and evolved with
the legal rules from ldquoprior judicial decisionsrdquo while the civil law attached more
importance to codification (pp 71-75) Curran also noted that ldquothe prominence of the
proceduralrdquo was another distinct feature in common law legal culture (p 81) Most
importantly common law legal professionals had been habitually skilful in ldquoreasoning
by analogyrdquo and produced ldquoan accumulated body of arguably similar and dissimilar
prior casesrdquo and ldquoconsequently statutory norms are lain on a Procrustean bed of
precedents even when they have never yet been subject to adjudication in the relevant
jurisdictionrdquo (p 83) Curran then concluded that ldquothe significance of the common law
thus resides in the case law even where the common-law court is applying a statute
and even where the statute is newrdquo (p 83)
Blankenburg devoted many years and much literature to the study of legal
culture Blankenburg amp Verwoerd (1988) observed that there were two conceptions of
legal culture One conception treated law as a system consisting of rules and
principles The other viewed legal culture not only as the above rules and principles
but also as the institutional practices attitudes and behaviour of legal actors (p 10)
Blankenbrug amp Bruinsma (1994) reinforced the above view in another study of Dutch
legal culture They identified Dutch legal culture at four levels (1) ldquolaw in booksrdquo (2)
ldquolaw in actionrdquo (3) legal behaviours such as litigation preferences and (4) ldquoelite legal
consciousnessrdquo (pp 13-14)34 In another comparative work Blankenburg (1998)
34 In giving a detailed description of ldquolaw in booksrdquo Blankenburg (1998) held that it ldquocomprises the
body of substantive as well as procedural law that is considered legally valid helliprdquo As for the concrete
substances of ldquolaw in actionrdquo Blankenburg (1998 p 13) claimed that it ldquois channeled by the
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 68
investigated the patterns of legal culture by comparing the legal institutions with those
of Germany He argued that legal culture was ldquocharacterized by indicators of
institutions as well as behaviourrdquo (p39) Acknowledging that the conception of legal
culture was a comprehensive one he extended Friedmanrsquos ldquooperational definitionsrdquo of
legal culture ie attitudes values and beliefs to ldquointerrelationship of various levelsrdquo
that were more suitable for comparative and descriptive studies (p 40) These levels
are (1) ldquopatterns of legal behaviourrdquo such as litigation behaviour (2) ldquopatterns of
legal consciousnessrdquo (3) patterns of institutional behaviour such as ldquothe legal training
the composition of the legal profession the organization of courts and the
infrastructure of access to themrdquo (p 41) Blankenburg held that patterns of legal
culture (the above three levels) could serve as indicators when comparing legal
cultures We can see that the above researchers are not satisfied with limiting the
concept of legal culture merely to conceptions of law held by people Moreover they
employ the concept of legal culture to refer to a wide range of phenomena such as
litigation preferences in a society the practice of legal training and education and
shared behavioural patterns among legal professionals For our present purpose we
will consider legal culture less as a universal value system that directs peoplersquos
actions and more as a variety of conceptual instruments for classifying attributes of
peoplersquos conceptions and practices We will additionally focus more on those aspects
of legal culture which have a direct bearing on our inquiry into legal translation
institutional infrastructure of the legal system Two important elements of this infrastructure are the
judicial court system and the legal profession In their shadow para-judicial institutions may be
substitutes for the formal court system and the legal profession helliprdquo (p 13)
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 69
32 Clarification of the Concept of Legal Culture
Concerning the actual relevance of legal culture to legal translation we would
like to note the following First despite the denunciation of translation as linguistic
transcoding in arguments for a culturally oriented approach against a linguistically
oriented approach in general translation theory (Snell-Hornby 1990 pp 79-85)
translation remains by nature an act of linguistic transcoding and the proposition of
translation as cultural transfer actually represents one pole of the interpretation of
cultural transfer in translation ie cultural transfer as domestication Secondly
cultural transfer as foreignization is best exemplified in legal translation since the goal
of legal translation is to reproduce a legal text in the target language which has the
same meaning as the source text while also transferring the legal culture of the source
text into the target language text The legal translator is bound to achieve semantic
equivalence in cultural transfer foreignization Thus concepts like linguistic
transcoding cultural transfer semantic equivalence and legal culture deserve serious
treatment as these notions with their interpretations determine how we think about
legal translation and also shape the specific theoretical framework we construct in the
special context of translating the common law into Chinese We earlier clarified the
concepts of linguistic transcoding cultural transfer and semantic equivalence and we
have just investigated the concept of legal culture and its various interpretations in the
previous section As we do not wish to generalize and make broad statements of legal
culture that might crumble under logical analysis we must now clarify the concept of
legal culture insofar as it relates intimately to legal translation
Let us first consider the process of legal translation illustrated by the following
diagram
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 70
(1) SL (Language of Source Legal Text) TL (Language of Target Legal text)
Legal culture
embedded in
source text
Transference of
the legal culture
Linguistic transcoding
Which
sense of legal
culture could
find
representation
in the source
legal text
-Legal ideology
-Legal studies legal education
and legal theory
-Shared attitudes values and
beliefs
-Shared norms and modes of
thinking
Variations of
the concept of
legal culture
in literature
Which
sense of legal
culture could
find
representation
in the target
legal text
ST
(Source
Text)
TT
(Target
Text)
Language of
the source
legal text
Language of
the equivalent
legal Text
(2) Assumed SC (Culture of the Source Text) SC (Culture of the Source Text)
Figure 32 Process of Legal Translation
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 71
The first plane depicts the process of linguistic transcoding where the legal translator
represents the source legal text with the equivalent legal text in the target language In
other words the two end products of legal texts should convey the same legal
meaning The second plane depicts the process of transferring the legal culture We
note that during the translation process what should be maintained intact is the
source legal culture This point is emphasized as it echoes with our previous
observation that cultural transfer as foreignization is the transfer of the source culture
into the target language instead of naturalizing the source culture with the
overwhelming conventions of the target culture Obviously enough what could be
transferred are the variables that have the most direct and intimate bearing on the
language of the source legal text since the process of foreignization is inseparably
bound up with the process of achieving conceptual semantic equivalence Resuming
our task of finding the legal culture embedded in source text we also ask in figure 32
which sense of legal culture could find representation in the legal text We recall that
the concept of legal culture as examined in the previous section is employed to refer
to a variety of objects that can be grouped into two major categories legal culture as
peoplersquos conceptions of law or as both conceptions and practices In legal translation
the legal translator is faced with the substantive legal textsmdashlaws in their written
form
Take the example of tort law in Hong Kong Although Hong Kongrsquos tort law has
its origin in English tort law some of the legal practices of judges and lawyers may
vary from other common law jurisdictions Legal professionals in Hong Kong may
share the same knowledge and belief in the law of tort ie ldquotort in booksrdquo but what is
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 72
the status of ldquotort in actionrdquo35 It is interesting to note that for example courts in
Hong Kong are reluctant to use actuarial evidence in the calculation of damages in the
tort litigation In consequence lawyers are also cautious on whether to provide
actuarial evidence in the court Such practice and behaviour by legal professionals
with regard to tort litigation in Blankenburgrsquos (1994 pp 13-4 amp 1998 pp 39-41)
view was also evidence of the legal culture However it is impossible for the legal
translator to deal with legal culture in that sense as the final encounter of the legal
translator is the legal textmdashthe source language that legal culture is embedded in
Lloyd (1964) thought that the great achievement of the human language especially
the language of law lay in its capacity to create ldquogeneral concepts which provide the
essential tools of human reflectionrdquo (p 285) In explaining the conceptual thinking in
the common law Lloyd remarked
For instance if we take the rules of the criminal law relating to such matters as murder and theft
it is quite true that these are in themselves legal concepts which only have meaning in the
context of legal rules which go to form a legal system We can only understand what is meant by
murder by acquainting ourselves with the legal constituents of this offence and how these
operate in the legal system hellip The law hellip needs to conceptualize these and other related ideas
much more precisely before it can operate a system of criminal law in a rational and systematic
way (pp 289-90)
As Farrar and Dugdale (1990 p 246) put it ldquolaw is more an expression of the
culture of the lawmaking elite rather than that of society at largerdquo the conceptual
35 Here we borrow Blankenburgrsquos idea We use the expression ldquotort in booksrdquo to refer to the body of
substantive and procedural tort law In similar vein we use the expression ldquotort in actionrdquo to
characterize the legal practice and behaviour of the judicial court system and the legal profession
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 73
thinking is that of legal professionals rather than that of the general public In
translating the law in books therefore the legal translator should have an adequate
knowledge of the conceptual thinking of legal professionals and transfer this into the
target language Similarly legal culture as viewed in this study refers to the
conceptual thinking about the law shared by legal professionals To sum up briefly
the above schematic framework of exemplification has the merit of simplicity but is
merely the skeleton on which we must build This endeavour may lead to conceptual
refinements and help to narrow down the concept of legal culture to fit our analysis of
legal translation We proceed in the next section to pin down the substantive contents
of legal culture with which the legal translator must cope in translating the common
law into Chinese
33 The Legal Culture of the Common Law
Identification of the concept of legal culture as the conceptual thinking shared by
legal professionals leads us in the present study to a further question what precisely
are these legal conceptions shared by the legal professionals as far as the common law
is concerned Since the culture of the common law as it stands is representative of its
legal tradition we need to look first at the development of the culture of the common
law from a historical perspective ie the common law tradition before we can begin
to analyze its substantive construction36
36 Theorists of comparative law are inclined to use the common law tradition vs civil tradition to
compare between the worldrsquos two major legal systems Comparative studies of the common law and
civil law tend to generalize about the characteristic differences between the two legal systems as if their
traditional features were crystallized even if they do acknowledge that some constructs are peculiar to a
single jurisdiction
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 74
The common law is the system of law that prevails in England and in countries
colonized by England The very name is derived from the medieval theory that the
law administered by the kings courts represented the common custom of the realm
The distinctive feature of the common law is that it represents the law of the courts as
expressed in judicial decisions The grounds for deciding cases are found in
precedents provided by past decisions as contrasted to the civil law system which is
based on statutes and prescribed texts It emphasizes the centrality of the judge in the
gradual development of law and the idea that law is found in the distillation and
continual restatement of legal doctrine through the decision of the courts The
common law consists of the rules and other doctrine developed gradually by the
judges of the English royal courts as the foundation of their decisions and added to
over time by judges of those various jurisdictions recognizing the authority of this
accumulating doctrine This concept is embodied in the doctrine of stare decisis
(ldquostanding by decisionsrdquo) that emphasizes the importance of legal precedents
established in previously settled cases The establishment of the common law gives
rise to leading concepts like ldquopersonsrdquo ldquorights and dutiesrdquo and ldquoownership property
and possessionrdquo (Lloyd 1964 pp 300-25) The common laws unity has been
attributed to the fact that law is grounded in and logically derived from a handful of
general principles and that whole subject areas such as contract or tort are
distinguished by common principles or elements that fix the boundaries of each
subject area
The common law tradition shapes the construct of the common law serving as its
philosophical and practical foundation Since the present study focuses on the
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 75
conceptual expression of legal culture in general we will concentrate on the
conceptual features of the common law rather than its practical features37
Let us first consider the translation of one fragment of the legislation of Hong
Kong found under the heading Apportionment of liability in case of contributory
negligence
Where any person suffers damage as the result partly of his own fault and partly of the fault of
any other person or persons a claim in respect of that damage shall not be defeated by reason of
the fault of the person suffering the damage but the damages recoverable in respect thereof
shall be reduced to such extent as the court thinks just and equitable having regard to the
claimants share in the responsibility for the damage (Amended LN 337 of 1989) (Cap 23
Sect 21)
The Chinese translation is as follows
條文標題有共分疏忽時法律責任的分攤
如任何人受到損害部分原因是該人本人的過失而部分原因是他人的過失則就該損害
提出的申索不得因受損害者有過失而敗訴但就該申索可追討的損害賠償則必須減少
而減少的程度是法院在顧及申索人對損害應分擔的責任後認為是公正與公平的款額
In the light of figure 32 the legal texts are two linguistic products directly linked
by semantic equivalence Let us explain the thinking process behind such end
37 By practical features we mean the characteristic behaviour and practice of legal professionals and
legal institutions such as how the legal training or education is performed how law is applied by
judges and lawyers etc
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 76
products When faced with the English legal text the legal translator seeks to extract
its meaning Clearly she needs to delve into the culture of the common law in order to
understand all the shades of meaning of the English legal text and produce a Chinese
legal text with the same meaning Here arises the real problem what exactly are those
cultural factors of the Common Law that she needs to pin down To understand the
whole world of culture behind every term we need to do legal research trying as
Vandevelde (1996) nicely put it to think like a lawyer We need to know the
subjective classifications the law addresses in the above example we must
understand that the ordinance belongs to an important branch of common lawmdashtort
law We then need to master the conceptual development of the specified law The
common law concept of tort is best defined as a civil wrong which the victim seeks
remedy for in the form of some kind of damages Examples of a tort would be assault
battery false imprisonment and negligence
Let us turn back to the substantive content of the ordinance mentioned above
The ordinance deals with one defence of negligence contributory negligence In
common law the principle of contributory negligence takes into account the relative
degrees of fault between the plaintiff and defendant and attempts to adjust award of
damages accordingly In the light of our categorization of the concept of legal culture
the above discussed legal concepts and legal principles embedded in the ordinance
reflect the shared beliefs of the legal professionals in the common law and fall under
the category of peoplersquos conceptions of law
The common law then is built on a series of traditionally well-formed legal
concepts which belong to different conceptual classifications such as tort equity
contract etc if legal tradition is regarded as the deeply rooted historically formed
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 77
attitudes towards law38 Practically legal principles in each subject of the law have
been developed into concrete and coherent constructions that make up the common
law we see before us today Therefore the common law is an accumulation of
deep-rooted historically moulded conceptual thinking shared by legal professionals
and reflected in two aspects legal concepts and legal principles Together these make
up the substance of the common lawrsquos legal culture
34 The Legal Culture of Traditional and Modern Chinese Law
As noted in section 222 the act of translating the common law into Chinese was
at the same time creating a variety of the Chinese language namely common law
Chinese as Chinese had not developed as a language to express the common law
before its translation Historically the development of Chinese legal language
represents the evolution of Chinarsquos legal culture Thus an investigation of the legal
culture of traditional and modern Chinese law serves two purposes First it will show
how the legal culture of traditional and modern Chinese law differs from that of the
38 Curran (2001 p59) also noticed this fundamental nature of the common law but instead of
conceptual ldquoclassificationrdquo she referred to conceptual ldquocategorizationrdquo Curran observed
hellip categorization is the process that underlies and determines differences in cultural contexts
Cultures differ from each other on the basis of the underlying categories in which members of
that culture place the empirically observed data categories whose own construction brings
certain observed data into sharp delineation hellip Thus cultural contexts result from sub-structural
patterns of classification in each culture hellip in contradiction to the Common Law system of
monetary remedies as the norm (normal remedies for breach of contract) and specific
performance the exception The Common Lawrsquos stark delineation between tort and contract law
is alien to the civil law with the concept of lsquofaultrsquo indispensable to civil law contract analysis
while unfamiliar in the Common Law contract analysisrdquo (pp 59 82)
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 78
common law Second it will show how Chinese has become an appropriate language
for expressing the common law through the evolution of Chinarsquos legal culture
Traditional Chinese law refers to the law operating in China up to 1911 when the
last imperial dynasty the Qing Dynasty fell Given its long history of feudal
monarchical and imperial regimes China can on this score be regarded as a stagnant
society Despite the stagnation of Chinarsquos political institutions traditional Chinese
law had undergone continuous development with a legal tradition distinct from the
two major legal traditions in the West ie the common law and the civil law The law
operating in different dynasties has its own peculiar features It is generally agreed
that the earliest authentic document on law in China is the Kanggao in Shangshu (尚
書康誥) in the Zhou Dynasty (c 1045-256 BC) Jiang (2003) held that the main idea
in Kanggao was the advancement of virtue (德) and the exercise of discretion in
punishment (明德慎罰) (p 1) However legalism (法家) prevailed and became the
central governing idea of the Qin Dynasty (221-206 BC) In this context Fa (法)
means law or principle which represents the political philosophy that upholds the rule
of law39 The Tang Code (618-906) in the Tang Dynasty was considered one of the
most important codes in Chinese history40 The central philosophy of law in the Tang
39 The main thoughts of legalism included the following the code must be clearly written and made
public all people under the ruler were equal before the law laws should reward those who obey them
and punish accordingly those who dare to break them (Jiang 2003 pp 15-31) Chen (1999) also noted
that
The bamboo strips found in 1975 contain strikingly sophisticated law and institutions from the
Qing Dynasty (221-206 BC) these legal arrangements perhaps represent the most advanced stage
of legal development of the time in the worldrdquo (p 6)
40 Johnson (1979) rightly pointed out the significance of the Tang Code in the history of traditional
Chinese law
Though based on earlier sources Trsquoang legislation has been more important historically than that
of any other dynasty hellip The great criminal code entitled The Trsquoang Code (Gu Tang Lu shu yi 故
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 79
Code was summarized as the advancement of li (一本于禮 ) (Jiang 2003
pp123-34)41 Chrsquou (1961) provided a definition of li
The li which may be defined as the rules of behaviour varying in accordance with onersquos status
defined in the various forms of social relationships were formulated by the Confucianists for this
purpose They are the means by which differences in status and role are maintained (pp 230-31)
Therefore a person in a different title and position was required to follow different li
Johnson (1979) also noted that li was the guiding principle for different classes
especially favoured ones (p 11) The Tang Code was considered the earliest model of
criminal law in China and had a strong influence on the development of criminal law
in other East Asian countries42 Johnson (1979) pointed out
hellip the Trsquoang dynasty is the earliest time from which we can obtain an accurate picture of the
range of Chinese criminal law during the imperial period and the structure of ideas that underlay
its provisions (p 8)
Thus the Tang Code had a far-reaching influence on the traditional Chinese law since
ldquoafter the fall of the Trsquoang dynasty the Code continued to dominate Chinese criminal
legislation until the end of the imperial periodrdquo (p 13)
唐律疏議 hereafter referred to as Code) hellip Though only the Code has survived in entirety we
know from historical sources as well as from still extant fragments that there was a large body of
written law in effect during the Trsquoang period There were four main divisions the Code (lu 律)
the Statutes (ling 令) the Regulations (ge 格) and the Ordinances (shi 式) (p5) 41 The term li (禮) is usually translated as rite ceremonies or propriety It is also translated as morality
(Johnson 1979 p 11) 42 Meijer (1976) noted some of the features of the Tang Code
The legal provisions were models and analogical application was allowed hellip The law itself also
often gave rules that a certain act should be similarly punished as an offence defined under a
different heading (p 4)
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 80
The Daqing Luumlli(大清律例) compiled in the Qing Dynasty was considered as a
rather comprehensive criminal code 43 Meijer (1976) compared the criminal
provisions in the Tang and Qing Codes to show the development of criminal law in
traditional Chinese law Meijer noted
The provisions were of a simple character categorical classification did not occur as the
evaluation of each act depended on the circumstances So there were not simply provisions for
intentional or unintentional homicide but special articles for parricide ldquoplannedrdquo homicide
homicide in a game by mistake ldquowithout authorityrdquo of more persons of one family of a senior
of the family and vice versa of the slave by the master and vv of an official in an affray by
means of poison or misused drug in hunting etc In the Ta-Chrsquoing Hui-tien the Collected
Institutes of the Chrsquoing dynasty they are classified as the six (ways of) homicide Liu-sha viz
homicide planned intentional in an affray by mistake by negligence and without authority (p
4)
We can see that in the course of the development of traditional Chinese law the focus
is largely on the penal systems and that the sovereignrsquos power to make laws is closely
intertwined with punishments
Since we are not intending to conduct a fully comprehensive analysis of the
development of traditional Chinese law our emphasis will be on the characterization 43 Meijer (1976) introduced the provisions contained in the Qing Code
The Code was divided into seven chapters viz the General Provisions (Ming Li) or Rules about
Names Definitions or Denominators of Offences containing rules about the punishments the ten
ldquoabominationsrdquo privileged classes offences by officials special classes of offenders
impardonable offences increase and reduction of punishment voluntary surrender to justice
indemnification joint offences contradictory provisions in the code desertion of soldiers
terminology The other six chapters contained the rules for the specific offences helliprdquo (pp 4-5)
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 81
of the legal culture of traditional Chinese law As noted in section 31 theorists
treated legal culture either as peoplersquos conceptions of law or the combination of
peoplersquos conceptions and practices of law As defined in section 32 legal culture in
this study refers to the conceptual thinking shared by legal professionals Since it is
generally agreed that traditional Chinese law was built on traditional Chinese
philosophy the thoughts shared by traditional Chinese philosophers were embodied in
traditional Chinese codes inherited from one dynasty to another with constant
supplement and revision by each subsequent dynasty Therefore the legal culture of
traditional Chinese law refers to the conceptual thinking of traditional Chinese
philosophers which found an embodiment in the law Let us look at the typical
features of the conceptual thinking embodied in traditional Chinese law and compare
them with the legal culture of the Common Law
It is generally agreed that Confucianism is one of the most important philosophies
manifested in the underlying traditional Chinese law Chrsquou (1961) remarked
The main characteristics of traditional Chinese law are to be found the concept of family and in
the system of classes Since these concepts are basic to Confucian ideology and to Chinese society
they are also basic to Chinese law as well (p9)
Though Confucianism provided the fundamental substance of traditional Chinese law
it was by no means the only philosophy influencing the development of traditional
Chinese law44 Chen (1999) noted
44 Chen (1999) pointed out
hellipthere is always a danger of over-generalization and over-simplification when dealing with a
tradition and a civilization spanning several thousand years In the case of China the traditional
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 82
Traditional Chinese conceptions of law have been largely influenced by writings of traditional
schools of philosophy Of these three have had a particular influence namely Ru Jia
(Confucianism) Fa Jia (Legalism) and Yin-Yang Jia with Confucianism being the dominant
force since the Han Dynasty (206 BC) (p 7)
As traditional Chinese law developed it came to incorporate two controversial
philosophies ie Confucianism and Legalism Chen (1999) observed that the central
view of Confucianism was ldquothe educational function of morality (li) in governing a
staterdquo (p7)45 Thus people were distinguished according to their status this should be
clearly defined so that people of different status could carry out their roles properly
and conform to approved patterns of behaviour Johnson (1969) held that the thought
of li promoted by Confucianism had at least three major impacts on the conceptual
thinking of traditional Chinese law First in traditional Chinese law ldquoa hierarchical
structure of superior-subordinate relationship is treated as natural and indispensable to
regulate human relationshipsrdquo Secondly it helped the sovereign ldquodevelop a legal
concept of rulership which is dovetailed with the concept of virtuous leadersrdquo Thirdly
ldquolaw is treated as rules of propriety rather than a device to protect individual rightsrdquo
(pp16-17)
society and legal culture are often described as lsquoConfucianrsquo However Confucian teachings as
reflected in the Confucian Classics have been the subject of endless interpretation and
reinterpretation by both philosophers and the ruling elites in China Views on and attitudes
towards the governance of society and law within one school of thought are often as diverse as
those between different schools of philosophy In this sense the term lsquoConfucianismrsquo is perhaps
quite misleading (p 4) 45 Liji (Code of Rites 禮記) (Western Zhou Dynasty c 900-771 BC) became the basis for
Confucianism
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 83
Chrsquou (1961) also noted that although legalists ldquodid not deny the reality of social
differentiation they made no attempt to distinguish people in different social statusrdquo
(p 242) Instead they advocated ldquoa uniform law a uniform reward and punishmentrdquo
(Ibid) In analyzing the criminal law of Qinluuml (秦律) which best reflected the thought
of legalism Liu (1998) remarked
[In] hellip analysis of the criminal law of Qin this is of great significance since it was upon this basis
that the Qin Lu divided crimes into two basic categories namely gong shi gao (official
denunciation) and fei gong shi gao (unofficial denunciation)(p 226)46
It is interesting to note that such a division of crimes was made on the basis of
the individual family at that time the basic unit of society Liu explained that ldquowhere
anyone who intentionally infringed upon the rights of person and property of people
who were not members of his own household it would be treated as a case of official
denunciationrdquo and vice versa (p 226) Different punishments were meted out
according to the above two kinds of offences In this regard Confucianists strongly
objected to the emphasis on severe punishment for maintaining social order
Confucianists instead promoted Shangang (三綱) and Wulun (五倫) which can be
translated as ldquothree bondsrdquo and ldquofive human relationshipsrdquo (Chrsquou 1961 pp
236-37)47 In conclusion ldquothe dispute between Confucianism and Legalism was more
46 As a primary Legalist (Fa Jia) code the Qin Lu (Qin Code) framed by Shang Yang (c 300 BC)
institutes uniform rules for social behavior and attempts impartial rewards and punishment Harsh
punishments were based on lianzuo (linked seats) idea of punishing clan members friends and
associates in addition to the perpetrator 47 As for the three bonds and five human relationships Chrsquou (1961) explained
hellip the five human relationships are but concrete types of reciprocal relationships derived from
the more general categories of ldquonoble and humblerdquo ldquosuperior and inferiorrdquo ldquoelder and youngerrdquo
ldquonear and remoterdquohellipThe first three relationships have also been called Sang-Kang the ldquothree
bondsrdquo by Han scholars (pp 236-37)
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 84
than philosophical contention it was a political struggle for supremacy and
domination in state ideology and hence state politicsrdquo (Chen 1999 p 12)
We can see now that the substantive expression of the legal culture of traditional
Chinese law is the conceptual thinking of traditional Chinese philosophies manifested
in Confucianism and Legalism As a result the concepts of li (ldquomoralityrdquo represented
by Confucianism) and xing (ldquopunishmentrdquo represented by Legalism) were intertwined
in codified traditional Chinese laws Compared with the legal culture of the common
law the legal culture of traditional Chinese law exhibits three distinctive features
First there are no such common law concepts as ldquorightsrdquo and ldquorule of lawrdquo in
traditional Chinese law the legal concepts and principles of which are mainly
philosophical in nature In comparing traditional Chinese law with the English law
Gu (2006) pointed out
While the conceptual division of abstract and concrete law transformed English law from an
administrative into a ldquolegalrdquo practice the lack of an abstract concept of rights and the transmutable
boundaries of original legal meanings determined the administrative features of Islamic and
Chinese law (p 4)
Secondly traditional Chinese law did not develop a system of precedents such as are
found in the common law Alford (1995) gives an explanation for this
Contrary to what one might initially expect the imperial Chinese legal system did not adhere to a
formal system of binding precedent although in fact magistrates and other officials involved with
the law did draw on compilations of prior cases as they reached and sought to justify their
decisions But on reflection the absence of binding precedent may actually have connoted an even
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 85
greater embracing of the pastmdashas the Confucian morality and wisdom of the ages that officials
were assumed to have cultivated in preparing for and taking the imperial examinations were surely
seen as a truer and more historically valid guide for making decisions than any set of rules
formulated or cases resolved by onersquos predecessors in office (p 22)
The prevailing philosophy of Confucianism thus became a hindrance for the
development of legal professionals and the system of binding precedents Despite the
fact that there was a large body of codified laws in traditional Chinese society it was
by no means a legally oriented society
Thirdly given its penal emphasis traditional Chinese law did not pay attention to
matters of a civil nature eg contracts property rights inheritance marriage etc
The legal system was made to serve state interests not to protect individual rights or
to resolve disputes among individuals ldquoThe Chinese neither saw public positive law
as the defining focus of social nor divided it into distinct categories of civil and
criminalrdquo (Alfrod 1995 p 10) As a result the civil law concepts and principles of
the common law are mostly absent in the Chinese language As for criminal law the
difference between traditional Chinese law and the common law is enormous
Though modern Chinese law refers to the law operating in China after the fall of
the last imperial dynasty there were attempts at legal reform in the late Qing dynasty
which had considerable impact on the social and economic development of early
modern China Chen (1999) called the late Qing reform ldquothe westernization of
Chinese lawrdquo since the pressure for reforming traditional values and systems led to the
introduction of ldquowestern economic cultural and political ideasrdquo by the late 19th
century (pp 17-18) The reform was conducted in two stages Chen (1999) notes
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 86
The first stage was to revise the old law with its focus on abolishing the cruel punishments which
then existed hellip the second-stage reform the making of new codes in line with Western laws was
carried out almost simultaneously hellip(p20)
Besides the focus on the reform of criminal law some elements of civil law were
beginning to take shape in China In 1901 the first Chinese company law became
effective introducing ldquothe idea of limited liabilityrdquo and it ldquotook a highly supportive
approach toward entrepreneurial endeavourrdquo (Alfrod 1995 p 48)
The revolution led by Sun Yatsen overthrew the regime of the Qing dynasty and
a Republican government was established in 1912 Legal reform which Chen (1999)
called ldquothe modernzation of Chinese lawrdquo was continued (p 23) The reform was
guided by ldquothree Principles of the PeoplemdashNationalism (minzhu) Democracy
(minquan) and Peoplersquos Livelihood (mingsheng)rdquo (p24) Compared with the Qing
reform the legislation of the Republican government took the Chinese traditions and
customs into consideration in ldquoadopting and adapting Western legal doctrines and
institutionsrdquo (p 28)48
The PRCrsquos legal system was built on the model of Soviet socialist law which
was much closer in form to the legal systems of continental Europe than to the
Common Law with considerable modifications in accordance with Marxist ideology
During the 1950s a large body of laws was comprehensively codified under Maorsquos
48 Chen (1999) holds that law reform of Republican government was more progressive compared with
the Qing reform He remarks
Besides its conservative approach to family and succession matters the Qing reform largely failed
to preserve certain ancient and deep-rooted customs such as the civil law institutions of Yung-tien
(a long-term lease) and Dien (a kind of usufructuary mortgage) (pp 27-28)
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 87
leadership Chen (1999) noted that PRC law experienced another stage of
development under Dengrsquos leadership especially since 1992 when ldquothe Party adopted
the notions of a ldquosocialist market economyrdquo and ldquoassimilation or harmonization with
international practicerdquo (p 49) With the codification of a series of laws such as the
Company Law (1993) the Foreign Trade Law (1994) the Insurance Law (1995) the
PRC legal system underwent many changes in keeping with international practice
Chen remarks
Taxation law joint venture laws intellectual property protection law and most recently the
Criminal Procedure Law and the Criminal Law have all undergone major revisions Further
China has now ratified a large number of international conventions dealing with international
economic relations especially intellectual property protection Thus Western scholars now find
familiar language in Chinese law since Chinese law in its forms structure and methodologies
has become unmistakably Western (p 55)
Paler (2005) also agrees that decades of legal reform of the PRC law represent ldquoa
significant attempt to produce a more orderly and open legislative system in Chinardquo a
modern legal system of legal rules that support its emerging market economy (p 302)
There are three major features of the legal culture of modern Chinese law compared
with that of the Common Law First the notion of rule of law which is a foundational
concept in the Common Law is something of an imported idea in modern Chinese
law and the same term carries a rather different meaning in the two different legal
cultures The legal principles and concepts are derived from the legislation which is
the primary source of law Secondly modern Chinese law modelled on the civil law
system shares the characteristics of the civil law system rather than those of the
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 88
common law49 In particular the basic principles and concepts of criminal law in
modern Chinese law are substantially different from those in the common law
Thirdly with the progress of legal reform certain branches of law including company
law insurance law and trade law show similarities with elements of the Common
Law We shall see that the feature of the PRC legal system is fundamentally socialist
but with a newly developed modern economic legal framework Despite the fact that
many of the basic principles and concepts in modern Chinese law are substantially
different from those of the common law borrowing from other legal systems and
transfer of foreign laws into China are both features of traditional and modern Chinese
law In the next chapter therefore we will investigate the transfer of the legal culture
of foreign laws into China since this can shed light on the translation of the common
law into Chinese
49 David amp Cohan (1985) gave two major reasons for this First it was attributed to the Europeanization
of China between the 19th and 20th centuries The other is the fact that the PRC had inherited the
Chinese legal tradition where the statutes or codes were highly valued throughout the imperial period
ie from the Qin Dynasty to the Qing Dynasty
Chapter 4
The Transfer of Legal Culture
41 Legal Transplant and the Transfer of Legal Culture
411 Introduction
We have noted that legal culture ie the conceptual thinking shared by legal
professionals is an essential yet inseparable component of any legal system The
transfer of legal culture can take place when the law of one country is moved to
another or when two legal systems come into contact Transposition of law from one
society to another is generally known as legal transplant While this is an extensively
researched area in comparative law in recent years legal transplant is as old as the law
itself Earlier legal transplants such as the transposition of Roman laws to Europe
offer a well-known example (Watson 1974) Since transplantation involves the
transfer of the conceptual thinking of the imported law legal transplant often brings
about a transfer of legal culture We will examine the relationship between legal
transplant and legal translation the causes of legal transplant and its role in the
transfer of legal culture In so doing we hope to arrive at a better understanding of the
theoretical background surrounding the transfer of legal culture in legal translation
Watson (1974) the founding scholar in modern legal transplant theory
described it as ldquothe moving of a rule or system of law from one country to another or
from one people to anotherrdquo (p 21) Watson identified legal transplant with legal
THE TRANSFER OF LEGAL CULTURE 90
borrowing and argued that the phenomena of legal transplant had ldquobeen common
since the earlier recorded historyrdquo (p21) According to Watson the object of legal
transplant is rules By ldquorulesrdquo he meant not just statutory rules but also institutions
legal concepts and structures (2001a)50 Watson held that legal borrowing can take
place between societies with very different political social economic and religious
conditions and that usually the borrowing is from the more developed and complex
system (2001b p 215)51 In analyzing Watsonrsquos concept of legal transplant Cottrrell
(2001) held that comparative legal history is the primary tool of legal research and
borrowing is usually the major element in legal change (p 71) 52
Legrand (2001) disagreed with Watsonrsquos definition of legal transplant however
contending that Watson reduced it to the movement of ldquorulesmdashwhich are usually not
defined but which are conventionally taken to mean legislated texts and though less
peremptorily judicial decisionsrdquo (pp 55-56) He argued that legal transplant was in
essence impossible since ldquowhat can be displaced from one jurisdiction to another is
literally a meaningless form of wordsrdquo (p 63) Cottrrell (2001) agreed with Legrandrsquos
criticism remarking
50 Watson Alan ldquoLegal transplant and European Private Lawrdquo Ius Commune Lectures on European
Private Law 2 (electronic version) Dutch Institute of Comparative Law
(httpwwwejclorg44art44-2html accessed on March 15 2008) 51 Watson also pointed out that law in writing was an obvious source for borrowing the reception of
Roman law (and of canon law) in Western Europe and the success of the Sachsenspiegel in medieval
Germany of the French code civil in Europe and Latin America are all powerful examples (2001b
p215) 52 Cottrrell (2001) summarized Watsonrsquos views thus firstly transplantation of legal rules between
legal systems was a principal explanation for the growth of law secondly social need was not the
decisive force in legal development thirdly legal changes were largely controlled by the internal legal
professional elites fourthly legal rules survived over long periods despite significant variation in the
social context on which they operate fifthly the development of some important bodies of law was
largely the result of legal history (pp71-72)
THE TRANSFER OF LEGAL CULTURE 91
hellip an emphasis on legal culture may highlight the difficulty or even impossibility of transplants
since a legal culture is not easily replaced by a different one and legal rules are understood in
relation to legal cultures (2001 p78)
As noted in section 312 Cotterrell (1997) rejected the concept of legal culture
and proposed to replace it with the term ldquolegal ideologyrdquo He was thus naturally
opposed to the concept of legal transplant since this hinged largely on a proper
definition of legal culture Watson (2001) however refuted Legrandrsquos view
hellip I believe I have shown that massive successful borrowing is commonplace in law hellip Legal
borrowing I would equate with the notion of legal transplant I find it difficult to imagine that
anyone would deny that legal borrowing is of enormous importance in legal development
Likewise I find it hard to imagine that anyone would believe that the borrowed rule would
operate in exactly the way it did in its other home hellip I have continually over more than a quarter
of a century insisted that what are borrowed and can be borrowed are legal rules principles
institutions and even structure (2001 pp 23-24)
In characterizing the relationship between legal tradition and legal culture for
the development of his legal transplant theory Watson (1991) remarked
The answers for understanding the nature of law and its place in society can only be found in the
legal tradition and legal culture (p 4)
We shall see that Cotterrellrsquos dismissal of the concepts of legal culture and legal
transplant is not convincing Just as legal rules should be understood as an element of
legal culture the concept of legal culture should be understood as an indispensable
THE TRANSFER OF LEGAL CULTURE 92
component in legal transplant Though Watson may well not have defined legal
culture he did consider it as the basis for understanding the nature of law and legal
transplant Since we define legal culture in this study as the conceptual thinking of
legal professionals of which legal rules are an integral part it is fair to say that legal
rules are also an inseparable part of legal culture and thus of legal transplant Though
legal transplants may not always be viable we can not simply dismiss them as
impossible History and a fair part of comparative law studies show that legal
transplants have indeed taken place
412 Legal Transplant Legal Imposition and Legal Translation
Legal transplant takes place for many reasons such as authority prestige
political and economic incentives and may take different forms in different countries
In an attempt to explain the phenomenon Sacco (1991) remarked
There are two fundamental causes of imitation (ie legal transplantation) imposition and
prestige Every culture that has faith in itself tends to spread its own institutions Anyone with
the power to do so tends to impose his own upon others Receptions due to pure force however
are reversible and end when the force is removed (p 398)
Likewise Bercowitz (2001) observed that ldquosome legal transplants were imposed
during occupation others were part of a voluntary reform process initiated by the law
receiving countryrdquo (p 8) A fairly wholesale transplantation of legal systems is
possible during an occupation even without any translation of the imported law into
the indigenous language However legal translation is usually the major conduit of
THE TRANSFER OF LEGAL CULTURE 93
legal transplant in the case of legal reform in the receiving country Therefore we
classify legal transplants into two kinds in this study legal imposition at the
socio-political level and legal translation at the socio-linguistic level
Comparative legal scholars have carried out extensive studies on the imposition
of law since the importation of foreign legal systems is widespread and poses
important theoretical problems In search of a definition of legal imposition
Lloyd-Bostock (1979) distinguished between ldquoexternally imposed law and law that
accords with internalized normsrdquo (p 10) She remarked
hellip externally imposed law would include cases ranging from particular instances of law within
an established legal system to the importation of an entire legal system form another culture It is
debatable whether a definition of imposed law should introduce further distinctions between
types of cases but there can be no doubt that explanation of compliance will need to take
account of the wider context in which law has been imposed (p 10)
Lloyd-Bostock opined that looking into the compliance with imposed law would be
an effective way of understanding the social consequences of legal imposition In
seeking to define the term legal imposition Okoth-Ogendo (1979) observed that ldquothe
use of that phrase might imply concern merely with the normative and institutional
legacies of colonialismrdquo (p 147) However his own view was that legal imposition
encompassed ldquoany situation where fundamental change is contemplated in society
through the medium of laws or legal institutions whose content is clearly contrary to
the perceived and accepted normative order of those whose behaviour it seeks to
regulate or changerdquo (p 147) From this perspective legal imposition resulting from
colonialism always gives rise to socio-political change in the society that receives the
THE TRANSFER OF LEGAL CULTURE 94
law Okoth-Ogendo went on to make an in-depth study of the imposition of English
property law in Kenya pointing out that ldquolegal imposition is a rampant practice in
Africardquo and that the ldquoimposition of law can be seen as an expression of dependency
relations between the Third-World (the periphery) and industrialized nations (the
metropolitan centres)rdquo (p 148)
In similar vein Kidder (1979) pointed out that ldquothe prototype of imposed law as
it seems most generally to be understood is the colonial situation where legal systems
are imposed from dominant cultures and forced on indigenous populationsrdquo (p 289)
A case in point is the imposition of common law in British colonies in South East
Asia Accompanied by nineteenth-century colonialism the imposed law radically
reshaped and pluralized the law of much of Africa Asia and the Pacific The research
of Harding (2001) provides a thorough description of legal transplant in South East
Asia where the imposed law survived Following the lead of Watson and other
likeminded scholars he remarked
hellip law in South East Asia has evolved out of legal transplantation which has on the whole
been successful if judged by the criterion of whether the law has stuck or come unstuck In
South East Asia the idea that the history of a system of law is largely a history of borrowing of
legal materials from other legal systems as maintained by Watson Pound and others is proved
remarkably accurate (p213)
The wholesale transplant of the common law system in Southeast Asia also includes
the case of Hong Kong since English law was imposed on Hong Kong after 1843 In
the case of Hong Kong the legal transplant met with a rather benign reception and as
THE TRANSFER OF LEGAL CULTURE 95
Epstein (1989) noted there was little interaction between Hong Kongrsquos legal system
and the laws of the Chinese Mainland after colonization He remarked
For a century and a half British colonial rule has insulated Hong Kongrsquos legal system from law
and legal change on the Chinese mainland Although early provision was made for the
application of Qing dynasty law in Hong Kong in practice the Qing codes had little if any
impact in Hong Kong after 1841 and even the role of customary law has been restricted to
family matters and land tenure in the New Territories (quoted in Wacks 1989 p 38)
Wesley-Smith (1994) held a different view with regard to the influence of
Chinese customary law however In the process of legal transplant colonial officials
typically endeavoured to eliminate customs they considered repugnant such as
polygamy payback killings suttee and many other kinds of practices they considered
uncivilized Yet customary laws continued to have some effect both in Hong Kong
and many other countries53 Wesley-Smith noted that ldquolsquoChinese law and customrsquo
despite its decline as a source of lawmdashmuch of it was abolished prospectively in
1971mdashstill plays an important role in modern Hong Kongrdquo (p 205) In the process of
legal imposition conflicts often emerge between the indigenous and the imposed law
although as already noted the imposition of the common law on Hong Kong was a
fairly well received legal transplant with the imposed law meeting little resistance
when it began to regulate the behaviour of the indigenous inhabitants However the
legal culture ie conceptual thinking about the common law could reside only in the
minds of legal professionals before the common law was translated into Chinese The 53 Harding (2001) gave an example from Singapore where the famous case known as the Six Widows
Case tried by the colonial court raised a crucial question of what kind of law was to be applied in cases
involving local custom the common law or the customary law The court finally decided the case
according to the Chinese polygamous marriage custom (p 210)
THE TRANSFER OF LEGAL CULTURE 96
transfer of the legal culture related to the imposed law can only fully effected until the
conceptual thinking of the imposed law is translated into the indigenous language and
made accessible to local laypeople
Legal translation as a form of legal transplant always involves the transfer of
the legal culture of the translated law at the socio-linguistic level It takes place when
a country or region borrows the legal system of another usually accompanied with
massive translation of the imported law Through legal translation the concepts of the
foreign law are introduced to the indigenous people Compared with legal imposition
legal translation as a form of legal transplant is a more fruitful way of transplanting
legal systems and transferring foreign legal culture since it imports the underlying
legal concepts into the indigenous language As Zhang (2003) pointed out legal
transplant by translation is the most common phenomenon in the course of legal
development in many countries Its history can be traced to the Old Roman Period (p
9) After the medieval period many western European countries such as France
Germany transplanted the Roman codes by way of translation In modern times many
Asian African and American countries have transplanted the laws of western
countries (p 9) Japanrsquos legal development also illustrates how the improvement and
modernization of one statersquos law may occur by way of translation During the Meiji
period there was massive translation of continental European laws into Japanese and
their reception took place in a completely non-European cultural juridical and
religious context
As noted in section 21 translation as cultural transfer usually requires that a
choice is first made between two basic translation strategies namely domestication
and foreignization through which the cultural concepts of SL may either remain
THE TRANSFER OF LEGAL CULTURE 97
un-transferred or be transferred Cultural transfer as domestication may result in
cultural appropriation to which Merry (1998) gave an explanation
The concept defines culture as contested historically changing and subject to redefinition in
multiple and overlapping social fields It emphasizes continual transformations in the meaning
and structure of law rather than any notion that law is embedded in a homogeneous and shared
culture It incorporates the possibility of resistance while recognizing that resistant practices
involve actions that appear to be accommodation and adaptation Changing the way culture is
conceived makes it possible to reimagine the relationship between law and culture Processes of
legal transplantation imposition and borrowing widespread during nineteenth-century
colonialism and contemporary globalization are central sites for examining this relationship
(1998 p 603)
Cultural appropriation can be seen as the resistance to the imported culture which is
changed in form and substance becoming mixed with the indigenous culture Cultural
transfer as domestication contrasts quite sharply with cultural transfer as
foreignization where the target culture accommodates the alien concepts and adapts
to the foreign culture
Legal translation as foreignization necessitates the assimilation of the legal
concepts of foreign laws as is the case with legal transplants in China China has a
long history of legal transplants dating back to the Late Qing dynasty when China
transplanted the German system of civil law Next Japans legal experience exerted
great linguistic and practical influence on Chinas reception of civil law before 1949
Moreover China transplanted the Soviet Unionrsquos legal ideas after 1949 The history
THE TRANSFER OF LEGAL CULTURE 98
of legal transplants in China can usefully elucidate the role that legal translation has
played
42 Transfer of the Legal Culture of Foreign Laws in China
421 Transplant of Foreign Laws since the Late Qing Dynasty in China
The introduction and translation of foreign legal texts into Chinese started since
the Late Qing period The systematic introduction of Western laws together with other
Western sciences commenced with the establishment of Tongwenguan in 186254 In
the Late Qing Dynasty the transformation of social relations demanded a new social
order Zhang (2003) notes how in the early 20th century when the Qing Code was still
in effect the Qing government decided to reform the law and transplant Western legal
principles into China (p 8) Legal translation played a significant role from 1896 to
1936 during which period legal concepts and legal principles of Western laws were
transplanted into traditional Chinese law thus laying the foundations for modern
Chinese Law
Meijer (1976) carried out a comprehensive research into the revision of criminal
codes in the Late Qing period The Qing government established the bureau for the
compilation of laws in 1901 and it set to work ldquotranslating foreign codes of Criminal 54 It is generally assumed that international law and the relevant vocabulary was introduced in China
mainly after the Japanese influence early this century Several other texts on international law were
however translated into Chinese between 1864 and the turn of the century Some of these were
translated by Martin and published by Tongwenguan such as Theodore Dwight Woolseys Introduction
to the Study of International Law (1877) and William Edward Halls A Treatise on International Law
(1903) (Svarverud 1998)
THE TRANSFER OF LEGAL CULTURE 99
Law and Criminal Procedurerdquo in 1904 (pp 9-11)55 During the law reform period ie
from 1901 to 1907 legal concepts and models were imported from Japan Germany
and other continental countries56 According to Meijer (1976) Shen Jiaben one of
the most important figures in the legal reform of the Late Qing Dynasty was
appointed in 1904 as one of the Commissioners (Xiuding Faluuml Dacheg 修訂法律大
臣) responsible for the Office of Codification (Faluuml Bianzhuan Guan 法律編纂館) (p
11) As the leader of the team of translators translating the foreign laws into Chinese
he held that the success of legal reform depended on the translation of the foreign
laws57 The criminal laws and criminal procedures of the civil law system were
studied and translated58 There were two main reasons for modelling the new law on
the continental legal system One was that the continental system inherited
ldquosomething of the old Roman Familiardquo which was similar to the focus of familism in
traditional Chinese society while ldquoAnglo-American Law emphasizes the individual as
against the familyrdquo (p 22) The other reason was that ldquothe concept of state authority
55 Meijer (1976) made a survey of important revisions on the old law which included the ldquosubstitution
of penal servitude for banishment the abolishment for torture and corporal punishment and abrogation
of some severe punishmentrdquo (pp19-37) 56 Chen (1999) noted that ldquoa constitutional reform which aimed at transforming the autocratic empire
into a constitutional monarchy was also begunrdquo (p19) Japanese model was then adopted and ldquoa series
of edicts concerning the establishment of constitutional government and a series of constitutional
projects and documents were issued by the Thronerdquo (p19) 57 According to Zhang (2003) a total of 180 books of foreign laws were translation into Chinese
among which there were 123 law books from Japan 29 from Britain 18 from America 18 from
German 11 from France 2 from Netherland 4 from Sweden 1 from Finland 2 from Russia and 1
from Mexico 58 In relation to the revised law Meijer (1976) noted
They did not only carry out some of the suggestionshellipas eg the change of beating with the
bamboo into fines and the abolition of torture they went further and obtained the abolition of the
cruel ways of capital punishment branding and collective responsibility in criminal matters the
abrogation of three hundred and forty four articles of the standard rules and the change of formal
capital punishment into penal servitude for some cases of homicide (p12)
THE TRANSFER OF LEGAL CULTURE 100
over its citizens as inherited from Roman Law also fitted well into the ultimate goals
of the legal reform to secure the emperorrsquos position permanently to alleviate foreign
aggression and to quell internal disturbancerdquo (p 22)
Apart from criminal law legal concepts of civil law in Western countries were
also transplanted into China from the Late Qing period on Meijer pointed out that
ldquoapart from the field of Criminal Law the Committee for the Compilation of the Laws
also produced a draft for the Bankruptcy Law and the well-known draft for the new
Law of Judicial Procedure both on the 24th of April 1906rdquo (1950 p 31) In his study
on Chinarsquos reception of concepts and elements of Western private law Epstein (1998)
also holds that ldquoforeign influences on Chinese Civil Law are broad and deeprdquo and he
seeks to ldquoillustrate a number of important features of Chinas reception of Western
legal conceptsrdquo (p 154) The history of Chinarsquos reception of Western civil law began
when the ldquoQing imperial government first attempted to transplant Western civil codes
into China at the turn of this centuryrdquo and ldquothe first successful codification of Chinese
Civil Law was promulgated by the Nationalist government between 1929 and 1930rdquo
(Epstein p 153)59 After 1949 China adopted the legal concept of the Soviet Union
that all law is public law deciding ldquoquite literally to banish the words lsquoprivate lawrsquo
from its legal vocabularyrdquo ldquoa textbook on economic law published in Moscow in
1977 was translated and republished in China in December 1980rdquo which ldquomarked the
59 In explaining Chinarsquos borrowing of Civil Law concepts from the west Epstein remarked
The distinction between criminal and Civil Law was first borrowed from the West during the Qing
codifications It was drawn first in procedural law n45 and finally in substantive law by
designating that the civil provisions in the revised Qing Code (Xianxing Xingluuml) of 1910 should
not be subject to punishments Thereafter China adopted the Japanese pattern of Six Laws which
clearly distinguished between private and public civil and Criminal Laws Despite the influence of
Soviet jurisprudence after 1949 the distinction has survived in substance if not in form in the
PRC (1998 p162)
THE TRANSFER OF LEGAL CULTURE 101
second reception of Soviet legal doctrine into Chinardquo (p 164) During the whole
process of legal transplant since the Late Qing Dynasty China adopted legal concepts
mainly from Germany and the Soviet Union and these set the standard for its legal
codifications This also explains why Chinese law is characterized by civil law
traditions After Chinarsquos economic reform in the late 1970s legal transplant by way of
translation was even more visible Suli (2004) remarks
Since the implementation of lsquoOpen and Reformrsquo in China in 1978 the translation of legal works
has been an important part of developments of the Chinese Law Most active legal scholars of
today have in certain stages of their academic careers translated some works or benefited from
the translation of legal works either directly or indirectly hellip Almost no scholar is totally free
from impacts of foreign laws hellip In this sense the legal science of China of today is basically the
result of legal transplants and the transplants have proved to be successful on the whole (p 97)
The Company Law of the PRC (1993) is a major example of continuing
transplant from Western laws among which Americarsquos corporate law was then a
prime source The profound effect of legal transplant on the development of the
Chinese law can be identified from at least two aspects One is the transplanted legal
concepts and legal principles of the civil law system which underlies Chinese law
The other is the analytical tools which have long been used in Chinas adopted civil
law doctrines to guide legislative drafting and which have in part become embodied
and embedded in the law In explaining Chinarsquos legal transplant and the interplay with
its legal culture60 Potter (2004) remarked that ldquoChinarsquos legal reform effort also
60 Concerning Friedmanrsquos definition of legal culture Potter (2004) remarked
THE TRANSFER OF LEGAL CULTURE 102
depends to a significant extent on dynamics of legal culturerdquo hellip thus analysis of
Chinarsquos legal culture would permit ldquohellip appreciation of the tensions between the
globalized systems of liberal legal norms from which many of Chinarsquos legal reform
efforts are drawn and deeply embedded systems of local norms and values (pp
474-75)61 In other words in the process of legal transplant Chinarsquos local legal norms
adapted selectively to foreign legal norms which were finding their way into Chinarsquos
legal culture Given Chinarsquos long history of legal transplant by way of translation it is
thus meaningful to enquire which aspects of the legal cultures of foreign laws have
been transferred in what form they have been transferred and in what way legal
translation could account for the successful transfer of the legal culture of foreign
laws
Legal culture maybe defined by reference to discourses of sociology and political science in terms
of customs values and opinions and ways of thought and behavior (Friedman 1975 15 Ehrmann
1976 Glendon 1985 Varga 1992) (p474)
However his perspective was ldquoto focus legal culture as a basis for understanding the relationship
between imported and local norms (Potter 2003b)rdquo (p474) 61 Potter (2004) argued that foreign laws especially international laws were transplanted into China It
was easy to assume that those laws with its familiar appearance had no difference with their originals
However it was not always the case He noted
Lubman and Peerenboom both remind students of the Chinese Law not to confuse what appear
to be familiar institutional forms in the operation of the Chinese legal regime with the
acceptance of related international norms As we struggle to understand the conflicted interplay
between imported legal forms and local legal norms ideas about selective adaptation and
attendant features of perception complementarity and legitimacy offer potentially useful
perspective form whence to proceed (p486)
THE TRANSFER OF LEGAL CULTURE 103
422 Transfer of the Legal Culture of Foreign Laws in China
As noted in section 22 of chapter 2 legal translation that seeks to transplant
cultural concepts specific to the original legal system is a good example of cultural
transfer as foreignization A case in point is the legal translation in the Late Qing
Dynasty in China which we have just sketched out We will now look at how the
foreign laws were translated during this period and the approach to translation that
was taken Shen Jia-ben had already observed that when Japan translated Western
laws semantic translation was initially adopted However the great number of
mistranslations that occurred had led to the eventual adoption of literal translation In
the case of China the task of translation was far more difficult since there were no
legal terms to express the legal concepts of Western laws Shen thus asked the
translators to strive for fidelity and fluency in translating the criminal laws of France
Germany Russia and Japan (Zhang p 180)62 For example when learning from the
criminal laws of other countries Shen strove to propagate the idea of a ldquolightrdquo
(xingqing) response to crimes by condemning the traditional punishment inflicted on
prisoners such as dismemberment or decapitation followed by the displaying of the
victimrsquos head in public63 We can see that when striving for fidelity to the foreign
62 Zhang (2003) held that legal translation was a very important channel for importing the legal
concepts of Western law into China She quoted Shen Jiaben as follows
參酌各國法律首重翻譯而譯書以法律為最難語意之緩急輕重記述之詳略偏全決
策為精訛立見從前日本譯述西洋各國法律多尚意譯後因訛誤改歸直譯中國名詞
未定移譯更不易言臣深慮失實務令譯員力求信達hellip (p 180) 63 In explaining how the translators deal with the terminological problem in the translation Meijer
(1950) also noted
hellipThe first deals with the term fa-hsing 罰刑 fine which the committee wanted to be changed
into fa-chin 罰金 on historical and logical grounds The first term means punishment of fine
but he word fa may also denote punishment so that the term might become meaningless the
THE TRANSFER OF LEGAL CULTURE 104
laws Shen wished to achieve conceptual semantic equivalence by adopting literal
translation instead of semantic translation which would result in creating new legal
terms in Chinese In such ways were linguistic adjustments made when transferring
the legal concepts of foreign laws into Chinese
As noted in section 222 of chapter 2 whenever a culture is transferred from one
language to another there is also a need for conceptual adjustment which invariably
results in the foreignization of the importing language Regarding this Meijer gave a
thoughtful account in his researching into the memorials written by Shen He
remarked
With the memorials Shen Chia-ben introduced a new criminal code in China A code based on
foreign concepts most which were alien to Chinese thought or which had in the course of history
been discarded as unsuitable for Chinese society The memorials are not a theoretical explanation
of the philosophical back-ground of a new law they are presented as remarks on the revision of
some of the principles of an existing law by borrowing from foreign law hellip Formerly the law was
according to the most accepted doctrine an auxiliary to education It was essentially a part of
ethics it derived its force from the moral code and served as a model for the judge being a
directive for the maintenance of the natural ordermdashtao The new law however reposed on totally
different concepts The law now became a set of rules given by the state in its capacity of keeper
of the public peace and order punishing any acts which were contraries to the minimum
standards of conduct required for an orderly society An offence now became officially an
offence only because the objective Criminal Law forbad it Violators of moral laws were no
second term is more specific meaning punishment-money taking fa in the meaning of
punishmentrdquo (p 52)
THE TRANSFER OF LEGAL CULTURE 105
longer interfered with as long as they stayed within the limits of the Criminal Lawrdquo (1950 pp
70-71)
Meijer here suggests that cultural transfer takes place on the metalinguistic level
rather than via a theoretical explanation of the philosophy behind the new laws
However it can be conceded that such a background still provides a theoretical
framework and working principles for transferring the legal culture of the foreign law
In other words we can understand foreign legal concepts by studying the extent to
which the memorials of Shen (and his colleagues) are explicit about what the newly
coined Chinese legal terms stand for and how they relate to the original legal system
For example Shen distinguished between criminal and civil affairs It ldquowas
established in the memorial asking for permission to print the code of 1910 The
distinction was based on the principle of Shen Chia-benrsquos Draft of the Code governing
Civil and Criminal Procedure of 1906 art 2 and 3 (cf p 43) but somewhat more
elaborated and preacutecisedrdquo (Mejier 1950 p 53) Therefore the memorials serve as an
important metalanguage for transferring the legal culture of the foreign laws
If we recall the discussion of Evans-Pritchardrsquos translation of Azande in section
223 of chapter 2 we shall be reminded that cultural transfer must be effected at the
metalinguistic level As can be seen from Chinarsquos long history of legal transplant by
way of translation the legal concepts and legal principles of foreign laws have been
transferred into Chinese This also shows that successful transfer of the legal culture
of foreign laws requires adjustments to be made in the target translation language and
must involve conceptual transfer at the metalinguistic level
Chapter 5
The Language of the Common Law
51 The Translatability of the Common Law
As we noted in section 412 of chapter 4 legal transplant in Hong Kong has
taken the forms of political imposition and legal translation the former as a result of
colonization and the latter after the recovery of sovereignty by China64 Wesley-Smith
(1993) gave a detailed account of how English law was imported to Hong Kong after
it became a British colony He noted
One of the first things to be done therefore was to introduce English law into Hong Kong At
one stroke was thus imported a comprehensive collection of rules principles standards and
concepts appropriate for the trading post Britain had established From 1846 to 1966 the
formula by which English law was received into Hong Kong applied all the laws of England
which existed on 5 April 1843 the day Hong Kong obtained a local legislature (p 33)
Despite the controversy over the applicability of the common law it was kept up to
date by constant legislative reception Wesley-Smith rightly pointed out which aspects
64 The Department of Justice explained why legal bilingualism had to be launched in Hong Kong as
follows
In keeping with the Basic Laws provisions on bilingualism all legislation in Hong Kong is enacted in
both Chinese and English and both versions are accorded equal status Thanks to the bilingual
legislation programme begun in 1989 authentic Chinese texts have been completed of all pre-existing
legislation which had been enacted in the English language only and Hong Kongs statute book is now
entirely bilingual ( httpwwwdojgovhkenglegalindexhtm accessed on September 2 2007)
THE LANGUAGE OF THE COMMON LAW 107
of English law were imported into Hong Kong ie the rules principles and concepts
which constitute the substantive contents of the legal culture of the common law as
described in chapter 3 As a matter of fact these rules principles and concepts of
English law had been imposed on the operating legal system in Hong Kong long
before the law was translated into Chinese65 The decision to translate the common
law into Chinese signified a yet deeper transplant of the common law into Chinese
culture this time by way of legal translation instead of political imposition The task
of translating the laws of Hong Kong into Chinese was completed in a timely manner
by May 1997 However the accomplishment of this mammoth task has not ended the
controversy over the translatability of the common law into Chinese In researching
the translation of the common law into French Nguessan (1995) realized that the
terms and concepts of the common law were specific to that system itself and asked
ldquoIf such is the case how is it possible to transfer the law from one language to another
if those two languages express the law of two different countriesrdquo (p iii) [] But as
we have pointed out in chapter 2 this is not the case with the translation of the
common law into Chinese This translation was carried out within the same common
law jurisdiction of Hong Kong and therefore the question of one language expressing
the law of two different jurisdictions simply did not arise The question with which
Hong Kong was and is faced is purely a question of translation namely ldquoIs it possible
to translate the law of one language into another If so howrdquo
65 As for the application of the common law to Hong Kong Wesley-Smith noted
In effect the cut-off date of 5 April 1843 applied in respect of statutes all Acts contained in the
English statute book on that day provided they were general and not purely local in nature and
were not suited to the circumstances of Hong Kong or of its inhabitants were automatically in
force in Hong Kong (1993 p 33)
THE LANGUAGE OF THE COMMON LAW 108
As far as the first question is concerned critics of the bilingual legislation in
Hong Kong were suspicious of the very possibility of translating the common law
especially its terminology into Chinese One common misconception is to regard
English as the only language suited to express the concepts of the common law and
thus reject the possibility of translating the English common law into Chinese Ujejski
(1989) subscribing to Whorfrsquos theory of linguistic relativity expressed his deep
concern about the future of English language in Hong Kong law He remarked
If as Whorff claimed language and thought are inextricably linked and if language including
legal language is indeed a reflection of a culturally based lsquoconceptual realityrsquo we may need
seriously to consider what effects cultural differences may have on the future of the Common
Law in Hong Kong and thus on the language of the law in Hong Kong (p 183)66
For Ujejski the crux of the issue lay in the ldquocultural-philosophical gaprdquo between the
English common law and the Chinese language67 It is true that the linguistic and
66 Contending that it would be impossible to translate the English Common Law into Chinese Ujejski
quoted Cuthbertrsquos following remarks to support his argument
The institution of law in Hong Kong combines a system of rules with a system of institutions
derived from England In the historical evolution of English law philosophical moral and
ethical percepts cannot be abstracted from linguistic structure cultural values and forms of
human behavior Its roots can be traced back to ancient Greece and writings of Plato and
Aristotle Concepts such as lsquotruthrsquo lsquomoralityrsquo lsquoresponsibilityrsquo and lsquocrimersquo are locked both
into precept and language But in 1997 this entire cultural world view will be changed
Although the technology of charters and joint agreements will attempt to operate
homeostatically between the two value systems (capitalist and socialist) the Chinese
population of Hong Kong is already lsquoreality-compromisedrsquo since its semantic and conceptual
vocabularies are rooted to Chinese tradition custom and beliefs It is therefore difficult to
envisage how the present legal system and with it the institutions it supports can possibly
remain in even a fragment of its original state (p 183) 67 Ujejski quoted Michael Thomas a former Attorney General of Hong Kong who expressed a similar
view
THE LANGUAGE OF THE COMMON LAW 109
cultural differences between English and Chinese pose great difficulties in translating
the English common law into Chinese However constraints in translation do not
amount to the untranslatability of the common law In refuting those who upheld the
untranslatability of the common law for reasons based mainly on ldquolinguistic
relativismrdquo which ldquoinsists on the impossibility of dissociating what was expressed in a
language (content) from how it was expressed in that language (form)rdquo Roebuck and
Sin (1993) argued
It cannot be denied that languages have semantic-syntactic gaps Language A has a word for
which Language B has no syntactically unanalysable equivalent hellip examples of
semantic-syntactic gaps show only that symmetry rarely exists between language hellip
Translationrsquos primary task is to convey the various types of meaning which are independent of
the conventionalized arbitrary features of human languages And exact translation as a
meaningful concept must be understood in that context and as a linguistic activity must
proceed under those constraints hellip Unlike poetry which often exploits the special phonological
morphological and syntactic features of a language to achieve aesthetic effects and is therefore
language-bound to some extent law as a social institution is not dependent on language in the
same way hellip It prescribes human behaviour hellip Human behaviour hellip can be described with
similarly sufficient precision in any language The behaviour prescribed and regulated by the
Common Law is no exception (pp 200-02)
The important point to note here is that the law prescribes and regulates human
behaviour in ways which can be described not only in English but also in any other
The difficulty [of translating English statutes into Chinese] lies in the linguistic and cultural
difference between English and Chinese It is a known fact that different cultural communities
organize their internal relationships in different ways This results in legal contexts that differ
both in conception and expression (p 184)
THE LANGUAGE OF THE COMMON LAW 110
language just as the rules of a particular game can be laid down in different languages
such that players relying on different language versions of the rules can play the same
game There is no a priori reason why Chinese cannot be used to express the legal
concepts of the common law Semantic equivalence is achievable in legal translation
as noted in section 223 of chapter 2 Aiming to achieve semantic equivalence the
legal translator should import the source legal culture into the target legal culture an
approach which requires linguistic and conceptual adjustments of the translating
language In the same manner Chinese as the translating language can be expanded to
include newly introduced cultural concepts of the common law
Wong (1999) also denounced as bigotry the view that English is the only
language capable of expressing concepts of the common law He points out that Latin
and French were the languages of court proceedings in England before English took
over the dominant position and that ldquothe reason for the spread of English is political
cultural or economic rather than linguisticrdquo (p 31) However what most troubled
Wong was Section 10C (1) of Chapter 1 of the Laws of Hong Kong which stipulates
as follows ldquoWhere an expression of the common law is used in the English language
text of an ordinance and an analogous expression is used in the Chinese language text
thereof the Ordinance shall be construed in accordance with the common law
meaning of that expressionrdquo (Sect 10C Cap1) Wong (1999) expressed his deep
suspicion of such a semantic interpretation of the translated laws in Hong Kong
Thus constricted the Chinese equivalents of common law expressions are mere symbols in the
most unsophisticated sense of those words They have no meaning of their own however
beautifully rendered they might seem and however much their creator thinks they resemble the
original It matters not one jot (p 31)
THE LANGUAGE OF THE COMMON LAW 111
Actually if this remark is true the same strictures could be applied to any ordinary
native speaker of English who has no training in and no knowledge of the common
law In his case as well the technical expressions he comes across are no more than
ldquomere symbols in the most unsophisticated sense of those wordsrdquo and mean nothing to
him at all In the same vein should we not perhaps blame those who create these
wordsmdashlaw drafters and judgesmdashfor conjuring up such meaningless symbols
Evidently Wong has missed the whole point While it is no doubt true that the
translatorrsquos task is to give a ldquobeautifulrdquo rendition of common law expressions and
provide the closest possible Chinese equivalents the legal meaning of these
equivalents can only be properly construed in the light of the entire semantic
referential system of the common law Secondly Wong is wrong in his explanation of
how language works The ldquomere symbolsrdquo of the Chinese equivalents of common law
expressions are by no means ldquoconstrictedrdquo Instead the Chinese equivalent of a
common law term is defined as the equivalent for its counterpart in English
To provide Chinese equivalents of common law terms is a vital step in
transplanting the common law into Chinese History tells us that whether it was the
Christian Bible or the Buddhist scriptures that were being translated the translator had
to adjust the Chinese language in such a way that foreign concepts could be
assimilated into its conceptual system As a result the translated text was invariably
incomprehensible at the initial stage of assimilation as Sin (1998) put it ldquohellipopaque to
the uninitiated eyesrdquo (p 138) But now the Chinese equivalents of these biblical or
Buddhist concepts have become part of the Chinese language and culture This is also
the case with the common law in Chinese To sum up the problem at issue here is
neither the translatability of the common law nor why it should be translated but how
common law Chinese could be developed with a view to transferring the legal culture
THE LANGUAGE OF THE COMMON LAW 112
of the common law into Chinese The whole case by no means ldquomatters not one jotrdquo
Instead it matters a lot We will further discuss the second question in the following
sections
52 Legal Terminology and Legal Concepts
As has been shown in the previous chapter transferring the legal culture of foreign
laws into China has plenty of precedent Legal concepts and legal principles of the foreign
laws have been imported into Chinese since the Qing Dynasty To transfer the culture of
the common law ie its legal concepts and legal principles into Chinese is thus by no
means a novel venture As we know legal concepts of the common law are specific to
that system and are expressed by means of in its specific legal terminology In the case of
Hong Kong when the Official Languages Ordinance was amended in 1987 to stipulate
that the laws of Hong Kong be available in both Chinese and English the translation of
the common law terminology posed a serious challenge In the following sections we will
look at the specific features of common law English in which legal concepts and legal
principles are embodied and examine the specific problems in translating the Common
Law into Chinese from the aspects of the legal lexicon legislation and case law We will
first investigate the theoretical aspects of the terminology and the relationship between the
common law terminology and the legal concepts they stand for
THE LANGUAGE OF THE COMMON LAW 113
A study of terminology68 calls for an understanding of the form-meaning relationship
of the terms since it forms the basis of our inquiry into the relation between legal concepts
and legal terminology69 Since a word is a lexical unit constituting a term the study of
words constitutes the basis for the study of legal terms According to Saussure the
linguistic sign has two sidesmdashthe signal (the word form) and the significance (the concept)
while the word as a linguistic sign is composed of the word form (the signifier) and the
word meaning (the signified) (1986)70 An essential concept can be expressed and
lexicalized as (and in the form of) a noun a verb or a descriptive adjective In other words
a noun verb and descriptive adjective can signify the same essential concept71 That
concepts and word forms are not equivalent is shown by the fact that one word can have
more than one meaning in the same language72 Lexical relations could thus be illustrated
68 In search of a theory of terminology Sager (1990) defined terminology
hellipas the study of and the field of activity concerned with the collection description processing
and presentation of terms ie lexical items belonging to specialized areas of usage of one or more
languageshellip(p2) 69 A word is typically a single lexical unit while a term could be composed of a single word or a set of
words Terminologies are the technical or special terms used in business art science or special subject
Thus terms used in the language of the law consist of general terms and terms used pertaining to the
special context of the law which can be regarded as its terminology 70 ``Word form will be used here to refer to the physical utterance or inscription and ``word meaning
to refer to the lexicalized concept that a form can be used to express 71 We find that each essential concept when examined carefully has a root expression as a noun a verb
or a descriptive adjective The expression of a concept begins in one of these three word classes
However by affixing appropriate fragments each of these three word classes can (usually) be
transformed into another Conversely by removing these affixes a root expression can be revealed
Thus the underlying essential concept can be said to be independent of any specific word class
Alternatively we could say that all three word classes (noun verb and adjective) provide the same
expression of an essential concept 72 Each meaning of the word represents a different concept Such a word is called polysemy which
means that a word with (at least) two meanings yet sharing a lexical form According to Leech
ldquoSynonymy and polysemy are relation between form and meaning (a) Synonymy more than one form
having the same meaning (b) polysemy the same form having more than one meaningrdquo (1981 p94)
THE LANGUAGE OF THE COMMON LAW 114
according to the analysis of the different meanings of one word which Leech (1981)
defined as ldquoa process of breaking down the sense of a word into its minimal componentsrdquo
(p 89)73 In this regard componential analysis is very useful in understanding the relation
between concepts and words74 The problems of the translation of terminology hinge on
conceptual equivalence since there is not always a correspondence between pairs of terms
in the source and target languages The layperson usually believes that sound knowledge
of the source and target languages and a good dictionary are sufficient for translating a
term in question but even if this were wholly true it would be is in no way sufficient in
technical translating where the translation process is concerned with achieving conceptual
equivalence between two terms75 The degree of conceptual equivalence which exists is a
function of the extent to which the intentions of two or more concepts overlap Typical
degrees of equivalence include 73 Leech said
The meanings of the individual items can then be expressed by combinations of these (semantic)
features
man +HUMAN +ADULT+ MALE woman +HUMAN +ADULT - MALE
boy +HUMAN -ADULT + MALE girl +HUMAN ndashADULT- MALE
These formulae are called the COMPONENTIAL DEFINITIONS of the items concerned they
can be regarded in fact as formalized dictionary definitions The dimensions of meaning
themselves will be termed semantic oppositions (1981 pp89-90) 74 Nida (1975) supplemented the approach of componential analysis proposing that there are three
fundamental classes of components They are
(1) the common components ie those features which are shared by all the meanings being
compared and which accordingly constitute the basis for bringing such meanings together (2)
the diagnostic components ie those features which distinguish the meanings of any set and (3)
the supplementary components ie those additional features often connotative which are
significant in describing all the aspects of a meaning but which may not be strictly necessary in
contrasting a particular set of meanings (p182) 75 Since there used to be doubt that a true translation equivalence is possible because of the difference
of meaning of corresponding words in the two languages while in practice translation equivalence does
exist in the sense that translators in their daily operation select term Y in the TL (target language) as the
translation of term X in the SL (source language) and so one could say that X and Y are translation
equivalents
THE LANGUAGE OF THE COMMON LAW 115
(1) Complete equivalence a term in SL whose concept is the same as the term in TL The
two terms are thus judged to be equivalent
(2) Partial equivalence this can be further divided into two types One is narrower
equivalence where the concept of the term in TL includes fewer characteristics than
that of the term in SL against which it is being measured The other is broader
equivalence where the concept of the term in TL includes more characteristics than
that of the term in SL against which it is being measured
LanguageLanguage
Areaof Shared
Concept
Source Target
Figure 52 Different conceptual divisions across languages
(3) Non-equivalence the term in the SL whose concept does not exist in the TL
The foregoing discussion of conceptual equivalence is directly relevant to the
translation of terminology In cases when one linguistic form in the original language
represents several different concepts which are lexicalized in different linguistic forms in
the translating language such concepts should be understood according to the original
referential system In pointing out the significance of the referential system of the
terminology Sager (1990) remarked
THE LANGUAGE OF THE COMMON LAW 116
A theory of terminology is therefore primarily concerned with a referential system which relates
knowledge structures to lexical structure and defines the constituent elements of each type of
structure (p 14)
For Sager a theory of terminology inevitably involves a theory of ldquoconceptrdquo and
ldquoreferencerdquo as the concept conveyed by an item of terminology can only be construed in
its reference Based on the above definition the common law terminology which is
legally and culturally specific to the common law should be appropriately regarded as a
semantic system ie scientific expression of the system of common law concepts
Accordingly the study of common law terminology is the study of the relationship of the
linguistic signs and their concepts with special reference to common law culture An
investigation into the translation of the common law terminology into Chinese in terms of
cultural transfer will ultimately focus on the translated linguistic signs and their semantic
referential system
We can thus justifiably say that common law terminology is the lexicalized
expression of the concepts built into the common law As Carter (1994) points out
Basic concepts hellip build up in law as cases accumulate hellip they [concepts] do exist in law Often they
turn out to be sufficiently fixed and stable so that lawyers can engineer from them secure plans for their
clientsrdquo (pp 142-143)
This illustrates how significant the existence of legal concepts is in the common law and
how decisive the use of them is for lawyers In the common law legal concepts are
lexicalized or expressed by legal terms The translator has to identify the concept and the
referent that the word in the source language represents But if the translator fails to
THE LANGUAGE OF THE COMMON LAW 117
distinguish all the different concepts and referents that the word in the source language
can stand for she may end up selecting a word in the target language that represents the
wrong concept and referent
Therefore one of the difficulties that the translator may encounter in translating legal
terms is the problem of non-equivalence In some cases the legal concepts that are
expressed by the legal terms do not exist in Chinese There are no words in Chinese to
express some of the most elementary notions of the common law The terms the common
law and equity are only two of the examples There is no system of the common law
and equity in the Chinese legal system (neither in the PRC nor in Taiwan) In addition
many types of institutions proper to the common law have no direct counterparts in China
eg ldquoMagistraterdquo ldquoLands Tribunalrdquo and many others) In other cases partial-equivalent
terms also pose difficulties to the legal translator since one legal term can have both a
specific legal meaning and an ordinary meaning at the same time eg the term
ldquoconsiderationrdquo An equivalent for the ordinary meaning which is shared in Chinese can
be found but the specific legal meaning does not exist in Chinese Could such a Chinese
equivalent if selected as the translation convey the same legal meaning in the common
law For example transferring the expression used for seemingly similar institutions eg
ldquohigh courtrdquo risks blurring the differences between these institutions The common law
term high court could be translated into Chinese as gaodeng fayuan (高等法院)
However this very term as used in the PRC refers to a different legal institution operating
under a socialist legal system Therefore the Chinese equivalent gaodeng fayuan (高等法
院) for the common law term ldquohigh courtrdquo certainly does not mean the same as the
Chinese term gaodeng fayuan (高等法院) as it is already used in the PRC Gaodeng
fayuan (高等法院) as the translation for the common law term can only be properly
construed with reference to the common law system
THE LANGUAGE OF THE COMMON LAW 118
To propose appropriate translation strategies and techniques in translating common
law terms into Chinese requires a clear understanding of the vocabulary used in the
common law in the first place The vocabulary of the common law is multifarious
including as it does terms referring to legal institutions terms referring to legal personnel
terms employed in different branches of law and of course words used in everyday life
The question is how best we should categorize them While different criteria are possible
a classification in line with the relationship between the linguistic form and the legal
concept could be of great direct help and could also hold relevance for further
investigation of translation equivalence in general The classification of the common law
vocabulary discussed in this section will thus be based on the analysis of the term and
concept relation made previously76
(1) Technical terms also called terms of art these are terms used exclusively in the legal
sphere and have no application in ordinary language and they make up a significant
part of common law terminology As terms of art their technical meaning needs
scrutinizing when being translated as they are unique to the common law and have no
equivalent in Chinese It should be noted that most common law terms of Latin or
French origin belong to this category They can be divided into two sub-categories
(a) Technical terms that represent concepts constructing the body of the laws77
(b) Technical terms that represent concepts relating to the judicial mechanism78
76 Alcaraz and Hughes (2002) also divide legal vocabulary into three categories namely ldquopurely
technical vocabularyrdquo ldquosemi-technical vocabularyrdquo and ldquoeveryday vocabularyrdquo (pp154-65) 77 Selected examples include demurrer estoppel fee simple fee tail laches mens rea reprieve
trespass overrule trover and waiver
THE LANGUAGE OF THE COMMON LAW 119
Semi-technical terms these are common English terms which when used in a legal
context acquire a specific legal meaning Such terms are thus polysemous and more
difficult to identify As proposed by Sin (1998) they can be further divided into three
linguistic sub-categories
(a) Terms where the legal meaning is fully shared with the core meaning79 Core
meaning may be used to illuminate the meaning of other senses and all other
senses may be derived from this core meaning combined with contextual
information such as abandonment (fangqi 放棄) attempt (qitu 企圖) confession
(gongren 供認) defence (mianze bianhu免責辯護 kangbian 抗辯) negligence
(shuhu疏忽) public place (gongzhong defang 公眾地方 gongzhong changsuo
公眾場所)
(b) Terms where part of the legal meaning overlaps with the core meaning such as
consideration (daijia 代價 ) discharge (shifang 釋放 ) malice (eyi 惡意 )
representation (shenshu shu 申述書 chengshu 陳述) remainder (shengyu quanyi
剩餘權益)
(c) Terms where the legal meaning deviates completely from its core meaning eg
personal representative (yichan daili ren 遺產代理人) warranty (ciyao tiaojian
次要條件)
78 Selected examples include affidavit certiorari defendant fieri facias habeas corpus mandamus
metes and bounds plaintiff serve proceedings and voire dire 79 By core meaning we refer to the central or most fundamental concept that links the principal senses
of a word to its various other senses
THE LANGUAGE OF THE COMMON LAW 120
(3) Everyday vocabulary terms which are common or ordinary in English They are used
both in special context and in everyday common language and have no specialized
meaning in the common law
Historically and politically the language of the laws of Hong Kong was exclusively
English The Chinese legal terms employed in the PRC legal system and Taiwanrsquos
German-based civil legal system were distinct from those in common law English and as
a result no equivalent legal terms existed in Chinese To achieve conceptual equivalence
in translating terminology the translator has to generate a term in the target language
which can express the same concept as the term in the source language When
terminological concepts are shared in the source and target language the translatorrsquos job
is to find the conceptual equivalent But where one concept in the source language does
not exist in the target language the translator encounters a greater problemmdasha new term
in the target language has to be created which is capable of expressing the same concept
as the original term in the source language
53 The Language of the Legislative Texts and Legal Bilingualism
In the common law legal culture the notion of statutes as the primary source of law
is a recent development whereby an identifiable and sovereign legislature makes all the
rules by which disputes are resolved Making law by legislation is already an
indispensable part of the common law system as noted by Hiltunen (1990) ldquoNowadays
of course judicial principles are laid down through parliamentary legislation in many
areas where there is no tradition in the common lawrdquo (p 16) Section 4(1) of the Official
Languages Ordinance (Cap 5) in Hong Kong stipulates that that all ordinances shall
THE LANGUAGE OF THE COMMON LAW 121
subject to certain exceptions be enacted and published in both official languages ie
Chinese and English The statutory law of Hong Kong before 1997 is derived from the
common law legislation Most of the legislation remained intact after 1997 with little
being repealed or revised The official website of the Department of Justice of Hong
KongmdashBLISmdash is a comprehensive database for updated bilingual laws information and
most of it ldquocontains the statutory Laws of Hong Kong and selected constitutional
documentsrdquo80
For the legislative translator gaining a clear understanding of the language of and
the legal culture embedded in the legislation is a prerequisite to maintaining the legal
meaning intact It is argued that the language of statutes is one of the most complex forms
of language perhaps the most complex Some of these complexities result from the way
in which the law developed historically (Mellinkoff 1963) and some were no doubt due
to bad drafting Yet legislative language as a whole has won a defence from some
linguists
Legislative discourse cannot be said to be purely or wilfully esoteric or archaic or unintelligible as
its critics often say It constitutes a rational functional stylemdashmore accurately it is rational
because it is functional (Maley 1987 p 46)
The lexico-grammatical choices in legislative writing come from the goal of legislation to
provide certainty This requires that the language of legal rules should be precise and
explicit However in reality it is impossible for a legal rule to be so precisely framed that
80 BLIS website httpwwwlegislationgovhkindexhtm accessed on April 16 2008
THE LANGUAGE OF THE COMMON LAW 122
it encompasses all possibilities Therefore against the goal of certainty must be balanced
the goal of flexibility This is achieved through the use of words of general classification
such as place building or vehicle where class membership is open and through words
that allow for a degree of interpretation such as wilful or reasonable A balance between
certainty and flexibility can also be achieved through the interweaving of numerous
qualifications with the main provision This leads to very long sentences that cannot
easily be replaced by shorter sentences at least not without compensating in another
fashion (Bhatia 1994) Another characteristic of statutes noted by linguists is their
relationship with other related statutes ie their intertextuality Intertextuality in statutes
can be realized in a number of different ways through textual mapping devices for
example ldquoin pursuance of section 111 of this Actrdquo (Bhatia 1987) and through complex
prepositions such as ldquoby virtue ofrdquo and ldquoin accordance withrdquo (Swales 1982) They allow
the draftsperson to reduce the amount of information in an already extremely dense text
and signal to the reader where this information can be found In addition they explicitly
locate a statute in the context of preceding legislation and remind the reader of the wider
context in which the statute has to be read
Two other distinct features of legislative language must be noted its normative
nature and its instrumental purpose Legislation is made to confer rights define duties
and stipulate prohibitions purporting to be prescriptive directive and mandatory
Each legislation may contain one or more legal rules or legal norms delivering the
above functions Thus legal rules create legal relationship and identify in what
situation the legal relationship occur Vandevelde (1996) explains how legal
relationship is created in legislative language
THE LANGUAGE OF THE COMMON LAW 123
In general rules of law bear the form lsquoif x then yrsquo meaning that if these facts occur then this
legal right or duties arises Rules of law thus have a factual predicate and a legal consequence (p
19)
Therefore statutes themselves are the rules of law bringing about certain rights and
duties In terms of the basic elements of legal rules Šarčević (1997) analyzed the
famous English barrister George Coodersquos contention that ldquoall legal rules contain the
following four elements legal subject legal action case and conditionsrdquo (p 136)
She agreed with previous criticism of Coodersquos definition of the elements of legal rules
as too rigid since the two elements of case and condition could be combined into a
fact-situation while the other two elements ldquoconstitute the so-called statement of lawrdquo
but noted that ldquoit is significant that he singled out the legal action as the most
important element of a legal rulerdquo (p137) Šarčević (1997) subscribed to the more
recent development proposed by Kelsen and his followers who analyzed the
ldquoprescriptive and descriptive elements of legal rules or normsrdquo and Weinbergerrsquos
assertion that legal rules comprise ldquodescriptive fact-situation (propositional content)
and a prescriptive statement of law (normative content)rdquo (p 137) Thus the legal
translator must identify the normative content of the legislative language The
instrumental purpose of the legislative language is based on the underlying policy that
the legislature intends to promulgate Most statutes address matters of public policy
The public policies that the legislature intends to promote are considered as the
underlying policies on the basis of which rules of law are built The underlying
policies are the intent of the lawmakersmdashwhat kind of rights and duties they purport
to create and what remedies they decide to offer Underlying policy is of great
significance to legal reasoning It was the key element helping to understand the
statutes detect the intent of the legislature and analyze the application of the statutory
THE LANGUAGE OF THE COMMON LAW 124
rules As Bhatia (1983) put it legislation was the law ldquohellipto do justice to the source
rather than to facilitate comprehension of the unfolding text by any particular
readershiprdquo(p 9)
Consequently law is viewed as a normative social practice while the language
of the law being a specialized language written to regulate administer or mediate
the citizen of certain society is declarative or imperative in nature Approaching the
normative nature of the legal language from the pragmatic dimension the speech act
theory inspired by JL Austin and further developed by Searle is appropriate to
explain how the language of law is supposed to guide human behaviour and how it
can give rise to reasons for action The legal speech act is an illocutionary act usually
marked by a performative verb
Hence I shall argue that a legislative textmdasha statutemdashis a rule-enacting document The text as a
whole is considered a speech act with the illocutionary force of enactment this emerges from an
analysis of the language of what is known as the enacting formula of a statute which is an
explicit performative The constituent parts of a statute hellip may be hellip speech acts with the
illocutionary force of ordering permitting or prohibiting as indicated by the modal verb in the
main clause of the sentence (Kurzon 1983 p 51)
The speech act of ordering is typically performed by the use of the modal ldquoshallrdquo
which shows ldquohellip the obligatory consequence of a legal decision and [is] not
simply hellip a marker of future tense which is its normal functionrdquo (Crystal and Davy
1969 pp 206-7) The use of the modal ldquomayrdquo has the illocutionary force of
permission while ldquoshall notrdquo expresses the illocutionary force of prohibition In
considering the legal speech act Šarčević (1997) observed
THE LANGUAGE OF THE COMMON LAW 125
Translation problems arise because legal speech acts cannot be translated literally thus
preventing the translator from simply using the same form of the verb in the target text hellip
Pigeon repeatedly warned hellip against using the future tense in French to translate the English
imperative lsquoshallrsquohellip( p 137)
Bilingual legislation in Hong Kong at present means the enactment of new laws
in two languages namely English and Chinese since the translation into Chinese of
ordinances previously enacted in English has already been accomplished The present
drafting practice in Hong Kong already includes ldquoa translation process since the
English text is normally drafted first and then rendered into Chineserdquo (Lee 1996
p156) In the bilingual legislation context of Hong Kong the translator as both
message receiver and sender is required to construe the English legislation accurately
in such a way that Chinese version is as authentic as the English one81 This means
that the Chinese translation of the English common law must bear the same legal
meaning and have the same legal effect considering both the requirements and the
goals of the translation82 There is a basic presumption for this goalmdashthe presumption
81 ldquoSection 4(1) of the Official Languages Ordinance (Cap 5) now provides that all ordinances shall
subject to certain exceptions be enacted and published in both official languages The Law Drafting
Division of the Department of Justice (formerly known as the Legal Department or the Attorney
Generals Chambers) is responsible for preparing the two language texts of all ordinances and
subsidiary legislation introduced by the Government The first bilingual ordinance was the Securities
and Futures Commission Ordinance (Cap 24) enacted in April 1989rdquo (BLIS website A paper
Discussing Cases Where the Two Language Texts of an Enactment are Alleged to Be Different) 82 ldquoSection 10B (1) states the fundamental principle of equality between the two language versions of
our laws It provides that both language texts of an ordinance shall be equally authentic and the
ordinance shall be construed accordingly This means the Chinese text is neither subordinate to nor a
mere translation of its English counterpart (BLIS website A paper Discussing Cases Where the Two
Language Texts of an Enactment are Alleged to Be Different provided by the Law Drafting Division of
the Department of Justice)
THE LANGUAGE OF THE COMMON LAW 126
of same meaning in bilingual texts83 As elucidated by the Law Drafting Department
the very aim of legal bilingualism is ldquoto introduce common law concepts to the
Chinese language hellip Reference must be made to the meaning as it is found in the
common law The common law must be taken as the semantic reference schemerdquo84
Therefore two legal texts are stipulated to have the same meaning and share the same
system of reference ie the common law
The problems encountered by the legal translator in translating legislation
include two aspects namely cultural and linguistic The linguistic problems in
translating the English into Chinese mainly include (1) Complex and lengthy
sentences (2) frequent use of the passive voice Researches on the language of the
law are numerous and relatively comprehensive From both Mellinkoff (1963) and
Crystal amp Davyacutes (1969) attempts at systematization in the 60s up to the modern
studies carried out by Bhatia (1983 1993) on legislative texts by Kurzon (1984) on
cohesive structures and in Spain by Alcaraz amp Hughes (2002) on the peculiarities of
the English legal structure and its language among others the emphasis has been
increasingly placed on the need to define and describe the legal discourse in its own
context Therefore far from considering the legal text solely from its grammatical and
semantic point of view studies of legal discourse exploit the full range of linguistic
theory and are no doubt also influenced by the pragmatic flavour of other previous
multidisciplinary analyses Bhatia (1983 1987 1993) paved the way for the practical
83 ldquoSection 10B (2) of Cap 1 presumes the provisions of a statute to have the same meaning in each
authentic language text The two texts are taken to communicate an equivalent message in their own
fashion They are but two expressions of the same intent and together constitute one law embodying a
single meaning Words and expressions in one language should be deemed to bear the same legal effect
as their counterparts in the other language of the same legislationrdquo Ibid 84 February 1999 Legal Practice Law Drafting The Common Law and the Chinese Language
THE LANGUAGE OF THE COMMON LAW 127
application of genre theory by suggesting a comprehensive framework for analysing
non-literary genresmdashespecially LSP texts His studies of legislative texts examined in
detail their linguistic features in terms of preparatory qualifications cases and
conditions in an attempt to fill the gap caused by inadequate attention to training in
legal language in legal education system Bhatiarsquos work has shed considerable light on
the writing preferences of legal drafters Following Hallidayrsquos functional approach
Maley (1994) also researched legislative discourse by examining generic structure and
legal performatives He stressed the ways in which mandatory permissive or
discretionary elements in legislation determine the use of performative or operative
verbs (pp 20-21)
Let us look at the problem from the viewpoint of legislative drafting A rule of
law regulates behaviour in society It must be clearly formulated categorically stated
and accessible in terms of form The underlying logical structure of a rule of law and
its textual formulation are not always identical so recipients often have to construe
the relation between logical structure and the text Most importantly a rule of law
always exists as a logical proposition even if this not set forth formally in a statute
However when formally recorded one rule may be embodied in several texts
Although its textual formulation may sometimes be unclear or unambiguous the
logical structure of a rule of law always remains clear since the logical structure of the
legal rule determines the arrangement of its textual elements The so-called legislative
sentence is a sentence designed to confer rights or powers or to impose duties and can
also be used for prohibitions A mastery of the legislative sentence is useful for all
legal translators Legal rules expressed by the legislative sentence have a consistent
framework for their component parts divisions sections subsections and other
segments These linguistic conventions which may pose certain problems for the
THE LANGUAGE OF THE COMMON LAW 128
legal translator actually provide a framework for the legislative drafter The legal
translator should know how the rule was developed about the underlying intentions of
the drafter and about how the rule-maker wants the rule interpreted85 This may place
a heavy burden on the legal translator and it is also a burden that the legal translator
has to remove from othersrsquo shoulders Although a plain writing style was not a new
style for rules written in England ldquomost of the legal documents follow the basic rules
that were written 150 years ago by an English barrister by the name of George Cooderdquo
(Watson-Brown 1998 p 23) Coode developed a model legislative sentence which
has been adopted by drafters in most Commonwealth countries and in some American
states Coodersquos model has also influenced the drafting of clauses in legal documents
especially contracts86 Although Coodersquos analysis has been criticized by some legal 85 Generally there are three well-established interpretation rules supposedly to guide lawyers and judges
the literal rule the golden (or purposive) rule and the mischief rule The literal rule simply means
giving the text its ordinary everyday meaning and applying it exactly as written This rule came into
prominence in the 18th century The literal rule was founded on the assumption that words chosen by
Parliament in the Act (or any legislature in any law) clearly showed their intentions in passing that Act
(Holland amp Webb 1991 p 66) What the literalist would be looking for is the primary or most obvious
meaning of the word not any general meaning or secondary meaning (Ibid pp 166-167) The literal
rule is admittedly a workable criterion for statutory interpretation The golden rule meant that words
should be construed in their ordinary sense unless that would lead to absurdity or inconsistency in
which case the senses of the words might be modified to avoid that absurdity and inconsistency (Cross
1987 p 14) The mischief rule seeks to discover the real intention of the legislature and represents a
somewhat more purposive approach to interpretation which sets out the job of the judge as to determine
what defect in the common Law the statute set out to remedy and apply what is ascertained to be the
intention of parliament There are other three rules which guide the statutory interpretation the rule of
ejusdem generis (lsquoof the same kindrsquo) the rule of noscitur a sociis (lsquoa thing is known by its associatesrsquo
[also known as the rule of rank] and the rule of expressio unius est exclusio alterius (lsquothe mention of
one thing is the exclusion of anotherrsquo) (Cross 1987 p 136) 86 According to Coode most law is designed to change the position of a person or a class of persons by
conferring a right privilege or power or by imposing a duty To carry out these functions effectively a
legislative sentence should contain four elements the legal subject which is a description of the person
or class of persons who is given a power or duty or whose legal position is otherwise affected by the
THE LANGUAGE OF THE COMMON LAW 129
theorists as too rigid it remains a good starting place because it suggests the kind of
analysis drafters should attempt before starting to draft87 The complex and lengthy
sentences of the model were drafted expressly for the purpose of formulating legal
rules and enabling a drafting convention to be followed Since legal texts (statues
treaties contracts) defend the rights of a person or group or impose obligations their
drafters must pay ldquoscrupulous attention to making sure that the legal text is hermetic
and unambiguousrdquo (Taylor 1998 p 130) Admittedly the efforts to achieve a
hermetic and unambiguous text often result in a text that can be ldquoat times seemingly
impenetrable syntactically complex full of apparent redundancyrdquo (p131)
Another problem that the legal translator encounters is the use of passive
structures When using the passive voice a statement acquires an air of mystery as the
actor remains unknown until after the action is stated An omission of the actor
renders the statement even more mysteriousrdquo (p 23) Such an air of mystery is
operation of the law the legal action which is a description of the legal action or legally significant
impact that will result from the operation of the law and the case which is a description of the facts that
must have occurred the circumstances that must be present and the conditions that must be met for the
law to operate In the classic legislative sentence these three elements are arranged in the following
order
(1) the case is set out first in one or more subordinate clauses introduced by ldquoifrdquo ldquowhererdquo or
ldquowhenrdquo
(2) next comes the legal subject The legal subject is also the grammatical subject of the main
clause The legislative sentence ends with the legal actionmdasha description of what the legal subject may do or is
entitled to claim or must do or must not do 87 Admirable as it is Coodersquos model has certain problems One is that it relies on a left-branching
sentence structure Another problem is that it encourages drafters to equate a legal provision with a
self-contained legal unit on the one hand (the section article or clause) and with a self-contained single
grammatical unit on the other (the sentence) The final problem is that Coodersquos analysis of legal action
the third element of the legislative sentence is narrowly focused on rights duties and powers It
ignores definitions and other types of declarations
THE LANGUAGE OF THE COMMON LAW 130
preferred by the legal drafters since the passive voice conveys the kind of objectivity
and lack of bias that legal rules are supposed to exhibit Consequently the legal
translator may find this particular linguistic problem hard to solve since legal English
creates linguistic patterns that are particularly difficult to translate directly into
Chinese However it is possible to write legal rules as Watson-Brown suggests ldquothat
will reflect (upon translation) the same meaning without tortuous Chineserdquo (1998 p
23)88 The legal translator does not necessarily follow the sentence sequence of the
English legislative text Instead he can use sentence structures idiomatic to Chinese
as long as the original meaning can be delivered
As can be seen from the discussion above past research on legal translation was
under the influence of the linguistic approach to legal translation mainly concerned
with the linguistic features of legislative language Inspired by applied linguistics
Alcaraz amp Hughes (2002) put forward the idea of ldquoindirectrdquo legal translation which
aims ldquoto produce on the target reader an equivalent effect to that produced by the
source textrdquo (p 180) Instead of explaining how the equivalent effect could be
produced on the target reader they mainly discussed the linguistic features of
legislation and the linguistic problems confronting the legal translator in the aspects of
ldquomodifiersrdquo ldquoadverbsrdquo ldquosyntaxrdquo ldquothematization and ldquotextual coherencerdquo To deal
with such problems they suggested three techniques ie transposition expansion and
modulation (pp 186-192) However they seemed to have ignored a more significant
88 Waston-Brown (1998) also proposed some solutions to the English legal drafter in terms of avoiding
pitfalls in bilingual legislation
(3) Use the active voice the present tense and indicative mood
(4) Use an intuitive syntax leaving the verbal qualifications until the end of the sentence
(5) Use short sentences by deleting lsquoandrsquo when it joins two principal clauses and
(6) Learn Chinese syntax and attempt to match it with the English text (p23)
THE LANGUAGE OF THE COMMON LAW 131
problem besetting the legal translator namely the cultural problemŠarčevićrsquos (1997)
contention that legal translation is not linguistic transcoding did not prevent her from
approaching legal translation both from a linguistic and a cultural perspective She
studied syntactic features of the legislative text and noted that ldquothere is essentially one
basic underlying thought pattern hellip the basic logical structure of legal rules is
expressed by the formula if P then Qhelliprdquo basing her analysis on Coode (p 162) She
also discussed other stylistic features of legislation such as the use of negation and the
impersonal Šarčevićdid not find herself totally constrained by the linguistically
prescriptive aura of legal translation She suggested in fact that legal translators could
be creative in translation She realized that a ldquotranslatorrsquos greatest challenge when
translating the fact-situation of a legal rule is to find suitable ways of compensating
for conceptual incongruencyrdquo (p 149) She exemplified this conceptual incongruency
by citing an example from the Canadianrsquos experience of bilingual legislation In this
example the selection of the common law term ldquowilful conductrdquo as the equivalent for
dol in French caused confusion since the term ldquowilful conductrdquo ldquoincludes not only
acts performed with intention but also acts performed carelessly without regard to the
consequencesrdquo (p 150) Instead of providing a solution for the problem however she
merely commented that the use of descriptive paraphrase by Canadarsquos legal translators
was not a good way to overcome conceptual incongruency (p 151)
The researcherrsquos preoccupation with the linguistic problems of legal translation
may be justified if we view translation as a pure process of linguistic transcoding
However linguistics alone cannot help us to see the whole picture Roebuck and Sin
(1993) rightly pointed out
THE LANGUAGE OF THE COMMON LAW 132
The existence of semantic gaps only proves the truism that different languages have different
ways of organizing the semantic fields of their basic vocabularies Although there are hardly
one-to-one correspondences between them a simple predicate in one language can almost be
mapped onto several correlative predicates in another hellip Likewise the existence of syntactic
gaps only show that different languages have different rules for generating acceptable formal
structures which are simply habitual ways of ordering phrasal and sentential components hellip
Accordingly examples of semantic-syntactic gaps show only that symmetry rarely exists
between languages hellip Translation as a linguistic activity for facilitating communication
between different language communities must take that linguistic fact as its starting point but it
decides nothing Translationrsquos primary task is to convey the various types of meaning which are
independent of the conventionalized arbitrary features of human languages And exact
translation as a meaningful concept must be understood in that context and as a linguistic
activity must proceed under those constraints (pp 200-201)
Thus Linguistic problems are not as difficult as the theorists reckoned them to be The
translatorrsquos greater challenge is the cultural problems to be faced in the process of
translation of legislation (or bilingual legislation) as Sin (1992) pointed out
The creation of a Chinese Common Law vocabulary for the rewriting of the Common Law in
Chinese will signify a large-scale assimilation of the entire English legal tradition into Chinese
culture (p 98)
The construction of every legislative rule was a process of conceptualization and the
legal drafter ldquowill usually draft from a precedentrdquo as Watson-Brown observes (1998
p23) To summarize the aim of bilingual legislation is to rewrite the common law in
THE LANGUAGE OF THE COMMON LAW 133
Chinese and the two parallel legal texts namely English and Chinese share the same
system of reference ie the common law
54 Case Law Languagemdashthe Language of Judges
In the common law the notion of statutes as the primary source of law is a
recent development and beneath the burgeoning corpus of statues of the past years lie
the bulk of the common law the collection of judgesrsquo judgments that makes all the
rules by which disputes are resolved Judgments are law in action an abstract legal
rule is applied to a set of facts to solve a concrete problem and the solution is justified
Judges actually play an important and integral part in the common law system as it
has evolved In the common law system a judge is first called upon to find the law
next to interpret it then to articulate it and finally to apply it to the facts and the
situation presented in the courtroom It is the first two steps to find the law (with the
help of counsel) and to interpret it which come closest to the business of actually
making law Although much of the primary onus for the making of rules now lies on
the legislature it is still acknowledged that the common law system has historically
preferred to make law by adjudication than by legislation Consequently judge-made
law still plays and will play a significant part in the common law
In the case of Hong Kong where the law is built upon the common law judicial
precedents thus carry the same legal weight as legislation The legal rules and
principles that judges use to resolve present disputes will be applied to similar
disputes in the future As judicial precedents which are all reported in English are the
bases for the interpretation and application of statutes in the common law system it
THE LANGUAGE OF THE COMMON LAW 134
will be difficult for legal practitioners to cite authorities in bilingual judicial
proceedings if there are no Chinese supporting materials for the respective ordinances
Besides as a judgment carries legal weight the translated version should be written in
precise language that captures the exact legal meaning of the original Translation of
binding precedents is therefore no less important than the translation of statutes
However in Hong Kong only a number of selected judgments have been translated
into Chinese The following reason was provided by the Department of Justice
(2004)89
The principles of the Common Law are to be found in the judgments of the courts both in Hong
Kong and in other Common Law jurisdictions around the world The language in which those
judgments have been delivered over the years is almost exclusively English There are hundreds
of thousands of reported cases which form the basis of the Common Law and it would
obviously be impractical to attempt to translate these into Chinese While in future there is likely
to be an increasing number of judgments in Hong Kong delivered in Chinese English will
continue to be the only medium in which the majority of judgments from overseas is reported
Given the above-mentioned constraint there is no denying that translating English
judgments into Chinese is of great significance and we must now explore the
language of the judgments and the difficulties encountered in the translation process
To solve the problem of cultural transfer in translating common law judgments
into Chinese requires the legal translator to fully understand the language of the
judgments in the first place Judgments can be found in law reports These serve as the
89 The passage is quoted from the Department of Justice website Information based on the
Departmental publication Legal System in Hong Kong printed in 2004
THE LANGUAGE OF THE COMMON LAW 135
written record of the explanation that judges give of their reasoning and they enable
ready access to previous judgments90 Generally judgment as a form of law is
formal and authoritative The common law judge writes opinions as a narrator of the
law91 The prestige he enjoys in his professional milieu allows him to fully and openly
assert his own interpretation of the law and to present it in through argumentation
Consequently the decision-giving process involves two intertwined process namely
the interpretation of the legal rules that are being applied to the specific case and
factual situation and the argumentation supporting why a decision is made in one way
rather than another Although each judgment will to some extent reflect the individual
styles of the judge arriving at it it will always stand on these twin pillars of
argumentation and interpretation92 These modes in turn can shape the distinctive
features of the language of judgments93
90 A judgment can be divided into four components The first component is a brief description of the
important points in a particular case The second component is an introduction It gives the readers a
general idea of the case The third component is a list of cases referred to in the judgment The fourth
and the most important component is the main body of the judgment It is in this part that the opinions
of the judges are delivered 91 The main body of the judgments has two parts ratio decidendi and obiter dictum As the rationale of
particular judgment ratio decidendi states the underlying principle of law and represents the logical
basis of judicial decision Unlike obiter dictum which is the remark or observation made by a judge
while issuing a ruling ratio decidendi has binding force 92 After examining some technical and semi-technical legal terms that judges frequently use in giving
their decisions Alcaraz amp Hughes (2002) observed that ldquoin keeping with the British tradition of
strongly reasoned judicial opinion judgments are often couched in a style that is flavoured with the
personality of their makerrdquo (p 114) In addition to their role in convincing the parties judges also argue
about the appropriateness of the norm being applied (the stare decisis function of judgments) Thus
judicial opinions are also aimed at persuading their readers of the correctness of the decision reached
Modes and means of persuasion such as explicit argument rhetoric metaphor and syntax are
sometimes language-specific and this may cause difficulties to the legal translator 93 Since many legal disputes are battles over the meaning of a statute contract testimony or the
constitution judges must interpret language in order to decide why one proposed meaning overrides
another And in making their decisions about meaning appear authoritative and fair judges often write
THE LANGUAGE OF THE COMMON LAW 136
Judicial language thus constitutes a special genre and research into the language
of judges has revealed a number of linguistic and legal problems which can ensnare
the translation process Judgments are important texts in legal education and
constitute a considerable amount of the required reading of law professionals A
generic structure of judgments had been identified (Bhatia 1993) as well as a
relationship between the structural elements and the communicative functions of
declaring and justifying Alcaraz amp Hughes (2002) considered that linguistic problems
affect ldquoonly the tone and style of the judgment and are in no way concerned with
matters of lawrdquo (p 115) One prominent linguistic feature is the use of the first person
singular Another is the flavour of relatively colloquial expressions introduced in
order to ldquotemper the severity of the law to make the opinion sound more humane and
to create an impression of reader-friendlinessrdquo (p 116) Maley (1994) also approached
the use of the first person singular from the view of modality which he found played
an important role in the justifying function of judgments He cited a famous speech
delivered by Lord Atkin as an example of the semantics of modality Elaborating on
Hallidayrsquos distinction between two kinds of modality modalization and modulation
Maley explained
about the nature of linguistic interpretation Thus the language itself serves an interpretive function
Both legal interpretation and legal reasoning concern the application of legal rules Every rule is
formulated within a certain context but does not explicitly reflect that foundation The background
comprises the elements of the time the place the reason the process and the people who make the rule
Once a legal rule is written down in the form of language it loses its background simply because of the
inherent limits of language This linguistic constraint makes the application of legal rules all the more
difficult Where a judgment seeks to justify a particular interpretation of a norm the judicial opinion is
actually an exercise in persuasion it is a subtle interweaving of a statement of a legal norm and the
justification for both the normative content and the form in which it is stated Judges must be free to
use rhetorical techniques that are central to the persuasive force of a text
THE LANGUAGE OF THE COMMON LAW 137
Modalization expresses the varying degrees of probability and usuality while modulation
expresses the various degrees of obligation and inclination Both modalization and modulation
are expressed from the viewpoint of the speaker they can nevertheless be expressed as thoughts
they are objective or subjective In Lord Atkinrsquos speech hellip when he projects lsquo[persons] that I
ought reasonably to have in contemplationrsquo from lsquothe answer seems to behelliprsquo the latter [is] an
example of an objective modalisation and the former a subjective modulation That is Lord
Atkin is saying what in his opinion the law should be (1994 p46)
Maley (1994) thus concluded that ldquomodalisation and modulation are the chief
linguistic means of expressing the justificatory and declaratory functions of
judgmentrdquo (p 46) Unlike the consistent formal and authoritative language of the
legislation the language of judgments may be tainted with the personal style of
individual judges The legal translator should always take into consideration the need
to preserve the stylistic feature of judgments
Solan (1993) carried out a detailed examination of the linguistic aspects of the
law to illustrate ldquohow and why judges write about the structure and meaning of
language to justify their decisionsrdquo (p 1) Solan used various examples to illustrate
the way linguistics entered the process of judicial decision making analysis of the use
of adjectives in jury instruction analysis of the relationship between adverbs and
prepositional phrases and cases focused on the meaning of certain words in the
legislation Judges often faced linguistic issues when lawyers attempted to interpret
legal rules in the legislation or legal principles laid down in previous judgments in
favour of their own clients (p 28) The final decision rested with the judges
THE LANGUAGE OF THE COMMON LAW 138
hellip the judge hellip will often resort to legally recognized principles of interpretation such as
attempting to divine the intention of the drafters of the document On occasion these principles
are linguistic and it is upon these that I will focus hellip Included among the examples are a
linguistic-legal principles called the last antecedent rule principles governing the interpretation
of conjunction and disjunction (and and or) rules for the interpretation of pronouns and a
debate about the proper scope of adjectives (Solan 1993 p 28)
The above mentioned jurilinguistic principles are a useful starting point when trying
to understand the linguistic problems that the legal translator may encounter The ldquolast
antecedentrdquo rule is the doctrine of interpretation that states that the qualifying words
or phrases in a statute refer to the immediately preceding language unless common
sense indicates that they were intended to apply to something less obvious or more
distant It thus forms an interpretive guide that courts may use to decipher uncertain
statutory language94 In summary a linguistic approach gives us some valuable
insights into the language of judgments and their interpretative rules
In legal translation it is crucial for the translator to understand the underlying
legal principles and legal reasoning in order to transfer the culture of the case law into
Chinese As already shown above rules and principles in each subject of the law have
been developed into concrete and coherent constructions that make up the common
law today These rules and principles have been consistently developed by judges in
94 The andor rule is an interesting and controversial one Legal drafters try to be clear by using
ldquoandorrdquo However there are still many case laws interpreting these two conjunctions Although courts
generally prefer interpretations that make sense of language over ones that turn it into nonsense the
judicial interpretation of ldquoandorrdquo is sometimes an exception How this could be implemented in an
adversarial system was somewhat difficult to see since the interpretation of statutes and legal principles
was considered to be a question of law and therefore the domain of judges (Tiersma 1999 p 130)
THE LANGUAGE OF THE COMMON LAW 139
their decisions95 In section 33 of chapter 3 we have identified the very culture of the
common law as a set of legal concepts and legal principles The concrete
representations of this culture are evident in the various judgments Legal principles
derive from the process of legal reasoning while legal reasoning is based on legal
principles The two are inseparable in a judgment A definition of legal reasoning
given by Carter (1994) described its composition
Legal reasoning describes how a legal opinion combines the four elements the facts
established at trial the rules that bear on the case social background facts and widely shared
values When judges reason well their opinion harmonizes or lsquofits togetherrsquo well these four
elements (p 15)
Carter (1994) also pointed out that ldquoJudicial opinions hellip give meaning to all types of
legal rules hellip precedents in many cases are vehicles for rationalizationsrdquo (pp15
143)96 This means that only if we understand the judicial opinions can we understand
the meaning of legal concepts or principles and hence case law as a whole97 Maley
(1994) thus concluded that ldquocommon law judges do not regard the application of the
95 The common law system is based on the legal principle of deciding points in litigation according to
precedent This applies both to application of the common law and interpretation of statute Under this
principle decisions of courts on matters of law are binding on subordinate courts or tribunals and if
not binding are highly persuasive on the court itself or equivalent courts 96 It is argued that there are at least three things which legal theorists could mean by legal reasoning (a)
reasoning to establish the existing content of the law on a given issue (b) reasoning from the existing
content of the law to the decision which a court should reach in a case involving that issue which
comes before it and (c) reasoning about the decision which a court should reach in a case all things
considered 97 Reasoning by analogy is integral to legal reasoning in the common law Any theory of legal
analogizing that seeks to explain the way in which precedents are utilized must account for the
influence of legal principles on the creation of legal analogies and for the use of analogies as a means
to test and refine these principles
THE LANGUAGE OF THE COMMON LAW 140
principle of law to the facts of the case as a purely mechanical process Reasoning is
involved a kind of reasoning by analogyhellip In giving judgment judges hellip make
explicit the reasoning processes which have led them to that decision the cases they
have considered the analogies they have considered and rejectedmdashin short their
individual lsquofullest examinationrsquordquo (p 43) Legal analogizing thus plays an important
role in determining the scope of principles themselves98
Let us take an example from criminal cases to illustrate how legal principles in
the judgments might be identified In the common law tradition the vast majority of
criminal law is un-coded and the legal concepts and legal principles could be found
only in the judgments One essential legal concept in criminal law is mens rea This
focuses on the mental state of the accused and requires proof of a positive state of
mind such as intent recklessness or wilful blindness Some level of mens rea is
always a required element of the crime with which the accused is charged and must
be proven by the prosecution Therefore the principle of mens rea is the fundamental
principle of the criminal law In the famous mens rea murder case R v Nedrick 99 it
was made plain by Lord Lane CJ that the mens rea of intent could be inferred by a
jury when the defendant knew that death or really serious injury would come about as
a ldquovirtual certaintyrdquo of the act contemplated and done The House of Lords held in R v
Woollin100 reasoning by analogy that the principle of mens rea was applicable to the
present issue However it developed the principle of mens rea by suggesting that the
use by the trial judge is of ldquosubstantial riskrdquo rather than ldquovirtual certaintyrdquo Actually
98 Principles are empty unless tested by reference to concrete examples Any complete model of legal
reasoning and legal analogizing must simulate the manner in which principles influence the creation of
analogies and the way in which principles are themselves tested and refined on a case by case basis 99 [1986] 1 WLR 1025 100 [1998] 3 WLR 382
THE LANGUAGE OF THE COMMON LAW 141
there are other cases that address the principle of mens rea ie R v Moloney 101 and
R v Hancock and Shankland102 These cases worked together to clarify the legal
concept and legal principle of mens rea especially the meaning of intention in terms
of acts that cause grave bodily harm or death
We can see that judgments are part of a community and part of a tradition103
Judgments are law in action where abstract legal rules are applied to solve concrete
problems and its justification are provided Most importantly judgments state what
the law is and define the legal concepts and legal principles embodied in the law In
other words judgments make up the most substantial part of the referencel system of
the common law against which the legal terms should be construed Therefore we
need resort to judgments for the real meaning of a translated legal term in the
legislation in order to understand the concept it stands for and related legal concepts
and legal principles In this sense translation of judgments is one of the most
important ways of building a metalinguistic mechanism for the common law As
noted in section 223 of chapter 2 cultural transfer is eventually effected by
metalinguistic operation as such
101 [1985] 1 All ER 1025 102 [1986] 2 WLR 257 103 In this connection Goodrich (1990) remarked
The Common Law will always exceed its particular texts its particular references its positive
forms To know the law is a matter of knowing an antique and unwritten tradition that exists
outside of history beyond all texts in the inaugural realm of things divine and to be divined
(augured) In Cokersquos words even where it is a matter of reading the law it is a question of reading
not simply the words of the text but also the tradition that accompanies them ( p 117)
Chapter 6
Cultural Transfer in Translating the Common Law into Chinese
61 Transfer of the Legal Culture of the Common Law
611 Problems in Translating the Common Law into Chinese
As we saw in the previous chapter the language of the common law is a complex
collection of linguistic habits that have been developed over many centuries one that
judges lawyers and other legal professionals have learned to use strategically Its
distinctive linguistic features accordingly reflect the underlying conceptual thinking of
such users In the same chapter we found that the legal culture of the common
lawmdashits legal concepts and legal principlesmdashis intricately woven into the texture of
its language In this section we will further analyze how both the legal culture and the
language of the common law pose difficulties to the legal translator as she sets about
her work
The problems that arise when translating the common law into Chinese are
closely related to both the legal culture of the common law and the specific features of
English legal language and we can categorize them into two major groups
(1) Problems arising from cultural differences between English and Chinese
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 143
The most daunting aspect of translating the common law into Chinese is the
culture-specific quality of the source legal texts In many cases a difference in the
mere form of wording amounts to a difference in law
For instance if A lends money to B on mortgage and stipulates that the interest shall be 5 per
cent but if not paid promptly 6 per cent the latter part of the provision is void as a penalty Thus
B need pay only 5 per cent even if he does not pay promptly Yet if A had provided that interest
should be 6 per cent but if paid promptly 5 per cent the whole would have been good (Williams
1948 Jan pp 78-9)
In essence both provisions stipulate the same thing B to pay 5 per cent if he pays
promptly if not 6 per cent Yet the first formulation is not allowed by law whereas
the second is allowed Following the wording of the source text would seem to be a
play-safe strategy in legal translation and in the present case there is no immediately
apparent reason for the translator to deviate from the original wording But consider
the following case
If A gives property on trust for B lsquobut if B marries then for Crsquo the gift to C is struck out because
it tends to induce B to remain unmarried and the procreation of legitimate children is regarded as
a public interest Thus on this form of words B will take absolutely But if the words used were
lsquoon trust for B until he marries and thenceforth for Crsquo the gift over would be valid and B would
lose the property if he were to marry (Ibid p 79)
Here we meet the famous distinction between ldquobut ifrdquo and ldquountilrdquo in English law
Again it is obvious that both of the formulations under scrutiny intend to stipulate the
same thing B must give up the property to C once he marries However the
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 144
formulation using ldquobut ifrdquo is regarded as void whereas the one using ldquountilrdquo is valid
The translator may well find that her translation of the second formulation into
Chinese ldquo甲以信託形式將財產贈予乙直至乙結婚為止屆時財產將改贈予丙rdquo
looks rather clumsy and so turn instead to the wording of the first formulation which
looks simpler and more natural ldquo甲以信託形式將財產贈予乙 但如乙結婚 則改
贈予丙rdquo If she does this however she will have turned the original valid formulation
into an invalid formulation
As judicial decisions are sometimes arrived at purely on the particular words
used in a particular case changing the wording of the source text risks producing the
opposite legal effect in the target text This is why lawyers are so cautious over the
words they use This is also why the legal translator is often instructed not to deviate
from the wording of the source text
At a higher level the particular sentence structure of a statute may embody the
spirit of the common law According to Francis Cheung (1991) a penalty provision in
English criminal law is invariably formulated in the negative which is a manifestation
of a fundamental principle of the common law namely the ldquoresidual principlerdquo (pp
304-05) This principle accords citizens freedom to do whatever they like so long it is
not expressly prohibited by the lawmdashfreedom is whatever the law does not expressly
prohibit In contrast traditional Chinese law accords people freedom to do those
things allowed by the lawmdashfreedom is whatever the law allows To illustrate this
point he cited as an example the translation of a section of the Film Censorship
Ordinance 1988
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 145
15 (1) A person shall not exhibit a film in respect of which a certificate of exemption has been
issued under section 9 or a certificate of approval has been issued under section 13 unless the
certificate or a legible photocopy thereof is displayed and kept displayed in a conspicuous
position in or about the entrance to the part of the place intended to be occupied by persons
viewing the exhibition of the film during the period of exhibition of the film
The section was translated into the following two alternative versions
Version 1
15 (1) 任何人上映影片須在影片上映期間將根據第 9 條發給該影片的豁免證明書或其
清晰影印本或根據第 13 條發給該影片的核准證明書或其清晰影印本一直展示在用以容
納觀眾觀看該影片的場所入口或近入口處的當眼位置否則不得放映該影片
Version 2
15 (1) 無論何人不得上映根據第 9 條獲發豁免證明書或根據第 13 條獲發核准證明書的
影片除非在該片整段放映期間將上述證明書或其清晰影印本[或上述核准證明書或其
清晰影印本]展示在用以容納觀眾觀看該影片的場所入口處或近入口處的當眼位置
Cheung noted that Version 1 was more fluent but since it was formulated in the
affirmative and therefore unable to reflect the spirit of the residual principle it was
eventually not adopted On the other hand even though Version 2 sounded a little
unnatural in Chinese it was adopted as the official translation since it conformed to
the legal norm for penalty provisions
Thus in legislative translation the linguistic features of the source text often
dictate how it should be translated Preserving the linguistic features of the source text
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 146
is not as Vermeer and Snell-Hornby alleged transcoding but preserving the culture
of the source text
The language of the common law is also a manifestation of a series of
traditionally well-formed legal concepts These conceptions are the philosophical
foundations of the common law tradition and the basis of the legal principles
cultivated by legal reasoning unique to the conceptualization of the common law
Some common law terms for example are noted for their generality and abstractness
eg ldquoreasonable personrdquo or ldquodue processrdquo Common law language also employs
many abstract concepts that ldquodo not take their meaning from sensed experience but
are normative in characterrdquo (Farrar amp Dugdale 1990 p 77)67 The legal translator
must thus overcome the conceptual differences between English and Chinese Having
shown that legal concepts and legal principles are the major elements in the culture of
the common law we now need to discuss how they pose problems for the legal
translator The following example is taken from the frequently cited case Donoghue
(or MrsquoAlister) v Stevensonmdashthe ldquoPaisley snailrdquo case68 In the case Lord Atkin made
a famous speech which constructed the foundation of the modern law of negligence69
67 Farrar and Dugdale (1990) created a vivid simile to illustrate the importance of concepts in the
Common Law They remark ldquoIndeed conceptual thinking came to dominate the English Common
Lawhellip Concepts are more like chess pieces They can be maneuvered to produce certain results but the
players have a choice as to the move Similarly lawyers and judges often have a choice as to how they
will move the concepts They way in which they are moved and are applied to facts involves a process
of reasoning helliprdquo (p 78) 68 In this ground-breaking case a woman May Donoghue claimed to have been made ill by a bottle of
ginger beer she had bought in a cafeacute in Paisley Mrs Donoghue sued not the proprietor of the cafeacute but
the manufacturer of the drink She argued that the manufacturer had been negligent in not noticing that
the bottle contained a snail before filling it with ginger beer and sealing it Donoghue v Stevenson was
ground-breaking in Scots law as previously the customer would have been expected to sue the
shopkeeper rather than the manufacturer with whom she had no lsquocontractrsquo However in this instance
the drinkrsquos manufacturer was found liable for damages as they had neglected to provide a system to
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 147
Firstly it is evident that there are many terms peculiar to the Common Law such
as ldquoduty of carerdquo ldquoliability for negligencerdquo ldquoacts or omissionsrdquo ldquoreliefrdquo ldquoremedyrdquo
In the Common Law duty of care is the legal obligation as a citizen in societymdashit is a
question of law that requires the judge to determine if the duty is under a legal
obligation to exercise reasonable care in favour of the plaintiff Thus mastering the
cultural implications of the above legal concepts the ldquocultural immersionrdquo suggested
by Curran (1998 p 83) was a pre-requisite for the legal translator to comprehend
thoroughly the meaning of the English legal text As noted in section 52 of chapter 5
the effort to find Chinese equivalents for the above English terms would be futile
since there are no terms available in Chinese to express some of the most elementary
notions of the common law The legal translator in Hong Kong has to overcome the
difficulty of translating terms expressing concepts which are absent in Chinese
protect the public in such a way that lsquosnails would not get into the said bottle render the said
ginger-beer dangerous and harmful and be sold with said ginger-beerrsquo 69 Lord Atkinrsquos remarkable judgment in this case reads in part
At present I content myself with pointing out that in English law there must be and is some
general conception of relations giving rise to a duty of care of which the particular cases found
in the books are but instances The liability for negligence whether you style it such or treat it as
in other systems as a species of lsquoculparsquo is no doubt based upon a general public sentiment of
moral wrongdoing for which the offender must pay But acts or omissions which any moral code
would censure cannot in a practical world be treated so as to give a right to every person injured
by them to demand relief In this way rules of law arise which limit the range of complainants
and the extent of their remedy The rule that you are to love your neighbour becomes in law you
must not injure your neighbour and the lawyerrsquos question ldquowho is my neighbourrdquo receives a
restricted reply You must take reasonable care to avoid acts or omissions which you can
reasonably foresee would be likely to injure your neighbour Who then in law is my neighbour
The answer seems to bemdashpersons who are so closely and directly affected by my act that I ought
reasonably to have them in contemplation as being so affected when I am directing my mind to
the acts or omissions which are called in question (Donoghue (or MrsquoAlister) v Stevenson [1932]
All ER Rep 1 [1932] AC 562 House of Lords [1932] AC 562)
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 148
Secondly since a set of legal principles is formulated and developed by the courts
based on the significant legal concepts of the common law any lack of methods to
represent these legal principles constitutes another problem For example the common
law concept of tort consists of a breach by the defendant of a legal duty to take care not
to damage the plaintiff or his property and consequent damage from that breach Lord
Atkin in this leading case of Donoghue (or MrsquoAlister) v Stevenson held that while the
decided cases might each examine particular types of liability there must be a common
rationale He developed the argument that the decided cases had evolved to a general
principle which covered the immediate case In this case the applied principle was the
already existent neighbour principle which prescribed that you were to love your
neighbour This then became in law the prescription that you must not injure your
neighbour Lord Atkin then suggested a general test for when a duty is owed and the
lawyerrsquos question ldquoWho is my neighbourrdquo received a restricted reply ie you must
take reasonable care to avoid the acts or omission which you can reasonably foresee as
likely to injure your neighbourmdashwho then in law is my neighbour The answer
seemed to Lord Atkin to be persons who are so closely and directly affected by my act
that the actor ought reasonably to have them in contemplation as being so affected when
he was directing his mind to the acts or omissions which were called in question Thus
the legal duty was owed to persons whom one ought reasonably to have in mind as
being affected by onersquos particular behaviour70 The House of Lords in this case held
that manufacturers of products do have a duty to the ultimate consumer of their product
to take reasonable steps to prevent defects in its products which are likely to cause
damage to person or property The above reasoning established this as an important
case in the area of product liability In Lord Atkinrsquos approach we can note the common
70 This case is well-known as it sets out ldquothe circumstances under which a legal duty to take care will
ariserdquo (Shum 1992 p 205)
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 149
law spirit of stare decisis Lord Atkin did not ignore the precedents Instead he found
within them an underlying principle which he then applied In a sense Lord Atkin
looked backward before he moved the law forward to develop the legal concepts and
legal principles In translating such case law it is obvious that the underlying principles
are alien to Chinese but are a sine qua non for our current discussion of the culture of
the common law The legal translator thus faces the problem of finding a way to
represent such legal concepts and legal principles in Chinese
(2) Problems arising due to the differences between the syntactic arrangements word
order and language systems generally of English and Chinesemdashfor brevityrsquos sake
ldquolinguistic problemsrdquo71
Firstly frequent use of the passive voice is characteristic of the English common
law Voices are rather considered to have particular functions of their own than being
used for variation in the legal text The passive voice was sometimes viewed as
helping to convey the objectivity that law-makers seek to achieve ldquohellipthe passive of
the British formula renders the authority of the speaker more remote neutral and
abstract reducing the immediacyrdquo (Bowers 1989 p 28) In addition there are
instances where the passive is chosen for thematic reasons Also take the example in
sect13 of the translation of ordinance with the heading Apportionment of liability in
case of contributory negligence
Below is the English version
71 It is necessary to discuss linguistic problems since as we discussed in chapter 1 translation remains
linguistic transcoding Without a thorough understanding of the linguistic problems posed by the
differences between English and Chinese we cannot discuss the problem of cultural transfer properly
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 150
hellip a claim in respect of that damage shall not be defeated by reason of the fault of the person
suffering the damage but the damages recoverable in respect thereof shall be reduced to such
extent as the court thinks just and equitable having regard to the claimants share in the
responsibility for the damage (Amended LN 337 of 1989) (Cap 23 Sect 21)
The Chinese version reads as follows
hellip則就該損害提出的申索不得因受損害者有過失而敗訴但就該申索可追討的損害賠償
則必須減少而減少的程度是法院在顧及申索人對損害應分擔的責任後認為是公正與公
平的款額
Obviously the passive voice is employed above in order to foreground or thematize
ldquoclaimrdquo and ldquodamagesrdquo and these nouns take up subject position The legal translator
should consider whether it is appropriate to translate the English passive into Chinese
using sentences with ldquo被rdquo ldquo受rdquo or ldquo獲rdquo Therefore the Chinese translation follows
the English structure in conformity with the thematic emphasis by using the typical
topic-comment structure in Chinese
Secondly lengthy and complicated sentences are frequently used often
involving nominalization subordination and coordination all of them surface features
that help to make the common law seem so markedly complex72 Nominalization can
increase the inclusiveness of an expression but can also create a certain degree of
abstraction since the noun phrase may substitute for an entire subordinate clause As
72 A nominalization is a noun phrase that has a systematic correspondence with a clausal predication
which includes a head noun morphologically related to a corresponding verb
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 151
a result post-modification is largely used increasing the complexity73 The extensive
use of coordination and subordination structures in general leads to long and
complicated sentences in order to achieve the goal of inclusiveness precision and
clarity Consider the following sentences in Donoghue (or MrsquoAlister) v Stevenson
The liability for negligence whether you style it such or treat it as in other systems as a species of
culpa is no doubt based upon a general public sentiment of moral wrongdoing for which the
offender must pay
But acts or omissions which any moral code would censure cannot in a practical world be treated
so as to give a right to every person injured by them to demand relief
In the above two sentences the subjects ldquoliabilityrdquo and ldquoacts or omissionsrdquo are
followed with more or less elaborate post-modification ie the dependent clauses
introduced by ldquowhetherrdquo and ldquowhichrdquo respectively The legal translator needs to
understand the logical progression and legal reasoning underlying these complex
sentences when striving for semantic equivalence between English and Chinese
73 For varied forms of post-modification Crystal amp Davy suggest a four-fold division
a a preposition with a nominal group (ie a prepositional phrase) eg lsquothe defence of the free
worldrsquo
b a non-finite clause eg lsquothe diazo- and azo-compounds discussed aboversquo
c a dependent clause which may be introduced by a pronoun or simply attached directly to the
nominal it modifies eg lsquothe man I knowrsquo
d an adjective eg lsquo God the Father almightyrsquo (in Hiltunen 1989 p79)
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 152
612 Legal Translation as Cultural Transfer-- Two Levels of Transfer
In this section we will not only present a theoretical framework for analyzing
legal translation as cultural transfer but also provide principled methodologies for
legal translation especially for translating the common law into Chinese It has been
noted that legal translation as cultural transfer inevitably involves the linguistic and
conceptual adjustments of the translating language Translating the common law into
Chinese is thus a paradigm of cultural transfer as foreignization and necessitates the
importation of common law legal concepts and legal principles into Chinese How
exactly could common law culture be transferred into Chinese
Figure 61 which recalls the more general process diagram of Figure 32
illustrates the process of translating the common law into Chinese in order to achieve
the conceptual semantic equivalence noted in section 223 of chapter 2
ST (common law in English) TT (common law in Chinese)
ST is the
representa-
tion of SC
SC is
embedded
in ST
Text of the English
common law
(legislation and case
law)
Linguistic
transcoding
Text of the English
common law in
Chinese (legislation
and case law)
The missing link
between the
Chinese translation
and the culture of
the common law
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 153
SC (Culture of the common law) SC (Culture of the common law)
Figure 61 Process of Translating the Common Law into Chinese
The problem is one of cultural transfer Since section 4(1) of the Official
Languages Ordinance (Cap 5) provides that all ordinances shall subject to certain
exceptions be enacted and published in both official languages (ie English and
Chinese) Section 10B (1) prescribes the fundamental principle of equality between
the two language versions of Hong Kong laws It provides that both language texts of
an ordinance shall be equally authentic and that the ordinance shall be construed
accordingly This means the Chinese text is neither subordinate to nor a mere
translation of its English counterpart74 However such a stipulation of the ldquosection
alone is still not sufficient to make the Chinese text a meaningful representationrdquo (Sin
1998 p 205 the authorrsquos italics) As illustrated in figure 61 even though we conjure
up a Chinese text that translates the English common law (legislation or case law)
and use a range of techniques neologism borrowing etc to arrive at semantic
equivalence this still does not mean that the Chinese text is capable of as is the
English version representing the culture of the common law We still need to find out
how to in Sinrsquos (1998 p 195) words establish the ldquomissing link between language
74 BLIS website A paper Discussing Cases Where the Two Language Texts of an Enactment are
Alleged to Be Different
Culture of the
common law legal
concepts and legal
principles in Chinese
Culture of the
common law legal
concepts and legal
principles
Transference of
the legal culture
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 154
and lawrdquo mdashto be precise the missing link between the Chinese language and the
culture of common law In this connection Sin (1998) rightly points out
All large-scale cultural transfers begin in the absence of a readily usable language The first and
most natural response of the native culture is to make an attempt to naturalize the foreign
culture Where it has a close affinity to the native culture naturalization or minor adjustment
may be adequate But where it is one of great complexity or radically different the native
culture will find it necessary at some point to change and adjust its language so as to make it
suitable for assimilating it hellip In the absence of an established Chinese legal language translating
Hong Kong laws into Chinese without the benefits of naturalization and subject to enormous
constraints is in many ways tantamount to creating a new form of Chinese Special lexical and
syntactic devices were required to cope with the rich and highly technical vocabulary of the
Common Law as well as its distinctive mode of thinking (pp 136-37)
We can see that cultural transfer is first and foremost linguistic transfer As has been
shown in section 211 any translation necessarily involves transcoding on the
linguistic level Where no Chinese term exists to express common law concepts new
terms have to be created Sager also noted ldquoNew terms are regularly introduced into
the language either to fill a gap created by the introduction of a new concept or to
replace an existing less efficient termrdquo (1990 p 114) The Chinese language needs to
be adjusted to accommodate new concepts representing one level of cultural
transfermdashtransfer at the linguistic level However common law Chinese cannot
acquire its new meanings unless these are understood with reference to the English
common law To explain this point Cao (2004) remarks
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 155
It is a fact that when Common Law concepts are translated into Chinese very often new words
need to be created as such concepts do not exist in Chinese Even after the new linguistic terms
are brought into being in Chinese through translation their referential objects continue to be
found in English Common Law not Chinese law and need to be understood with reference to
Common Law hellip Legal concepts and their translations are relative relational and referential If
we see a legal concept as an idea a network of cross-referential sign-functions that is a
complex sign-system a translated legal concept can grow and expand its meanings and take on
meanings from two sign systems linguistically and culturally hellip We need to read a translated
legal concept with reference to the legal system it refers to not just in what language it is
re-presented (pp 172-73)
Cao rightly points out the principle of understanding the translated law after the initial
linguistic transfer since the culture behind it could only be identified in the English
common law instead of common law Chinese
Since the present study concerns itself not only with identifying such a linguistic
transfer but also justifying it we draw attention to the fact that such an adjustment is
more dramatic culturally than linguistically Regarding this Sin (1998) presents a
convincing argument
Before the Common Law integrates into the thought-world of the Chinese language the Chinese
text of Hong Kong law is as it stands a mere linguistic recoding of its English counter-parthellipIts
meaning is transparent only to those who have taken part in the process of translation but
opaque to uninitiated eyes Without the support of a legal culture the semantic link between
Chinese and the Common Law exists only between the two texts As has been noted in cultural
translation one cannot recode in one stroke a text and the culture behind it The culture has to be
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 156
developed hellip Yet the legal culture is in a very real sense already existing but embodied only in
English not in Chinese hellip Particularly it is there in the heads of Hong Kongrsquos bilingual
Lawyers who have the culture at their disposal hellip Culture always comes with the reader not the
text (p 138)
It may well seem difficult for the common Chinese language user to read cultural
meaning from the existing common law Chinese since the meaning of the common
law Chinese has to be construed against the English common law before the whole
conceptual system of the common law can be imported into the Chinese language By
pointing out that legal culture is critical to the understanding of common law Chinese
Sin highlights the significance of developing in Chinese the legal culture of the
common law Given that any legal culture resides within the competence and mastery
of legal professionals proficient in both Chinese and English one may ask how a
broadly analogous and comprehensible culture could be developed for the common
people As Sin noted that the meaning of common law Chinese is intelligible to the
legal translator who fully understands the process of translation providing the
justification of the linguistic transfer would be an effective way to tranfer the culture
which the reader has to read into the Common Law Chinese
As has been discussed in section 223 both Jakobson (1959) and Feyerabend
(1987) made clear the significance of metalinguistic operations in introducing cultural
concepts and establishing new languages in target language This applies especially to
legal translation since we can we not only formulate new languages but also
implement these languages by constructing new concepts of law In this sense the
legal translator is using metalanguage as the tool by which languages are established
in terms of other languages For example as indicated in section 422 Meijier (1950)
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 157
explained that Shenrsquos memorials were critical in understanding how and why the
foreign legal terms were translated In other words memorials as metalanguage are
vital for transmitting alien legal concepts into Chinese because they provide the
necessary theoretical framework and working principles It is now clear that apart
from linguistic transfer translation as cultural transfer is ultimately a conceptual
transfer at the metalinguistic level so that to give an account of cultural transfer in
legal translation is ultimately to give an account of how or why legal translators make
translational judgments corresponding to legal and cultural concepts Thus linguistic
transfer aiming to import the culture of the common law inevitably leads to the second
level of cultural transfermdashtransfer at the conceptual level
It is clear from the foregoing discussion that the theoretical framework for
cultural transfer in translating the common law into Chinese accommodates two levels
of transfer linguistic transfer ie transfer at the linguistic level which involves the
adjustment of Chinese language and conceptual transfer at the metalinguistic level
On this account Sin (1989 1993 1996) proposed the following general principles in
connection with translating the common law into the Chinese
(1) Fixing the semantic reference system
(2) Adjusting the target language
(3) Building metalinguistic devices to fill the conceptual gap
Cao (2004) echoes Sinrsquos first principle ldquoSuffice it to say that the Chinese translations of
common law concepts in Hong Kong need to be understood with reference to the common
law if the lsquotwo systemsrsquo are to remainrdquo (p 173) As for the second principle adjustment
on the linguistic level is a must The Chinese language has to be amplified to
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 158
accommodate new concepts Regarding the third principle there are several ways of
constructing a metalinguistic mechanism by which the ldquoconceptual gaprdquo (Joseph 1995
p34) could be bridged the ldquomissing linkrdquo (Sin 1998 p 195) could be reconnected and
the culture of the common law could be eventually transferred into Chinese
(1) Write commentaries or articles explaining why and how the translation was
done including explanatory remarks in the preface identifying the objective and
approach add footnotes in the translated work or appendannotations whenever
possible
(2) Translation of related legal works into Chinese
(3) Compiling English-Chinese legal dictionaries
Although the arduous labours of Hong Kongrsquos legal translators have succeeded
in translating a considerable body of common law terms into Chinese these are by
themselves far from sufficient to enable an understanding of the Common Law
concepts that they are supposed to convey The development of metalanguage fosters
the ability to treat language not just as a way of expressing meaning but as an object
of thought in its own right The justification of the translation in consequence can be
identified in the metalanguage where the cultural concepts are ultimately perceived
and transferred The reader once guided can turn to the metalanguage where the
usage of words in Chinese is modified and where the manner in which Common Law
concepts were translated into Chinese is explained As has been clear from our
foregoing discussion legal translation as cultural transfer takes place at two
levelsmdashlinguistic and conceptual In the next section we will analyze how these two
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 159
levels of transfers can be carried out presenting detailed analyses of selected
translations
62 Cultural Transfer in Translating the Common Law into Chinese -- Analysis
of Selected Translations
Thus far we have examined general problems in translating the common law into
Chinese and proposed the theoretical framework for viewing legal translation as cultural
transfer We have noted that transfer on the linguistic level requires adjustments of the
Chinese language thus establishing linguistic equivalents in Chinese for the source
language Such a conceptual semantic equivalence between the common law Chinese
and the original common law would eventually be achieved on the metalinguistic level
Metalanguage has proved to be effective device in transferring the culture of foreign laws
into Chinese As discussed in section 61 there are three major methods of constructing
the metalanguage for transferring the culture of the common law into Chinese In this
connection the proposed theoretical framework needs to be applied on two levels for a
thorough analysis of the cultural transfer involved 1) explain the linguistic transfer ie
adjustments of the Chinese legal language legal vocabulary in particular and 2) justify
the conceptual transfer at the metalinguistic level ie employment of metalinguistic
devices We will now explore such a two level transfer by analyzing selected translations
from the viewpoint of translated common law terminology
When translating an item of common law terminology into Chinese the legal
translator needs to conjure up a corresponding linguistic sign in Chinese which can
represent the same concept Since translation is much more than the substitution of lexical
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 160
and grammatical elements between two languages a problem arises from the very
beginning if the translator aims at finding the exact equivalent Where no such equivalent
exists the translator has to form (or redefine) a term to represent the original concept The
concept-formation process is what happens when ldquotranscodingrdquo the common law
terminology ie use Chinese to express common law concepts It has been noted that
linguistic adjustments representing a transfer on the linguistic level are indispensable for
concept-formation where there are no equivalents or only partial equivalents Chinese
legal vocabulary needs expanding and adjusting with common law concepts new to
Chinese being introduced in large numbers
Sager (1990) pointed out that the use of ldquolexical innovationrdquo including
neologisms to introduce new concepts (p 30) We can categorize the techniques
involved into two major kinds They are
(1) Lexical expansion (redefinition) by selecting an existent term in the target language
as the equivalent of the term in the source language a new definition is given to this
translating term which eventually results in the expansion of the lexical meaning
(2) Neologism a new word form may be created denoting the meaning of the
corresponding word in the SL There are several ways of coining new words in the TL
(a) Calque ie reproducing the morpheme structure of the SL lexical unit within the
means of the TL to create a new TL lexeme This approach is considered a species of
literal translation75
75 Cai Qilin (2002) points out that calque is the major technique used in translating Buddhist texts in
ancient China
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 161
(b) Paraphrase ie describing or rendering the meaning of a translated term which
has no counterpart in the TL76
(c ) Direct borrowing ie using transcription or transliteration where the TL lexicon
adopts the SL term
We will further discuss the use of above mentioned techniques and present various classes
of examples of translated common law terminology Some of these examples will also
show how the principles were adopted by the Bilingual Laws Advisory Committee77
when searching for appropriate linguistic equivalents for English legal terms As noted by
Jin amp Sin (2004) ldquoBLAC needs to scrutinize the translation by taking into account both
the legal concepts and linguistic rulesrdquo (p 90)78
(1) Translation of technical terms
For group onemdashtechnical terms which are unique to common law language and
culturemdashthe problem is that there is no Chinese equivalent What the translator has to
tackle is how best to conjure up Chinese equivalents for such technical terms given
always that such equivalents are likely to remain unreliable or speculative tools for
elucidating common law meanings or concepts
76 Also called ldquodescriptive paraphraserdquo by Šarčević (1997 p 252) 77 Under Section 4C (1) of the Official Languages (Amendment) Ordinance 1987 the independent
committee was established by the Governor on 28 October 1988 to scrutinize the translation of the
English legislation enacted before 1989 produced by the Law Drafting Division It is abbreviated as
BLAC 78 The original Chinese text is ldquo委員會審閱的內容既涉及法律概念也涉及語言規範rdquo
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 162
Valuable experiences drawn from the arduous work completed by the Hong Kong
translation team under LDD which completed the project of translating the English
common law into Chinese before 1997 reveal two possible major techniques
(a) Create new words in accordance with terminological creation principles
Forming a new term in English may involve techniques such as prefixing suffixing
and compounding As Chinese characters are pictographic they cannot be inflected as an
English word can but Chinese can form semantic representations by putting together two
or more existing linguistic forms to create a new term The principle means of word
formation is composition which has both advantages and disadvantages On the one hand
composition provides a convenient way of combining the meanings of two words to
express a new meaning Readers tend to derive the meaning of a new term which is
composed of two or more existing words simply by adding the meaning of the
components but without understanding the real meaning of the new term However when
coining new terms in Chinese composition remains a major tool Let us consider some
examples
Example 1 Chattels
The official translation for ldquochattelsrdquo is shichan (實產)79 In the common law
among the many terms relating to property chattels denotes the concept of personal
property contrasting with property relating to land The Chinese equivalent for chattels
needs to denote the concept of ldquohellip any kind of property which having regard either to 79 In Rule 27 of Chapter 6A the Chinese version for the expression ldquohellip and chattels in the possession
of the debtorrdquo is ldquo債務人所管有的hellip實產rdquo
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 163
the subject-matter or the quantity of interest therein is not freehold hellip in a more narrow
and more modern sense hellip means movable property or effects which belong personally to
the owner helliprdquo (Jowittrsquos Dictionary of English Law p 328)80
The BLAC first proposed to translate it as dongchan (動產) Later they found that
ldquo動產 as a Chinese legal concept was not an equivalent for lsquochattelrsquo embodied in the
legal concept behind the lsquoBills of Sale Ordinancersquohellip the Common Law concepts of
lsquopersonal propertyrsquo and lsquoreal propertyrsquo were not only alien to the Chinese legal concepts
it was also difficult to find their exact equivalents in the European legal system or
Canadian bilingual legislationrdquo (Minutes of the 3rd meeting of BLAC 17th September
1992 p 4) As shi (實) can be construed as shiwu (實物) ie an article or a thing thus
shichan (實產) can indicate the concept of chattels to some extent One may argue that
shi (實) can also mean shizaide 實在的 (concrete) if taken this sense real estate is also a
kind of property that is concrete ie shizaide (實在的) The Chinese equivalent cannot
pose a real contrast with real estate However it is already the best choice we have This
proves that a complete and precise understanding of the translated terminology requires
frequent reference to the common law semantic system
Example 2 Chose in action
The official translation for the term ldquochose in actionrdquo is jufa quanchan (據法權產)81
In the common law chose in action is a rather complicated and evolving concept relating
80 Further references to this dictionary will be made in the thesis and will be abbreviated as ldquoJowittrsquosrdquo 81 In Section 9 of Chapter 23 the Chinese version for the expression ldquohellip or other legal chose in actionrdquo
is ldquo或其他的法律據法權產rdquo
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 164
to property since it is a property right which can only be claimed or enforced by legal
action as distinguished from one which is enforceable by the taking of physical
possession
BLAC once considered using wuxin dongcha (無形動產) to translate this term
However they later found it unacceptable since ldquolsquochose in actionrsquo referred to property
derived from court it would be wrong to translate it as ldquo無形動產rdquo which referred to a
different conceptrdquo (Minutes of the 10th meeting of BLAC p 28) BLAC also proposed
quanwu (權物) or quanchan (權產) for ldquochoserdquo alone as it is a kind of personal property
and ldquotherefore lsquochose in actionrsquo will be translated as lsquo法據權物rsquo or lsquo法據權產rsquo and
lsquochose in possessionrsquo will be translated as lsquo實據權物rsquo or lsquo實據權產rdquo( Minutes of BLAC
Meeting Translation of the terms relating to property 1992)
However jufa quanchan (據法權產) was finally adopted as the equivalent for chose
in action Obviously jufa (據法) is a better expression than faju (法據) for it sounds more
natural and more compatible with the Chinese way of semantic expression Jufa (據法)
can be properly construed as gengju falu (根據法律) while faju (法據) sounds more
awkward Quanchan (權產) is better than quanwu (權物) since chose is considered as a
kind of personal property Therefore the translation for property should be consistently
chan (產) instead of wu (物) In Mainland China there are mainly two translations for this
term One translation is quanli dongchang (權利動產) which emphasizes that it is a kind
of quanli 權利 (right) relating to property (Xu 2004 p 296) The other translation is
sutiwu (诉体物) which sounds rather awkward and the emphasis is placed on the meaning
of susong 诉訟 (action) (Shi trans 1998) The official translation in Hong Kong is the
best of the three available since it effectively conveys the legal meaning of the English
term and seems more transparent to the readers
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 165
Example 3 Fee simple
The term ldquofee simplerdquo is translated as yongjiu chanquan (永久產權)82 In the
common law ldquofee simplerdquo describes the absolute title to land The term consists of two
words ldquofeerdquo and ldquosimplerdquo Fee means an estate of inheritance in real property while
simple means absolute or without limitation Thus fee simple is the largest recognized
estate in land a title without limitation or end The legal meaning of such a technical term
is clear Accordingly the Chinese equivalent of this term typically consists of two
existing Chinese words yongjiu (永久) and chanquan (產權) meaning permanent title to
real property The Chinese equivalent is easily understood One can see that this is
ownership which lasts forever but this in fact conveys only one essential part of the
meaning of fee simple The full and exact meaning resides in and must be retrieved from
the common law Fee simple is not only permanent ownership of indefinite duration but
something freely transferable and inheritable and is thus used to describe ldquoa freehold
estate of inheritance absolute and unqualified It stands at the head of estates as the
highest in dignity and the most ample in extentrdquo (Jowittrsquos p 779)
Example 4 Estoppel83
82 In Section 6 of Chapter 1014 the Chinese version for the sentence ldquohellip shall vest in the trustees in
fee simplerdquo is ldquo須以永久產權形式歸屬受託人rdquo 83 According to Jowittrsquos estoppel is ldquoa rule of evidence whereby a party is precluded from denying the
existence of some state of facts which he has previously asserted An action cannot be founded on an
estoppel hellip Unlike other evidence an estoppel must be pleaded An estoppel may be waivedrdquo (p 725)
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 166
The translation for the ldquoestoppelrdquo is burong fanhui fa (不容反悔法)84 Estoppel is a
very complex legal term dealing with the role of conscience and truth in a court
proceeding It ldquohellip is a principle of justice and of equity It comes to this when a man by
his words or conduct has led another to believe in a particular state of affairs he will not
be allowed to go back on it when it would be unjust or inequitable for him to do sordquo
(Denning MR p241)85 The doctrine of estoppel evolved over a period of one hundred
years to become a general principle in the common law
The Chinese translation of this technical term is phrasal in form and combines the
meanings ldquonot permittedrdquo (burong 不容)ldquodenyrdquo (fanhui 反悔) and ldquorulerdquo (fa 法)86 We
can partly understand the meaning of this newly created Chinese term from its form
However we still need to resort to the common law to understand it fully87 In Mainland
China there are several different translations for this term such as jinzhi fangong (禁止翻
供)jinzhi fanhui (禁止反悔)bude fouren (不得否认) (Shen 1993 p 65)jinzhi
fanyan(禁止反言) (Li 1988 p 596) and jin fanyan (禁反言) (Yang 1997 p 124) By 84 In Section 98 of Chapter 528 the Chinese version for the expression ldquolaw of estoppelrdquo is ldquo不容反悔
法rdquo 85 Denning MR in Moorgate Mercantile Co Ltd v Twitchings [1976] 1 QB 225 CA at p241 86 Susie Dent (2004) a language expert has an observation about the coined words The
extraordinary thing about new words is that probably only about one percent of them are new Most are
old words revived and adapted (p 8) Thus Semantic change of an old word namely specialisation
generalisation and metaphorical change of a word is a common way of coining new words 87 Stroundrsquos Judicial Words and Phrases also gives an interpretation of the term
Estoppel is a complex legal notion involving a combination of several essential
elementsmdashstatement to be acted upon action on the faith of it resulting detriment to the actor
Estoppel is often described as a rule of evidence as indeed it may be so described But the
whole concept is more correctly viewed as a substantive rule of law hellip Estoppel is different
from contract both in its nature and consequences But the relationship between the parties
must also be such that the imputed truth of the statement is a necessary step in the constitution
of the cause of action But the whole case of estoppel fails if the statement is not sufficiently
clear and unqualified (p 943)
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 167
comparison the official translation in Hong Kong is better since it conveys the legal
meaning of the English term more precisely emphasizing that estoppel is an important
legal principle in the common law
We can see that compound terms are essential in creating Chinese equivalents for the
technical terms Sager (1990) laid out the principles for such term creation88 However
he also acknowledged that the communicative dimension of term creation should be
considered relatively less important Perfect communication could never be achieved as it
required that ldquohellip the recipientrsquos state of knowledge after reception of the text corresponds
exactly to the senderrsquos intention in originating the messagerdquo (Sager 1990 p 100) In the
present case the target readers could be both legal specialists and ordinary people and
their knowledge of the law might differ greatly It is not possible for translators to take the
knowledge scope of all their readers into consideration To assume that a Chinese
translation can ever be produced which will be fully understood by Chinese native
speakers is entirely fallacious since the English common law is opaque for most English
native speakers To transfer the cultural meaning of common law terminology will always
requires conceptual adjustments of the translating language ie Chinese
(b) Adopting an existing word and assigning a new meaning to it89 88 Sager (1990) pointed out that ldquothe International Organization for Standardization (ISO) has for many
years been concerned with providing guidance on the creation of terms hellip ISO document ISOR 704
(Naming Principles)rdquo (pp 88-89) Sagerrsquos highly idealistic requirements include ldquoThe term must relate
directly to the concept the term must be lexically systematic hellip there should be no synonyms
whether absolute relative or apparent hellip terms should not have homonyms hellip be monosemicrdquo (pp
89-90) 89 The English lexicographer Susie Dent (2004) observes of coined words The extraordinary thing
about new words is that probably only about one percent of them are new Most are old words revived
and adapted (p 8) Thus semantic change of an old word namely specialization generalization and
metaphorical change is a common means of coining ldquonewrdquo words
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 168
Creating a new word may not always be the best way of translating terms of art in
the common law In some circumstances lexical expansion (redefinition) is another
option Examples include plaintiff (yuangao ren 原告人) defendant (beigao ren 被告人)
petitioner (chengqing ren 呈請人) respondent (dabian ren 答辯人)90 The legal translator
adopts the existing Chinese legal terms as the translations for the above three technical
terms in the common law However we should be aware that as Chinese equivalents for
common law terms they have different connotations under different legal systems
(2) Translation of semi-technical terms
Semi-technical terms ldquoare much more numerous and their number is constantly
growing as the law changes to meet the developing needs of a societyrdquo (Alcaraz amp
Hughes 2002 p 17) Moreover their semantic meanings are much more complicated
thus constantly setting traps for the translator and creating a labyrinth of semantic
connotation ambiguity partial synonymy and context-dependence A number of such
legal terms may not have a fixed legal meaning in the source text as they will carry
different and specific legal meanings in differing contexts these meanings being
90 BLAC came to a final decision after a number of meetings It once had the following list showing
the proposed Chinese translations for ldquodefendantrdquo ldquoespondentrdquo etc
Existing translation LDDrsquos
Proposal
1 Plaintiff 原告人 原告人
2 Defendant 被告人 答辯人
3 Respondent 答辯人 應訴人
4 Petitioner 入稟人 入稟人
5 Accused 被告 被告
(Minutes of the 22nd meeting of BLAC p 7)
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 169
determined either by the definitions given within the context or by knowledge imported
from common legal practice When translating most of such terms there is no need to
deliberately create new equivalent terms in Chinese since most of them already have
Chinese equivalents for their ordinary meanings As such terms can be further divided
into three sub-categories a variety of translation methods will be discussed
(a) For the first typemdashwhere the legal meaning of the term is shared with its core
meaning the established Chinese equivalent will be adopted However we need to
refer to metalinguistic devices to redefine the meaning in a common law context The
following examples illustrate the nature of the problem
Example 1 Abandonment
Since this term has several legal meanings in the common law one of the official
translations for the term is fangqi (放棄)91 The core meaning of the term is to leave
completely to give up or withdraw One of its legal meanings is shared with its core
meaning ie ldquothe relinquishment of an interest or claimrdquo (Jowittrsquos p 3) So it could
be the ldquoabandonment of a vessel by the crewrdquo ldquothe surrender of a child to an adopted
parentrdquo or an abandonment of possession a right an undertaking or a contract
(Strouds Judicial Dictionary of Words and Phrases p 4)92 In all the above contexts
the existent Chinese term fangqi (放棄) is adopted to convey the said legal meanings
Example 2 Attempt
91 The heading Section 6 of Chapter 221G is ldquoabandonment of applicationrdquo and the Chinese version
reads ldquo申請的放棄rdquo 92 Further references to this dictionary will be made in the thesis and will be abbreviated as ldquoStroudrsquosrdquo
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 170
The official translation for ldquoattemptrdquo is qitu (企圖) The legal meaning of the term is
shared with its core meaningmdashto make an effort at something However as a common
law offence the term attempt is a rather complex legal concept and has been used in a
technical way Attempt ldquois an offence to do any act which is a step not being a merely
preparatory one towards the commission of an offencerdquo (Roebuck 1995 p 73)93 Thus
the legal intention or intent is an essential constituent of the offence of attempt to commit
a crime BLAC once proposed to borrow weixu zui (未遂罪) as used in Mainland China
and Taiwan as the translation However it later found that the concept behind weixu zui
ldquo未遂罪rdquo did not coincide exactly with that of ldquoattemptrdquo in the common law So after
rounds of discussions it finally adopted the existing Chinese term expecting that legal
experts or readers would turn to the numerous case laws to interpret the Chinese
equivalent of the term (Minutes of 10th meeting of BLAC p 12)94
Example 3 Confession
The official translation for ldquoconfessionrdquo is gongren(供認)95 The act of telling or
making known something that is seen as wrong or damaging to oneself is the core
meaning of the term In its legal usage it refers to telling the crime one has committed
93 It is ldquoan endeavour to commit a crime or unlawful act the doing of some offence an act done with
intent to commit a crime and forming part of a series of acts which would constitute its actual
commission if it were not interruptedrdquo (Jowittrsquos p 115) 94 Roebuck (1996) used the Chinese equivalent weixu zui (未遂罪) in the book Digest of Hong Kong
Criminal Law (p 39) However in the Index and Glossary of the book attempt was translated as qitu
zui (企圖罪)
95 In Section 51 of Chapter 227 the Chinese version for the expression ldquothe confession of the
defendant rdquo is ldquo被告人的供認rdquo
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 171
which can be admitted as evidence96 While gongren (供認) is capable of conveying the
termrsquos fundamental concept it should always be construed with reference to its common
law legal context This involves noting inter alia that ldquoIn civil procedure a confession is
a formal admission In criminal law a confession is an admission of guilt made either
judicially that is in the course of a judicial proceeding or not Judicial confession may
operate as an estoppel and if plenary is sufficient to found a conviction as where a
prisoner pleads guilty An extrajudicial confession never operates as an estoppelrdquo
(Jowittrsquos p 415)
Example 4 Negligence
The term ldquonegligencerdquo is officially translated as shuhu (疏忽)97 The core
meaning of the term is failure to act with the prudence In the common law
ldquonegligence is not just a state of mind but rather the failure to meet an objective
standard of behaviour the standard of conduct expected of a reasonable person helliprdquo
(Roebuck 1995 p 20) Since part of the termrsquos legal meaning overlaps with its
ordinary meaning the ordinary Chinese equivalent was adopted as its legal equivalent
In the common law the term ldquonegligencerdquo is a rather complex legal concept in the
law of tort The concept of negligence is central to the tort system of liability The
negligence concept centres on the principle that every individual should exercise a
96 Stroudrsquos gives interpretation for the term ldquoconfessionhellipis an admission the words of which
considered objectively and in their context expressly or substantially or inferentially admit guilt
(Anandagoda v R [1962] 1 WLR 817)rdquo (p 547) 97 In Chapter 71 the Chinese version for the expression ldquonegligence or other breach of dutyrdquo is ldquo疏忽
或其他不履行責任rdquo
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 172
minimum degree of ordinary care so as not to cause harm to others98 Thus duty of
care breach of the duty causality and injury are four essential elements of the offence
of negligence There is a long list of judicial interpretations for this term running to 21
entries in Stroudrsquos Again the legal concept of negligence could only be properly
construed against the semantic referential scheme of the common law
Example 5 Public Place
The term ldquopublic placerdquo is translated into gongzhong defang or gongzhong
changsuo (公眾地方公眾場所) which at first glance seems the same as the termrsquos
ordinary meaning in Chinese However a close examination would show that the
legal meaning of the term is not exactly the same since ldquothis expression occurs in
many Acts of Parliament which declare such and such a thing to be an offence if done
in a lsquopublic placersquo In each case the meaning depends upon the context and upon the
object of a statute A place may be a public place at one time and not at other timesrdquo
(Jowittrsquos p 1461) Strouds also has 21 entries for case law definitions and the Hong
Kong Ordinances also contained their own definitions99 The legal meaning of the
98 The term negligence has ldquotwo meanings in the law of tort it may mean either a mental element
which is to be inferred from one of the modes in which some torts may be committed or it may mean
an independent tort which consists of breach of a legal duty to take care which results in damage
undesired by the defendant to the plaintiff rdquo (Jowittrsquos p 1227) 99 Section 3 Interpretation of words and expressions of Chapter 1 INTERPRETATION AND
GENERAL CLAUSES ORDINANCE in the Hong Kong Ordinances stipulates
public place (公眾地方公眾埸所) means-
(a) any public street or pier or any public garden and
(b) any theatre place of public entertainment of any kind or other place of general resort
admission to which is obtained by payment or to which the public have or are permitted to have
access
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 173
term is thus heavily context-dependent100 It should be noted that translation of such a
semi-technical term usually needs much research on the part of the legal translator
including an examination of its different common law contexts
(b) For the second typemdashwhere part of the legal meaning of the term overlaps with its
core meaningmdashwe can once again use the ordinary Chinese equivalent plus lexical
expansion or we can create a new term The legal meaning of these terms can be
inferred from various interpretations of cases Therefore frequent reference to the
cases is a better way to understand meanings in different contexts Examples include
the following
Example 1 Discharge
The two main entries for ldquodischargerdquo in the official translations are jiechu or jieyue
(解除 or 解約) In its ordinary usage the core meaning of discharge is to relieve of
obligation responsibility etc In its legal usage meanings differ with different contexts
and part of the legal meaning overlaps with the ordinary meaning When used in the sense
of ldquoto discharge a right or obligationrdquo101 or to be ldquofreed from hellip debts provable in the
100 Roebuck (1995) also pointed out the different interpretation of the term in different contexts in the
Hong Kong case laws
The phrase lsquopublic or a section of the publicrsquo was discussed in Wong Pik-har [1987] HKLR 373
private premises may also be a public place A shop is a public place while it is open Ng
Chun-yip [1985] HKLR 427 Similarly the corridor of a domestic building is at all times a
public place hellip In Lam Shing-chow CA 18385 it was held that a common corridor on the
twelfth floor of a private building was not a public place because neither the public nor a section
of the public were permitted access to it (pp 164170) 101 For example in section 33 of Chapter 29 ldquoa good dischargerdquo is translated as ldquo充分的責任解除rdquo
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 174
bankruptcyrdquo (Jowittrsquos pp619-20)102 the existing Chinese equivalent jiechu (解除) was
adopted When used in the law of contract a discharge of contract means that the contract
is no longer binding Therefore another Chinese term jieyue(解約)103 was adopted to
express this concept
Example 2 Malice
The term ldquomalicerdquo is officially translated as eyi (惡意)104 When used as an ordinary
term malice means desire to cause pain injury or distress to another However this term
as applied to the common law does not necessarily mean that which must proceed from a
spiteful malignant or revengeful disposition but a wrongful act injurious to another The
Chinese equivalent eyi (惡意) also means spiteful mind but should be construed with
reference to its common law meaning105 We will further analyze in this section the
translation of malice in the context of translating the case law into Chinese to show the
significance of building a metalanguage and developing the semantic referential system of
the common law in Chinese
Example 3 Remainder
102 For example in section 30 of Chapter 401 ldquodischarge from bankruptcyrdquo is translated as ldquo解除債
務rdquo 103 For example in section 18 of Chapter 23 ldquodate of dischargerdquo is translated as ldquo解約日期rdquo 104 In Section 51 of Chapter 221 the Chinese version for the expression ldquostands mute of malicerdquo is ldquo出
於惡意而保持緘默rdquo 105 According to Jowittrsquos malice is ldquoa formed design of doing mischief to another technically called
militia praecogitata or malice prepense or aforethought hellip malice in common acceptance means
ill-will against a person but in its legal sense it means a wrongful act done intentionally without just
cause or excuserdquo (p 1136)
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 175
The official translation for the term ldquoremainderrdquo is shengyu quanyi (剩餘權益)
When used as an ordinary term remainder means something that remains or is left In its
legal usage remainder means the interest in land or property owned by a person who
enjoys no benefit from the property now but expects to come into possession in due
course of time and the term is thus used in rather technically in the law of property
Therefore a new compound term shengyu quanyi (剩餘權益) was created to express
this concept The term is obviously composed of two Chinese terms shengyu (剩餘
remaining) and quanyi (權益 interest)
(c) The third typemdashwhere the legal meaning of the term totally deviates from its ordinary
meaningmdashcan be treated in the same way as terms of the first type ie terms of art or
legal terms having a technical meaning The two major approaches are the creation of
a new term or the adoption of existing term with redefinition
Example 1 Abandonment
The other official translation for the term as used in the expression ldquonotice of
abandonmentrdquo is weifu tongzhi (委付通知)106 This legal meaning is totally different
from the core meaning It should be thus noted that ldquo the word lsquoabandonrsquo is one in
ordinary and common use and it in its natural sense well understood but there is not
a word in the English language used in a more highly artificial and technical sense
that the word lsquoabandonrsquo in reference to constructive total loss it is defined to be a
cession or transfer of the ship from the owner to the underwriter and of all his
property and interest in it with all the claims that may arise from its ownership and
all the profits that may arise from it including the fright then being earned (per Martin 106 We can find the term in Section 57 of Chapter 329 Marine Insurance Ordinance
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 176
B Rankin v Potter 42 LJCP 169 at p 200)rdquo (Stroudrsquos p 3) Therefore a new
Chinese term was created as the equivalent for this term in order to convey effectively
the common law legal concept
Example 2 Personal Representative
The official translation for the term ldquopersonal representativerdquo is yichan daili ren
(遺產代理人) The ordinary meaning of the term is a person who manages the affairs
of another In its legal usage it means ldquoexecutors and administrators whether acting
with regard to personal property or with regard to real propertyrdquo (Jowittrsquos p 1356)
This legal meaning deviates from the termrsquos ordinary meaning and a new Chinese
term was coined to express the concept instead of using its equivalent in Chinese as
ordinary term ie geren daibiao (個人代表)107
Example 3 Warranty
The two official translations of ldquowarrantyrdquo baozheng (保證) and baozheng tiaokuan
(保證條款) capture two different legal meanings The core meaning of the term is a
guarantee or assurance One of its legal meanings overlaps with the core meaning and is
thus translated as baozheng (保證)108 The other legal meaning is ldquoa subsidiary term in a
contract as distinct from a vital term which is called conditionrdquo (Jowittrsquos p 2979)109
107 Stroudrsquos interpretation of this term reads ldquothis phrase (except when otherwise controlled by a
context) is synonymous with legal representativerdquo (p 2014) 108 The heading Section 33 of Chapter 329 is ldquoNature of warrantyrdquo and the Chinese version reads ldquo保
證的性質rdquo 109 Section 2 of Chapter 26 gives the interpretation of the term ldquowarrantyrdquo
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 177
Thus in the law of contract warranty is different from condition since a breach of
condition justifies the termination of the contract while a breach of warranty does not110
This legal meaning deviates from the termrsquos core meaning and is thus officially translated
into baozheng tiaokuan (保證條款) which is a newly created compound term in Chinese
One might well think that baozheng tiaokuan (保證條款) has a close connection with
baozheng (保證) but as a matter of fact they express two different common law concepts
Another suggested translation is ciyao tianjian (次要條件) which is also a testimony to
the value of neologism and may convey the legal meaning of warranty against condition
more precisely111 In this case the creation of a new term would seem a better choice
Thus far we have illustrated the process of translating common law terminology
where adjustments of the Chinese legal vocabulary on the linguistic level and frequent
reference to the semantic referential system of the common law are both indispensable
It will be remembered that in section 61 of this chapter we have already provided a
summary of the metalinguistic tools that could be employed by the legal translator on
ldquowarranty (保證條款) means an agreement with reference to goods which are the subject of a contract
of sale but collateral to the main purpose of such contract the breach of which gives rise to a claim for
damages but not to a right to reject the goods and treat the contract as repudiated
(Amended 59 of 1989 s 20) 110 Lord Denning in Oscar Chess Ltd v Williams [1957] 1WLR 370 111 Zhao (1995) also discusses the translations of condition and warranty She remarks
In Chinese legal terminology we have zhuyao tiaokuan (主要條款 major terms) and ciyao
tiaokuan (次要條款 subordinate terms) But the Chinese contract law does not take the same
approach as Common Law to distinguish between terms in order to determine remedies hellip It
is submitted that the better choice will be the use of functional equivalents zhuyao tiaokuan
(主要條) and ciyao tiaokuan (次要條款) to express ldquoconditionrdquo and ldquowarrantyrdquo Both Chinese
terms can achieve the desired legal effects (pp 300-01)
Functional equivalence is not a good choice for translating the common law into Chinese since it
will result in confusion between the legal terms used in different legal systems
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 178
the conceptual level to effect cultural transfer Let us scrutinize these methods of
constructing a metalinguistic mechanism
(1) Appending translatorrsquos preface or footnote or any other commentaries or
explaining why and how the translation was done in related articles
The classic example here is the ldquoMemorialsrdquo in which Shen Jiaben expounded the
translated concepts of foreign laws already referred to in section 422 Especially
where the translation of Hong Kong Ordinances is concerned we find that legal
translators strive to spell out explanatory remarks identifying the translation objective
and approach and explain why and how the translation was done in related articles
The Bilingual Laws Information System (BLIS) is a valuable database of laws of
Hong Kong providing both English and Chinese versions of the current laws of Hong
Kong a glossary and other useful information which testifies to the impressive
translation project completed by the former Legal Department under the supervision
of the Bilingual Laws Advisory Committee (BLAC)112 The minutes of BLAC
meetings also serve as important metalanguage explaining how and why the
translations are made as shown by our discussions above Another method which is
particularly important is the translatorrsquos notes which he adds to the translated text to 112 Thus the Law Drafting Division of the Department of Justice as the statutory body of translating
the Common Law into Chinese has created as its flagship product the BLIS (Bilingual Laws
Information System) one of the largest ever legal databases and a valuable metalinguistic tool With its
many products including a CD-ROM English-Chinese Glossary of legal terms published in 1995 and a
Chinese-English Glossary of Legal Terms published in December 1999 the Law Drafting Division of
the Department of Justice has made very significant efforts to enhance the learning of common law
terminology and promote the Chinese semantic referential system of the common law It also writes
articles on bilingual legal issues for the well received magazine Hong Kong Lawyer
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 179
give some specifications or provide further information Necessary knowledge of the
context can be given more effectively through explanations in the text or in footnotes
But in translating the common law legislation this format may not prove practical If
we look at the current English Ordinances of Hong Kong we find that Chapter One
Interpretation and General Clauses Ordinance provides overall guidance on how to
interpret the Chinese equivalent for the English terminology with reference to the
common law context Every chapter also has a section headed ldquoInterpretationrdquo which
gives the proper construction of some English terms used in the ordinance
supplemented with their Chinese equivalents This is a significant step providing a
conceptual link between English terms and their Chinese equivalents and in fact
serves much the same function s a translatorrsquos note If we look at the ldquoDiscussion
Paper on the Laws in Chineserdquo prepared by the Attorney Generalrsquos Chambers of Hong
Kong we find there a statement concerning the use of metalanguage ldquothe
Interpretation and General Clauses Ordinance should be amended hellip to deal with the
problem of a discrepancy between the meaning of the English text of a law containing
an expression of the Common Law and the Chinese text using an expression which is
not one of the Common Lawrdquo Also the methodologies employed in the process of
establishing well-formed Chinese equivalents for common law terminology have been
clearly set out by the Law Drafting Division of the Department of Justice in a number
of articles in Hong Kong Lawyer the official journal of the Law Society of Hong
Kong113 113 An article provided by The Law Drafting Division of the Department of Justice examines the need
for the gradual development of standard Chinese terms to explain Common Law and statutory concepts
An extract reads
When selecting the Chinese term we must consider the lsquoadequacyrsquo and lsquoacceptabilityrsquo of the
term hellip Usually semantic mapping is used for legal translation There are two ways of semantic
mapping One is to employ an existing Chinese term to represent a Common Law concept The
other is to coin a new Chinese legal term by combining existing morphemes Bilingualism in the
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 180
(2) Translation of related legal works into Chinese
The following legal works have already been translated into Chinese (a) reports
of Chinese cases in the Hong Kong Law Reports and Digest and Hong Kong Cases (b)
important cases provided by the Judiciary and some law reports have been published
in both English and Chinese versions (c) Hong Kong Lawyer as the official
magazine of the Law Society of Hong Kong carries a section which provides the
Chinese translations of key legal phrases taken from judgments (d) several law
digests have been published including Chinese Digest of Hong Kong Contract
Law(1995) Chinese Digest of the Criminal Law of Hong Kong (1996)Chinese Digest
of the Criminal Procedure Law of Hong Kong (1996) and Chinese Digest of the
Common Law of Hong Kong114 In addition to the above works it is also desirable to
translate specialized Common Law dictionaries into Chinese such as A Dictionary of
Modern Legal Usage115 Strouds Judicial Dictionary of Words and Phrases and
compile books focusing on the legal concepts of Common Law such as Digest of Case
Law Principles
Common Law necessarily involves the use of Chinese A collection of Chinese Common Law
terms that are stable and clear will assist greatly in the development of bilingualism in the
Common Law For this purpose if there is standardisation of the translation of Common Law
concepts these concepts will be matched more readily with their Chinese equivalents This is
beneficial for the lsquorootingrsquo of the Common Law in the Chinese language and provides standard
Chinese references for Common Law concepts hellip Standardisation of the translations will
expedite the absorption of Common Law concepts by the Chinese language Standardisation of
translations for Common Law concepts is also beneficial for judicial interpretationhellip
Nevertheless a translation produced with due regard to all these factors will be much more
concerned with lsquoadequacyrsquo and may lack lsquoacceptabilityrsquo as it presently stands (in ldquoThe Common
Law and the Chinese Languagerdquo Hong Kong Lawyer February 1999) 114 This is a project conducted by Roebuck Derek and King-kui Sin 115 In its first edition A Dictionary of Modern Legal Usage became a classic in its field The first
comprehensive guide to legal style and usage it filled a gap in reference literature by giving practical
advice on how to write clear jargon-free legal prose
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 181
(3) Compiling an English-Chinese legal dictionary
Another efficient way to build the semantic referential system for the Chinese
equivalents of common law terms is to compile a dictionary with commentary We
have demonstrated that the basic requirement in translating terminology is to achieve
semantic equivalence However semantic equivalence alone is not enough since
meanings can often only be worked out when terms are considered in context and
when the cultural concept of terms is properly transferred Such contextual knowledge
can be supplied by amplifications in the translated text (footnotes) or separately in
appendices (glossaries) Adequate cross-referencing of entries thus seems an ideal
metalinguistic tool to establish a common law semantic reference system116 The
Hong Kong English-Chinese Legal Dictionary (2005) published by Butterworth is a
good recent example of its kind
To illustrate the two levels of cultural transfer and further justify the conceptual
transfer at the metalinguistic level further analysis of selected translations will be
furnished The foregoing discussion shows where new terms are created in Chinese
their meaning may seem transparent and can be easily identified Yet the reader still
needs to resort to metalanguage to understand the concepts of the newly-created terms
In translating semi-technical terms legal translators often employ lexical expansion
using an existing Chinese term to express the new common law concept This makes
it difficult for the reader to determine whether the term is common law Chinese or
116 Trsquosou amp Kwok (2003) also point out the immaturity of English-Chinese dictionaries in Hong Kong
There are many comprehensive English dictionaries of law (eg Garner 1999) but standard
references for legal Chinese in Hong Kong have not matured to the same level Most of them
exist in the form of a glossary with only very crude definitions if any (eg Department of
Justice 1998 Department of Justice 1999 Li amp Poon 2000) (p 612)
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 182
ordinary Chinese In such a case it is even more important to resort to metalanguage
as a mirror for cultural transfer at the conceptual level
The analysis of translated legal terms serves as the paradigm of cultural transfer
at the lexical level Discussions of translated legislative texts and judgments would
further illustrate the operation of cultural transfer In addition translation of the
judgments itself is of vital importance to construct the metalanguage since judgments
are not only important because they settle specific disputes and contain solutions to
legal problems but also because they have shaped much of the culture of the law ie
legal concepts and legal principles We shall take the example of translations of the
term ldquomalicerdquo in the legislation and case law as a simplified case to illustrate cultural
transfer on the textual level We will analyze how the legal concepts and legal
principles relating to ldquomalicerdquo are developed in the case law117
117 Poon (2005) points out that BLAC used to refer to the case law in defining the Common Law terms
She also uses the example of ldquomalicerdquo defined thus
In law an act is malicious if done intentionally without just cause or excuse (per Bayley J
Bromage v Prosser 4B amp C 255)
1 ldquoMaliciouslyrdquo means and implies an intention to carry out an act which is wrongful to the
detriment of another (Mogul Co v McGregor[1892] AC 25 (HL))
2 The word ldquomalicerdquo refers not to intention but to motive (R v Tolson (1889) 23 QBD 168)
3 Where any person wilfully carries out an act injurious to another without lawful excuse he
does it maliciously (per Lord Blackburn R v Pembliton (1874) LR 2 CCR 119)
4 Where a person has a malicious intent against another and in carrying it out injures a third
person he is guilty of malice against the person he has injured (per Coleridge v Latimer 17
QBD 359)
5 ldquoMaliciouslyrdquo in S 16 Offences Against the Person Act 1861 means ldquowilfully or intentionally
and without lawful excuserdquo (R v Mowatt [1968] 1 QB421)
6 For a person to be guilty of ldquomalicious woundingrdquo mere recklessness is not enough (W (A
Minor) v Dolbcy [1983] Crim LR681) (p 319)
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 183
Example 11 (legislation)
In an action for a libel contained in any newspaper it shall be competent to the defendant to set up
as a defence that the libel was inserted in the newspaper without actual malice and without gross
negligence hellip (Cap4 Sect 21)
The official translation is as follows
在因任何報刊刊載的永久形式誹謗而進行的訴訟中被告人有權提出在該報刊刊登的永久形
式誹謗並不含實際惡意亦無嚴重疏忽hellip(第 4 章 第 21 條)
We see that ldquomalicerdquo is translated as eyi (惡意) which is also an ordinary Chinese
term Evidently the legal translator has employed the technique of lexical expansion to
give it new meaning On the linguistic level the common law term ldquomalicerdquo has been
successfully encoded as eyi (惡意) in Chinese and we can appropriately say that eyi
(惡意) is the semantic equivalent of ldquomalicerdquo Now let us see how translations of the
excerpted case law transfer the legal culture at the metalinguistic level By translating
the excerpted judgments the concept of ldquoactual malicerdquo in the common law and
related legal principles especially in defamation cases can be transferred into
Chinese
Example 12 (judgment)
There are two sorts of malice malice in fact and malice in law the former denoting an act done
from ill-will towards an individual the latter a wrongful act intentionally done without just cause
or excuse118
118 Bayley J in Bromage v Prosser
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 184
Translation by the author is as follows
惡意分兩種事實惡意與法律上的惡意前者指對他人出自的惡意行為後者是蓄意的錯誤
作為且沒有確當的原因或辯解
Example 13 (judgment)
Express or actual malice is ill will or spite towards the plaintiff or any indirect or improper
motive in the defendants mind which is his sole or dominant motive for publishing the words
complained of
Translation by the author is as follows
顯明惡意或實際惡意是在被告的思想中對原告存有或非直接的不恰當的動機且此動機
為被告在發佈他所被控的言辭時獨有或主要動機
Example 14 (judgment)
Malice could also be established by inference if the court was satisfied that the defendant did not
believe what she said was true or she knew or believed that the defamatory statements were
false119
Translation by the author is as follows
惡意可被推定建立如法庭信納被告不相信她自己所說的是事實或她知道或相信誹謗的陳述
是假的
119 HO PING KWONG V CHAN CORDELIA [1989] 2 HKC 415
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 185
Example 21 (legislation)
Where a person kills another in the course or furtherance of some other offence the killing shall
not amount to murder unless done with the same malice aforethought (express or implied) as is
required for a killing to amount to murder when not done in the course or furtherance of another
offence (Cap339 Sect 2)
The official translation is as follows
(1) 凡殺人行為並非在犯其他罪行的過程中或為了進行其他罪行而作出而該殺人行為
必須具備某種(不論是明示或默示的)的預懷惡意(下稱ldquo前述預懷惡意rdquo)方足以構成謀
殺罪則任何人如在犯其他罪行的過程中或為了進行其他罪行而殺死他人其殺人
行為除非具備與前述預懷惡意相同的預懷惡意否則不構成謀殺罪(第 339 章 第 2
條)
When faced with such a legislative text the legal translator must delve into the
cultural concepts of the specified legislation in order to produce a Chinese legal text
with the same meaning The ordinance belongs to an important branch of the
Common Lawmdashthe criminal law and deals with one offence in criminal law murder
The doctrine presumes malice aforethought on the basis of the commission of a felony
inherently dangerous to human life Now let us look at how the concept of ldquomalice
aforethoughtrdquo is defined in the case law120
120 Roebuck (1995) also explained malice aforethought (express or implied) in his Hong Kong
Criminal Law which provided the Chinese translation of the judicial interpretations lt杀人罪條例gt第 2 條第(1) 款提到ldquo明示的或默示的rdquo 惡意預謀明示的惡意指殺人的故
意默示的惡意指重傷的故意[見常威強 Tsang Wai-keung(1973)]HKLR 159 一案 (p 84)
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 186
Example 22 (judgment)
There is no doubt that murder is killing with malice aforethought and there is no doubt that
neither the word malice nor the word aforethought is to be construed in any ordinary sense
The whole phrase is to be interpreted according to principles that have been laid down in
decided cases Next it is clear that there is malice aforethought if a person kills with intent to kill
or do grievous bodily harm see R v Vickers121
Translation by the author is as follows
毫無疑問謀殺就是ldquo有預懷惡意的rdquo 殺人且毫無疑問的是ldquo惡意rdquo 一詞與ldquo預懷rdquo 一詞都不
可用它們平常的意思來理解這個詞組應按照先例中定下的法律原則來解釋其次很明
顯凡有人意圖殺人或嚴重傷人必有預懷惡意存在
Example 23 (judgment)
We are not here concerned with the meaning of malice in the Common Law definition of murder
still less with its meaning in relation to the law of libel and slander where indirect motive is of
importance There is no case other than R v Syme and R v Johnson (with which we will presently
deal) in which it has ever been suggested that indirect motive has anything to do with the
meaning of the word maliciously in Acts creating criminal offences122
Translation by the author is as follows
在此我們並不是要討論在惡意一詞在普通法謀殺罪定義中的意思更不是要討論它在誹謗
法中的意思在這兩者中非直接的動機佔有重要位置 沒有其他案例能象在 R v Syme
121 All England Law Reports1973Volume 3 R v Hyam - [1973] 3 All ER 842 122 All England Law Reports1969Volume 3 R v Solanke - [1969] 3 All ER 1383
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 187
和 R v Johnson 案件中(這是我們目前審理的案件)非直接的動機與ldquo惡意地rdquo 一詞在法例
中構成刑事罪行的意思更為相關
We can observe that the common law standard of malice generally required the
tort law to support an award of punitive damages In the law of slander we can see
that malice is one of the elements of liability and the plaintiff may meet a case of
privilege thus made out on the part of the defendant by proving actual malice that is
actual intent to cause the damage complained of In dealing with the criminal law an
act malicious in common speech means that harm to another person was intended to
come of it and that such harm was desired for its own sake as an end in itself
Therefore as discussed in section 61 legal translation as cultural transfer takes place
at two levelsmdashlinguistic level and conceptual level When translating the term
ldquomalicerdquo in the legislation the legal translator produces the Chinese equivalent for the
term on the linguistic level by adjusting the translating language Metalinguistic
devices should be built in order to transfer all the cultural elements behind this legal
term into Chinese One effective method is to translate the judgments related to the
legal concept under review The above translations of excerpted legislation and
judgments serve as a simple example of the type of work needed to establish the
metalanguage of the common law in Chinese
Using study of cultural transfer in legal translation in this thesis as its basis a
more comprehensive examination of the translation of legislation and judgments
relating to legal terminology could be an interesting field of further research This
might include the translation of legislation and judgments relating to legal
terminologies studied previously such as abandonment fee simple chose in action
chattel confession and warranty to name a few To conclude transfer of the culture
of the common law into Chinese requires adjustments on both the linguistic and
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 188
conceptual level in particular the building of metalinguistic tools in Chinese until the
whole semantic reference system of common law Chinese is eventually laid bare
Chapter 7
Concluding Remarks
We began this study by reflecting on the notion of cultural transfer in translation theory
As noted in the introductory chapter translation theorists expended much effort in developing
theories centering on linguistic transcoding especially on linguistic equivalence The
characterization of translation as cultural transfer is an outcome of the cultural turn in
translation theory
We have particularly in section 21 noted that the notion of cultural transfer when
employed to characterize translation as a socio-cultural activity as opposed to a mere act of
linguistic transcoding can be understood in two diametrically opposite senses On the one
hand it is taken to mean the mapping of cultural elements of the source text onto their
equivalents in the culture of the target text On the other hand it is taken to mean the
importation of the source culture into the target culture which necessitates linguistic and
conceptual adjustments of the translating language Understood this way translation as
cultural transfer requires that a choice be made between the two basic translation strategies
ie domestication and foreignization The cultural concepts of the source language may be
either domesticated in order to facilitate cross-cultural communication or foreignized by
making both linguistic and conceptual adjustments of the target language As has been
pointed out in section 22 translation as cultural transfer is no longer a matter of finding
linguistic equivalents between languages but rather an operation of creating conceptual
semantic equivalence on the metalinguistic level Thus understood foreignization is simply a
metalinguistic operation whereby cultural transfer is effected
CONCLUDING REMARKS 190
The clarified notion of cultural transfer is vital for understanding legal translation as
cultural transfer both in respect of its theoretical foundations and practical applications In
section 22 we noted that when translating a legal text for the purpose of producing another
authentic version of the same text the legal translator is bound to foreignize the language of
the latter version to a certain extent in order to establish semantic equivalence between the
two versions Translation of the common law into Chinese thus serves as a paradigm of
cultural transfer in legal translation
That being the case our understanding of legal culture must be carefully reconditioned
by its practical reference to the common law and account for the evidence of its transference
in the legal text itself As analyzed in section 31 the very notion of legal culture has been
understood in previous studies either as peoplersquos conceptions of law or the combination of
peoplersquos conceptions and practices of law However it is not possible for the legal translator
to deal with legal culture in the sense of the practices and behaviors by legal professionals as
the final encounter of the legal translator is the legal text which embodies peoples conception
of law The aspect of legal culture which informs and underpins legal translation is the
conceptual thinking shared by legal professionals We argued in section 33 that the common
law is a deep-rooted historically molded conceptual thinking shared by legal professionals
Its legal culture is mainly reflected in two aspects legal concepts and legal principles We
also investigated in section 34 the legal culture of traditional and modern Chinese law
showing that borrowing from other legal systems and transfer of foreign laws into China has
shaped the modern Chinese law
In our analysis in section 41 of the transfer of legal culture we classified legal
transplant into two kinds legal imposition at the socio-political level and legal translation at
the socio-linguistic level On the one hand a fairly wholesale transplantation of legal system
CONCLUDING REMARKS 191
is possible for socio-political reasons even without any translation of the imported law into
the indigenous language On the other hand it is often through legal translation that foreign
laws are introduced to the indigenous people at the socio-linguistic level Compared with
legal imposition legal translation is a more fruitful way of legal transplant and cultural
transfer as is evident from Chinarsquos long history of legal translation It has also been shown in
our analysis of the memorials prepared by legal translators that the successful transfer of a
legal culture always requires the adjustments of the translating language by means of
metalinguistic devices
As this study is both a theoretical inquiry and a case study chapter 5 examined the
specific features of the common law language in which the legal concepts and legal principles
are embodied We argued that differences between the Chinese language and common law
English should not be emphasized at the expense of the translatability of the common law
legislation into Chinese Legislative translation is no doubt a limiting case of translation For
it is mandated by law that its different language texts must convey the same legal meaning so
as to regulate the same social behaviour among the people it governs If this condition cannot
be satisfied if it can be shown that equivalence in meaning is in principle unattainable then
not only will legislative translation become a futile endeavour but the foundation of all
multilingual legal systems will also collapse
To show how semantic equivalence is possible in legislative translation we proposed in
section 61 a theoretical framework for effecting cultural transfer at two different levels One
is linguistic transfer ie transfer at the linguistic level which involves the adjustments of the
Chinese language and the other is conceptual transfer at the metalinguistic level We then
carried out a detailed analysis of selected translations The focus is placed on the analysis of
the translation of common law terminology We made clear in section 62 how the two levels
CONCLUDING REMARKS 192
of transfer take place Not only should the legal translator produce the Chinese equivalents on
the linguistic level by adjusting the Chinese language but with the use of metalanguage
heshe transfers the cultural concepts into Chinese and establishes the semantic reference
system for common law Chinese ie a special domain of the Chinese language developed
for incorporating the common law
Basing our views on the works of legal and translation scholars in Hong Kong we have
shown in this study that equivalence in meaning indeed does not exist between languages as
they stand This has led many to dismiss the whole notion as illusory However equivalence
in meaning is by nature not a descriptive term Rather it is a stipulative term That is to say
two terms are equivalent in meaning if and only if they are stipulated to be so Equivalence in
meaning is established by the metalinguistic device of definition It is created not found In
the case of legislative translation this metalinguistic device operates on the legislative level
ie as part of the legislative process In other words in legislative translation equivalence in
meaning between the different language texts of the law is established by legislation not
through translation on the object-language level
Translation is of course not merely a matter of language Many things are involved in
the process Nevertheless however complicated the process is translation is invariably a
process beginning with a text and ending with another textmdashit is always from language to
language always a cross-linguistic event Whether we call this transcoding or recoding
translation remains essentially an operation with words Even when one follows cultural
theorists such as Vermeer and Snell-Hornby and re-labels translation a cross-cultural event
what we see in the end-product ie the target text remains a matter of words The
dichotomy between translation as transcoding and translation as cultural transfer is as has
CONCLUDING REMARKS 193
been shown in this study totally misguided There can be no cultural transfer without
transcoding as culture is for the most part embodied in language
As with translating Buddhist scriptures into Chinese translating the common law into
Chinese is a paradigm case of cultural transfer But again legal culture is illusory unless and
until it is embodied in language We have shown that the culture of the common law covers
the whole conceptual framework and socio-cultural background whereby the various
components of the common law are understood Part of that culture manifests itself in the
mere form of words and has to be preserved by following the same form of words in the
translation In such cases translating words is at the same time translating culture The
dichotomy between word and sense on the one hand and between word and culture simply
breaks down here But a large part of the culture of the common law can only be found
beyond the words of the law That part like equivalence in meaning cannot be handled by
translation on the same object-language level It must be handled either at the metalinguistic
level or in a separate object-level translation Once we have a clear view of how language
works and how it can be used to do what we want it to do many of the problems in
translation studies can be clarified and resolved
If this study can help clarify some of the fundamental problems concerning the notion of
translation as cultural transfer it will have achieved its intended skopos
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Cao D (2004) Chinese law a language perspective Aldershot Hants England
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Danet B (1980) Language in the legal process Law and Society Review 14 3
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198
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amp Maxwell
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Harding A (2001) Comparative law and legal transplantation in South East Asia
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Hiltunen R (1990) Chapters on legal English Aspects past and present of the
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Lefevere A Bassnett S Eds (1990) Translation History and Culture London and
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Lloyd D (1964) The idea of law Harmondsworth Penguin Book
Lloyd-Bostock S M (1979) Explaining compliance with imposed law In SB
Burman amp B E Harrell-Bond (Eds) The Imposition of law (pp9-26) New
York Academic Press
201
Maley Y (1994) The language of the law In J Gibbons (Ed) Language and the
Law Longman Singapore Publishers (Pte) Ltd
Meijer M J (1976) The introduction of modern criminal law in China Arlington
Va University Publications of America
Mellinkoff D (1963) The Language of the Law Little Brown amp Co Boston
Merryman J H (1985) The civil law tradition an introduction to the legal systems
of Western Europe and Latin America Stanford Calif Stanford University
Press
Munday J (2001) Introducing translation studies Theory and applications
Routledge London and New York
Newman A (1980) Mapping translation equivalence London Academic Publishing
Company
Newmark P (1982) Approaches to translation Pergamon Institute of English
Newmark P (1988) A textbook of translation Prentic Hall International English
Language Teaching
Nguessan K M (1995) Explorations in interlingual legal communication a
comparison of American and French terminologies Ann Arbor Mich UMI
Nida E A (1964) Toward a science of translating with special reference to
principles and procedures involved in Bible translating Leiden E J Brill
Nida E A (1975) Exploring semantic structures Wilhelm Frink Verlag
Munchen
Nida E A amp Taber CR (1969 1982) The theory and practice of translation
Leiden E J Brill
Nida E A amp Waard J de (1986) From one language to another Functional
equivalence in Bible translation Nashville Thomas Nelson
202
Nord C (1997) Translating as a purposeful activity functionalist approaches
explained Manchester St Jerome
Okoth-Ogendo H (1979) The imposition of property law in Kenya In SB Burman
amp B E Harrell-Bond (Eds) The Imposition of law (pp147-166) New York
Academic Press
Ogden C K amp Richards I A (1923) The meaning of meaning A study of the
influence of language upon thought and of the science of symbolism London
Routledge amp Kegan Paul
Paler L (2005) Chinarsquos Legislation Law and the Making of a More Orderly and
Representative Legislative System The China Quarterly 302
Peirce C S (1931-1958) Collected papers of C S Peirce C Hartshorne P Weiss
amp A Burks (Eds) 8 volsHarvard University Press Cambridge MA
Poon WY (2005) Cultural transfer in legal translation International Journal for the
Semiotics of Law 18 307-323
Potter P B (2004) Legal reform in China Institutions culture and selective
adaptation Law and Social Inquiry 29 465-487
Pound R (1939) The history and system of the common law New York P F
Collier
Roebuck D (1990) The Background of the Common Law Hong Kong Oxford
University Press
Roebuck D (1991) Law in a foreign language the Hong Kong experience
Catalunya [Spain] Escola dAdministracio Publica
Roebuck D amp Sin K K (1993) The ego and I and ngo Theoretical problems in
the translation of the common law into Chinese In R Wacks (Ed) China
Hong Kong and 1997 Essays in legal theory (185-210) Hong Kong Hong
Kong University Press
203
Roebuck D Ed (1995) The Criminal law of Hong Kong A descriptive text Beijing
Peking University Press
Robinson D Ed (1997) Western translation theory From Herodotus to Nietzsche
Manchester St J
Sacco R (1991) Legal formants A dynamic approach to comparative law American
Journal of Comparative Law Vol 39 No 1 pp 1-34
Sager J C (1990) A practical course in terminology processing Amsterdam
Philadelphia John Benjamin Publishing Company
Sager J C (1997) Text types and translation In A Trosborg (Ed) Text Typology
and Translation (pp25-43) AmsterdamPhiladelphia John Benjamins
Publishing Company
Sarat A amp Kearns T R Eds (1999) Cultural pluralism identity politics and the
law University of Michigan Press
Sarcevic S (1997) New approach to legal translation The Hague Longdon Boston
Kluwer Law International
Sarcevic S (2000) Legal Translation and Translation Theory A
Receiver-Oriented Approach httpwwwtradulexorgActes2000sarcevicpdf
Saussure F d (1857-1913) Course in general linguistics C Bally A Sechehaye amp
A Riedlinger (Eds) R Harris(Trans) (1986) LaSalle IllOpen Court
Schleiermacher F (1799) On the different methods of translating In D Robinson
(Ed) Western Translation Theory from Herodotus to Nietzsche Manchester
St Jerome Pub
Searle J R (1969) Speech acts An essay in the philosophy of language Cambridge
UK Cambridge University Press
Searle J R (1979) Expression and meaning Cambridge UK Cambridge University
Press
204
Shum C (1992) General principles of Hong Kong Law Hong Kong Longman
Sin K K (1989) Meaning Translation and Bilingual Legislation In P Pupier amp J
Woehrling (Eds) Proceedings of First International Conference on Language
and Law 509-515
Sin K K (1992) The translatability of law In HT Lee (Ed) Chinese Linguistics in
Hong Kong (pp87-101)
Sin K K amp Roebuck D (1996) Language Engineering for Legal Transplantation
Conceptual Problems in Creating Common Law Chinese In R Harris (Ed)
Language and Communication Vol 16 No3 235-254
Sin K K (1998) The common law in uncommon Chinese Linguistic anomalies and
cultural shocks Journal of Translation Studies No2 127-140
Sin K K (1998) The missing link between language and law Problems of
legislative translation in Hong Kong In Proceedings from the Sixth
International Conference on Law and Language No 36
Snell-Horny M (Ed) (1986) Ubersetzungswissenschaft ndash Ein Neuorientierung
Zur Integrierung von Theorie und Praxix Turbigen Francke
Snell-Hornby M (1988) Translation studies an integrated approach Amsterdam J
Benjamins
Snell-Hornby M (1990) Linguistic transcoding or cultural transfer A critique of
translation theory in Germany In S Bassnett amp A Lefevere (Eds) Translation
history and culture London and New York Pinter Publishers
Snell-Hornby M (1992) Translation as Cultural Shock Diagnosis and Therapy
Wei Lun Lecture Series IV Lecture delivered at the Chinese University of
Hong Kong December 1992
205
Snell-Hornby M (1998) Translation as a cross-cultural event Midnightrsquos
ChildrenmdashMitternachtskinder In G Toury (Ed) Translation across cultures
Bahri Publications
Snell-Hornby M (2006) The turns of translation studies John Benjamins Publishing
Company AmsterdamPhiladelphia
Solan ML (1993) The language of Judges Chicargo The University of Chicago
Press
Summers R S (2000) Essays in legal theory Dordrecht Kluwer Academic
Publishers
Su L (2004) Perhaps it is taking placemdashthe science of law of China in the
transitional period Beijing Law Press
Svarverud R (1998) Methods of the way early Chinese ethical thought Leiden
Boston Brill
Swales J (1981) Aspects of article introductions Birmingham England LSU
University of Aston
Taylor C (1998) Language to language A practical and theoretical guide for
Italian and English translators Cambridge University Press
Thornton G C (1979) Legislative drafting LondonButterworths
Tiersma P M (1999) Legal language Chicargo the University of Chicargo Press
Toury G (1980) In search of a theory of translation Tel Aviv Porter Institute
TouryG (1995) Descriptive translation studies and beyond Amsterdam J
Benjamins Pub
Toury G (2007) Culture planning and translation (in press) Forthcoming in A
Alvarez et al (Eds) Proceedings of the Vigo Conference anovadores de noacutes -
anosadores de voacutes
206
Trosborg A (1997) Text typology Register genre and text type In A Trosborg
(Ed) Text typology and translation (pp3-24) AmsterdamPhiladelphiaJohn
Benjamins Publishing Company
Trsquosou B K amp Kwong OY (2003) When laws get common Comparing the use of
legal terms in two corpora In Language and Linguistics 43 609-629
Ujejski T (1989) The future of the English language in Hong Kong law In Wacks
Ramond (Ed) The future of the law in Hong Kong (pp164-188) Hong
Kong Oxford University Press
Yu XZ (2004) Law and legal interpretation Law and politics book review Vol 14
No 5 305-311
Vandevelde K J (1996) Thinking like a lawyer An introduction to legal reasoning
Westview Press
Varga C (1992) Comparative legal culture Dartmouth Publishing CoLtd
Venuti L Ed (1992) Rethinking translation discourse subjectivity ideology
Routledge London
Venuti L (1995) The Translatorrsquos invisibility A history of translation Routledge
London
Vermeer H J (1986) Ubersetzen als kultureller Transfer In M Snell-Horny (Ed)
Ubersetzungswissenschaft ndash Ein Neuorientierung Zur Integrierung von
Theorie und Praxix Turbigen Francke 30-53
Vermeer H J (1996) A Skopos theory of translation some arguments for and
against Heidelberg [Germany] Textcontext
Wacks R (1989) (Ed) The future of the law in Hong Kong Hong Kong Oxford
University Press
Watson A (1974) Legal transplants An approach to comparative law Edinburgh
Scottish Academic Press Ltd
207
Watson A (1991) Legal culture v Legal tradition American Journal of
Comparative Law 39
Watson A (2001a) Legal transplants and European private law Electronic Journal
of Comparative Law (December 2000) Vol 44 Website
httpwwwejclorgejcl4444-2html
Watson A (2001b) The evolution of western private law Baltimore The Johns
Hopkins University Press
Watson B (1998 April) Have our English language documents passed their
lsquouse-byrsquo date Hong Kong Lawyer 1998 23
Wesley-smith P (1993) The common law of England in the Special Administrative
Region In R Wack (Ed) Hong Kong China and 1997 essays in legal theory
(pp5-40) Hong Kong Hong Kong University Press
Wesley-smith P (1994) The sources of Hong Kong law Hong Kong Hong Kong
University Press
White JB (1990) Justice as translationmdashAn essay in cultural and legal criticism
The University of Chicago Press
Willliam R (1961) Culture and society 1780-1950 Harmondsworth Penguin
Wilss W (1982) The science of translation problems and methods Tubingen
Gunter Narr Verlag
Wong K C (1998) The Behavior of Qing Dynasty Speech Crime Law in China A
Cross-Cultural Application of Blackrsquos Theory of Law A Bell and Howell
Information Company Ann Arbor MI
Wong H M (1999 November) The myth of legal bilingualism in Hong Kong Hong
Kong Lawyer 31-32
208
Chinese Works
蔡奇林 (2002) lt六群比丘」與「六眾苾芻」 - 兼談佛典仿譯及其對漢語的影
響gt 「漢文佛典語言學國際學術研討會」論文 佛學研究中心學報 2004
年第 9 期台北市 台灣大學文學院佛學研究中心
httpccbsntuedutwFULLTEXTcfb_cbsj-2htm
何勤華等編著 (1994) 中西法律文化通論 復旦大學出版社
江必新 (2003) 中國法文化的淵源與流變 北京市 法律出版社
金聖華冼景炬 (2004) 香港法律中譯的幾個問題 翻譯學報 2004 年第九期
香港 香港中文大學翻譯系
梁治平主編 (1994) 法律的文化解釋 生活`讀書`新知三聯書店
劉作翔 (1999) 法律文化理論 北京商務印書館
沈達明編著 (1993) 英美合同法引論 北京對外貿易教育出版社
楊楨 (1997) 英美契約法論 北京北京大學出版社
周長齡 (1997) 法律的起源 北京中國人民公安大學出版社
張德美 (2003) 晚清法律移植研究 北京清華大學出版社
張晉藩 (1992) 清律研究 北京法律出版社
趙秉志主編 (1996) 香港刑法 北京 北京大學出版社
張中秋 (2003) 比較視野中的法律文化 北京市 法律出版社
iii
of the problems involved in the translating process in question it is hoped that this
study will shed some light on the question of cultural transfer and more importantly
on the nature of legal translation
This thesis is divided into two major parts Part I consists of four chapters that
provide the theoretical framework and historical background for the study Chapter 1
sets out the scope and methodology of this study by way of a brief critical account of
studies in translation theory and legal translation Chapter 2 traces the evolution of the
concept of cultural transfer in translation theory clarifies the opposed senses in which
is understood by exploring the dichotomy of domestication and foreignization and
argues why legal translation in the context of Hong Kong cannot be a case of
domestication Chapter 3 investigates the various senses of legal culture and
highlights the essential features of the legal culture of the common law Chapter 4
gives a brief historical account of the importation of foreign laws into China since the
Late Qing period (晚清) as a typical case of transfer of legal cultures examining what
such transfer involved in the process Part II is the case study of the translation of the
common law into Chinese in Hong Kong Chapter 5 examines the translatability of
the common law and analyzes the specific features of the common law language from
the aspects of its terminology legislation and case law Chapter 6 begins with a
critical analysis the problems relating to law translation in general and translating the
common law into Chinese in particular It then sets out the theoretical framework for
effecting cultural transfer It examines in detail the nature of cultural transfer in law
translation with special reference to the translation of common law terminology
Chapter 7 summarizes the study and makes some concluding remarks on its
significance for translation studies as well as its potential for future research
iv
Acknowledgments
Research is a journey of exploration Writing this dissertation has been a
challenging intellectual journey accompanied by moments of frustration
disorientation and even self-doubt One person my supervisor Dr Sin King-kui has
guided me through the twists and turns of this journey But for his patience mentoring
and encouragement I could not have completed this dissertation nor could I have
appreciated both the rigours and the joys of true scholarship He has my deepest
gratitude
I must also thank Dr Zhu Chun-shen and Dr Cheng Po-suen of my Qualifying
Panel for their valuable comments on the draft of the dissertation as well as their
unfailing support throughout my candidacy I should like too to thank the friendly
staff of the General Office of the Department who have given me enormous clerical
support in the course of my research
My thanks also go to my colleagues in the Department of Translation The
Chinese University of Hong Kong for their kind concern during the progress of my
research and their warm words of encouragement
I would like to extend a special note of thanks to my teachers in the Department
of Foreign Languages and Literature Fudan University for introducing me to the
beauties and intricacies of translation In particular I would like to thank Prof Huang
Yong-min Prof Lu Gu-sun Prof Xiong Xue-liang and Prof He Gang-qiang for
helping and encouraging me in my pursuit of further translation studies
v
I am also grateful to my fellow students and dear friends Kiki Baby Ace Sarah
Samantha Joyce Beatrice Xiao Hu Zhang Wan-min Wu Qing Shen Yuan Jiang
Qin Wen Stella Edison April Wu Xiao Sting and Lois for sharing the pains and
joys of my study
Finally I owe more than I can say to my husband Alex my sister Ciecely and
other family members for their love and unfailing support I thank my parents from
the bottom of my heart for their faith in me and for the love and support that enabled
me to embark on an academic career It is to them both that I dedicate this humble
piece of work
vi
TABLE OF CONTENTS
Title Page i
Abstract ii
Acknowledgments iv
PART I
Theoretical Framework and Historical Background
Chapter 1 Introduction 1
11 Translation Theory From Interlingual Translation to Intercultural
Translation 1
12 The Emergence of Cultural Transfer in Translation Theory 4
13 Legal Translation Theory In Search of Goal and Strategy 8
14 Rationale for the Study 12
Chapter 2 Translation as Cultural Transfer 14
21 Clarification of the Notion of Cultural Transfer 14
211 Cultural Transfer vs Transcoding 14
212 Vermeerrsquos View of Translation as Cross-cultural Transfer 24
213 Snell-Hornbyrsquos View of Translation as Cultural Transfer 28
214 Domestication vs Foreignization 35
vii
22 Legal Translation as Cultural Transfer 40
221 Legal Transplant and Legal Translation 40
222Translating the Common Law into Chinese as Cultural Transfer 46
223 Metalinguistic Devices and Cultural Transfer in Legal Translation 51
Chapter 3 The Concept of Legal Culture in Legal Translation 57
31 Previous Studies of Legal Culture 57
311 Law and Culture 57
312 Legal Culture as Conceptions of Law 62
313 Legal Culture as Both Conceptions and Practices of Law 66
32 Clarification of the Concept of Legal Culture 69
33 The Legal Culture of the Common Law 73
34 The Legal Culture of Traditional and Modern Chinese Law 77
Chapter 4 The Transfer of Legal Culture 89
41 Legal Transplant and Transfer of Legal Culture 89
411 Introduction 89
412 Legal Transplant Legal Imposition and Legal Translation 92
42 Transfer of the Legal Culture of Foreign Laws in China 98
421 Transplant of Foreign Laws since Late Qing Dynasty in China 98
422 Transfer of the Legal Culture of Foreign Laws in China 103
viii
PART II
Case Study of the Translation of the Common Law
into Chinese in Hong Kong
Chapter 5 The Language of the Common Law 106
51 The Translatability of the Common Law 106
52 Legal Terminology and Legal Concepts 112
53 The Language of the Legislative Texts and Bilingual Legislation 120
54 Case Law Languagemdashthe Language of Judges 133
Chapter 6 Cultural Transfer in Translating the Common Law into Chinese
61 Transfer of the Legal Culture of the Common Law 142
611 Problems in Translating the Common Law into Chinese 142
612 Legal Translation as Cultural TransfermdashTwo Levels of Transfer 152
62 Cultural Transfer in Translating the Common Law into Chinese
-- Analysis of Selected Translations 159
Chapter 7 Concluding Remarks 189
Bibliography 194
Chapter 1
Introduction
11 Translation Theory From Interlingual Translation to Intercultural
Translation
Traditionally regarded as a sub-field of linguistics translation was for a long
time treated as an important means of interlingual communication As Jakobson (1959)
put it ldquotranslation properrdquo was the transposition of a text from one language to
another ldquointerlingual translationrdquo as he called it ldquoinvolves two equivalent messages
in two different codesrdquo However he conceded that there was no full equivalence
between code units (1959 p 233) Jakobsonrsquos view was shared by theorists like
Catford and Nida who emphasized transference of meaning across languages and the
resultant linguistic equivalence Fidelity to the original text was considered the most
important principle governing translation and the search for best equivalence became
its primary goal Translation studies in this period stressed the textual elements
Catford for instance emphasized the correspondence of lexicon and grammar (1965)
Nida and Taber classified ldquoformal correspondencerdquo and ldquodynamic equivalence as two
major types of equivalence ldquoFormal correspondencerdquo is concerned with the message
itself and ldquodynamic equivalencerdquo with the effect (1964 1982) They acknowledged
that there were not always formal equivalents between language pairs Focusing on
the language function and relating linguistic features to the context of both the source
and target text House (1977) set out his notions of semantic equivalence and
pragmatic equivalence and proposed that the function of a text be determined by the
situational elements of the source text A more elaborate discussion of the notion of
INTRODUCTION 2
equivalence can be found in Baker (1992) who examined the notion of equivalence at
four different levels in relation to the translation process ie the word level the
grammatical level the textual level and the pragmatic level Taken together these
levels encompass all aspects of translation process
While characterizing translation as an interlingual rather than a socio-cultural
activity scholars such as Catford and Nida did not lose sight of the role that cultural
elements play in the process of translating Catford drew a distinction between
ldquocultural untranslatabilityrdquo and ldquolinguistic untranslatabilityrdquo (1964 pp101-03) Nida
examined cultural problems in translating (1981) Newmark (1988) in particular
examined untranslatable culturally specific items and put them into different
categories (p 95) However he rejected the ldquoprinciple of equivalencerdquo underlying
Nidarsquos theory of dynamic equivalence and suggested two approaches to translation
namely communicative translation which aims to produce on the target reader effects
similar to those on the source reader and semantic translation which aims to render
ldquoas closely as possible the semantic and syntactic structures of the second languagerdquo
(1988 pp 39-41) The former gives priority to the response of the target language
reader while the latter foregrounds the meaning of the original The appropriateness of
these two methods depends on the text-type and the purpose of the translation
The cultural dimension is central to both the polysystem theory of Zohar (1990)
and Touryrsquos (1980) descriptive approach The polysystem theory treats any semiotic
(poly)system (such as language or literature) as a component of a larger (poly)system
or culture Translated literature is therefore a system operating as a part of larger
social cultural and historical systems of the target culture The correlations between
literature and other cultural systems for instance language society or ideology could
INTRODUCTION 3
be seen as a functional relationship within a cultural whole By employing the notion
of norm in his treatment of translation criticism Toury (1980) pointed us in a new
direction for translation studies As he sees it translation criticism consists in the
study of metatexts produced in a given receiving culture under certain discernible
socio-cultural constraints Translation criticism therefore performs the task of
reconstructing such constraints as are operative in a particular translation It sets out to
identify constraints of translation behaviour describe the decision-making process the
translator has gone through and formulate hypotheses capable of being tested by
further studies Touryrsquos idea can be said to have inspired the ldquocultural turnrdquo in
translation studies in the 1990s
It was around this time too that translation theory began to undergo a rather
radical transformation Translation was increasingly seen as involving a conscious act
of manipulation that moved the author toward the reader and made texts as palatable
in the target language and culture as they were in the source language and culture The
ideals of equivalence and faithfulness were now being seriously questioned The
cultural turn in translation studies shifted away from purely linguistic analysis
redefining translation as intercultural communication and focusing on the
socio-cultural and ideological dimensions of translating For Lefevere (1992)
translation was essentially rewriting and manipulation He remarked
On every level of the translation process it can be shown that if linguistic considerations enter
into conflict with considerations of an ideological and or poetological nature the latter tend to
win out (p 9)
INTRODUCTION 4
Another cultural theorist Venuti (1995) who drew a distinction between
domestication and foreignization also insisted that translation must take into account
the value-driven nature of the socio-cultural framework within which it is carried out
Culture and cultural elements are no longer seen as impediments to successful
linguistic transfer Rather culture is an encompassing framework within which
effective translation operates The cultural turn widens the scope of translation by
revealing that the translator not only works with the language pair in question ie the
source text and the target text but also with the two cultures ie the source culture
and the target culture Translation is now considered a purposive activity The
outcome or product of translation is understood in a wider context and the factors
affecting the translatorrsquos decision making process are given special emphasis
12 The Emergence of Cultural Transfer in Translation Theory
The characterization of translation as cultural transfer is an outcome of the trend
mentioned in section 11 According to Vermeerrsquos (1996) skopos theory translation is
a cross-cultural transfer a form of human interaction determined by its purpose or
ldquoskoposrdquo Following Vermeer Snell-Hornby (1988) denounced linguistic transfer as
inadequate contending that translation should instead be seen as a cross-cultural event
Translation as cultural transfer has become a dominant view resulting from the
ldquocultural turnrdquo in translation theory and a ldquoshift of emphasisrdquo from ldquoformalist phaserdquo
to ldquobroader issues of context history and conventionrdquo (Bassnett 1998 p 123)1
1 Back in 1990 Bassnett and Venuti observed that major changes in translation studies had taken place
They remarked
INTRODUCTION 5
Hatim (2001) also labelled this ldquoinfluential trend in recent translation studiesrdquo as ldquothe
cultural modelrdquo an approach contrary to the linguistic model which dominated early
translation studies in the last century (p 44) Snell-Hornby (2006) described the
ldquocultural turn of the1980srdquo as the trend driven by the theoretical impetus from various
sources such as descriptive translation studies skopos theory and deconstructionism
(p 47)2
Snell-Hornby (1988) first employed the term ldquocross-cultural transferrdquo in
subscribing to Vermeerrsquos view that translation was not the trans-coding of words or
sentences between languages but a ldquocross-cultural transferrdquo (p 46) She argued that
in traditional linguistic oriented theory ldquothe text was then seen as a linear sequence of
units and translation was merely a trans-coding process involving the substitution of a
sequence of equivalent unitsrdquo and that the equivalence-centred studies carried out by
Jacobson Nida and Catford were crippled by the very concept of equivalence (pp
16-19) She contended that the pursuit of equivalence was an incurable illusion based
on the false presumption of absolute symmetry between languages and was thus a
distortion of the fundamental problems in translation Her denunciation of equivalence
was best represented by the following remarks
The object of study has been redefined what is studied is the text embedded in its network of
both source and target cultural signs and in the way Translation Studies has been able to utilize
the linguistic approach and to move out beyond it (p 12) 2 Toury (2007) noted the influence of cultural studies in translation He remarked
The last decade has been marked by the foregrounding of cultural concerns in all the sciences of
man including the ones interested in language and language behavior This development has
already brought along substantial changes in the way phenomena lsquoin the world of our
experiencersquo are approached which students of translation were among the first to applaud - and
adopt There were even colleagues who nicknamed the 1980s the era of rsquocultural turnrsquo in
Translation Studies (eg Bassnett and Venuti 1990) even though it is not always all that clear
what this term was meant to cover (p 1)
INTRODUCTION 6
In this study the view is also taken that equivalence is unsuitable as a basic concept in translation
theory the term equivalence (the authorrsquos italics) apart from being imprecise and ill-defined
(even after a heated debate of over twenty years) presents an illusion of symmetry between
languages which hardly exists beyond the level of vague approximations and which distorts the
basic problems of translation (1988 p 22)
In explaining the nature of translation she noted that ldquolanguage is not seen as an
isolated phenomenon suspended in a vacuum but as an integral part of culturerdquo (p
39)3 Apart from the definition given by Goodenough and Gohring Snell-Hornby
also subscribed to Vermeerrsquos concept of culture in translation She remarked
This new definition correlates with the concept of culture now prevalent in translation theory
particularly in the writings of Vermeer hellip and is the one adopted in this study hellip the concept of
culture as a totality of knowledge proficiency and perception is fundamental in our approach to
translation If language is an integral part of culture the translator needs not only proficiency in
two languages he must also be at home in two cultures In other words he must be bilingual and
bicultural (cf Vermeer 1986) (1988 pp 40 42)
According to Snell-Hornby Vermeer was among the first to argue that the linguistic
approach was far from adequate for understanding the nature of translation and that
3 Commenting on the definition provided by American ethnologist Ward H Goodenough and German
scholar Heinz Gohring Snell-Hornby(1988) remarked
There are three important points common to both definitions quoted above but which are
especially prominent in Gohringrsquos German adaptation firstly the concept of culture as a totality
of knowledge proficiency and perception secondly its immediate connection with behaviours
(or action) and events and thirdly its dependence on norms whether those social behaviours or
those accepted in language usage (p 40)
INTRODUCTION 7
translation was first and foremost a cross-cultural transfer In this regard Vermeer
remarked
Translation is not the trans-coding of words or sentences from one language to another but a
complex form of action whereby someone provides information on a text (source language
material) in a new situation and under changed functional cultural and linguistic conditions
preserving formal aspects as closely as possible (Snell-Hornby 1990 p 82)
Rather than giving emphasis to the equivalence of linguistic units such as words
or sentences Vermeer began to view translation as a complicated action in a broader
socio-cultural context In his skopos theory translation is a form of human interaction
determined by its ldquoskoposrdquo or purpose Following in the footsteps of Vermeer
Snell-Hornby took a cultural approach abandoning linguistic equivalence as the goal
of translation She held that the translatorrsquos cultural knowledge proficiency and
perception underpinned not only his ability to ldquoproduce the target text but also his
understanding of the source textrdquo (p 42) In other words understanding of the cultural
elements of both the SL and TL was a pre-requisite in translation However she did
not explain how translation could take place between cultures without taking
linguistic equivalence into consideration
The notion of cultural transfer has been given different and even conflicting
interpretations in the literature and the range of empirical facts judged to be relevant
to the study of cultural transfer varies from theory to theory In addition any study of
translation must deal with the language pair in question and translation is always a
verbal representation of the source text In the next chapter we will scrutinize the
notion of cultural transfer and examine the questions at issue
INTRODUCTION 8
13 Legal Translation Theory In Search of Goal and Strategy
In traditional translation theory legal texts were regarded as a species of LSP
text and their translation was accordingly treated as a kind of technical translation In
recent translation theory a change in perspective has occurred along with the
emergence of approaches centered on cultural and communicative factors described in
section 11 The translation of legal texts has increasingly been regarded as a
communicative act no longer a mere operation on the technical linguistic elements to
achieve verbal and grammatical parallelism as well as equivalence in legal meaning
Moreover the translator is no longer considered a passive mediator but rather an
intercultural operator whose choices are increasingly recipient-oriented and based not
only on strictly linguistic criteria but also on extra-linguistic considerationsmdashfirst and
foremost the function of the translated text in the target culture In this section we
will look at studies in legal translation with respect to its goal and strategy
Wilss (1982) observed that at the outset of translation studies it was generally
agreed that the goal of all translation was to achieve equivalence by producing the
closest possible equivalent text In normal practice the legal translator was expected
to produce a strictly literal translation to retain the elements of the original texts The
basic unit of translation was still the word Basic changes in syntax were permitted so
as to respect the grammatical rules of the target language
Approaching legal translation from the perspective of communication Sager
(1997) held that recent translation theory had taken into consideration cultural
differences between the source and target languages as well as the purpose of the
translated text He also noted that the concept of equivalence had been modified to
INTRODUCTION 9
text-type equivalence as opposed to textual equivalence Rejecting the static view of
linguistic equivalence and characterizing translation ldquoas one possible step in a
communication process between two culturesrdquo Sager proposed an approach to
translation based on communication theory with a view to ldquoredefining the relationship
between source and target textrdquo (pp 26 27) The translator was considered as an
information mediator who needed to identify the writerrsquos intention the readerrsquos
expectation the text-type in question and possible ways to reconstruct them In
relation to translation strategy he also pointed out that the traditional concept of
translation which aimed to preserve both content and intention applied only in the
case of translation of a letter or a technical instruction from one language to another
Sagerrsquos communicative approach represents a shift of focus from source text to target
text and frees the legal translator from the rigid grip of linguistic equivalence
However Sager did not explain how the legal translator could reconcile the writerrsquos
intention with the readerrsquos expectations and in what ways the goals of translation of
legal language as a special text-type differed from goals in translating other text-types
Functionalists who focus their attention on the concepts of skopos and
target-orientedness no longer take the source text as the only standard for assessing a
translation Instead translation is now assessed on the basis of its adequacy for the
communicative purpose within the target culture (Vermeer 1984 Nord 1991 1997)
As for the applicability of this approach to legal translation functionalists have
claimed that their theory is comprehensive and applicable to all text-types in all
situations (Vermeer 1982 p 99) But doubts have been raised as to whether the
functional approach could be validly applied to LSP texts and in particular to legal
texts (Trosborg 1997) The main objections are centred on the typical
recipient-orientedness of the functional approach which seems inappropriate for legal
INTRODUCTION 10
language which is governed by rigorous rules of interpretation In response to such
objections Šarčević (1997) argued that legal translation should no longer be regarded
as a process of linguistic trans-coding but an act of communication in the mechanism
of law (p 55) She criticized scholars who focus their attention primarily on language
and the linguistic elements of the text for ignoring the fact that legal translation was
also receiver-oriented and that legal communication could be effective only if
interaction was achieved between text producers and receivers (pp 55-56) She thus
redefined the goal of legal translation as the production of a text with the same
meaning and effect as the original text with special emphasis on effect The translator
should also preserve the unity of a single instrument by striving to produce a text that
would be interpreted and applied by the courts in the same manner as the other
parallel texts of that instrument particularly the original (p 72) In order to achieve
this goal a thorough understanding of the legal cultures in which the translation
ultimately functions is a must as translation problems emerge as a result of different
legal histories and cultures Legal translators could only overcome the problems posed
by different legal cultures with a clear knowledge of the fundamental differences
between legal systems For Šarčević understanding the legal cultures of ST and TT is
vital for legal translation Like functionalists she attaches a great deal of importance
to the communicative function of legal translation However she does not explain
how the legal translator could simultaneously achieve the same meaning and the same
effect as the source text
Taking the view that legal texts form a specific genre with their own unique
linguistic framework and generic knowledge text typology as recently developed has
positive implications for the goal and theoretical methodologies of legal translation
Trosborg (1997) held that distinguishing between political texts legal texts and other
INTRODUCTION 11
text-types was of great significance as they required different translation approaches
Defining genre analysis as ldquothe study of situated linguistic behavior in
institutionalized academic or professional settingsrdquo Bhatia (1997) adopted a
genre-based approach to translation He noted two crucial characteristics of genre
analysis One is that genre analysis is not ldquoan extension of linguistic formalismrdquo in the
sense that it examines the use of language to achieve the communicative purpose
rather than linguistic equivalence The second is that genre theory explores ldquoall
aspects of socio-cognitive knowledge situated in disciplinary cultures in order to
analyze construction interpretation and use of linguistic communication to achieve
non-linguistic goalsrdquo (p 205) Therefore the genre-based approach to legal translation
is by nature a pragmatic study of the use and effect of language within a particular
legal culture For Bhatia the goal of legal translation must include the ldquoaccessibility
of the target text for a specific audiencerdquo and he therefore advocated the method of
easification ldquoa process of making a text-genre more accessible to an intended
readership without sacrificing its generic integrityrdquo (p 209) He held that this
genre-based approach to the teaching and learning of translation had the advantage of
encouraging the learner He remarked
hellip this awareness of participation in the ownership of the genres of legal culture is what Swales
(1990) calls raising rhetorical consciousness in the learner (or translator) (p 212)
Accordingly cultural awareness is a pre-requisite for the legal translator While
Bhatiarsquos approach to legal translation is genre-based his emphasis on legal culture is
similar to Šarčevićrsquos view He also held that the goals of legal translation should
include the readability of the target text
INTRODUCTION 12
We can see from the discussion above that legal translation has been
approached from three different perspectives There has been a shift from producing
the closest possible equivalent text to producing a text with the same meaning and
effect as the other parallel text(s) a shift of focus in translation theory from fidelity to
the source text to the readability of the target text and a shift from the merits of
interlingual equivalence to the demands of cross-cultural communication Awareness
of the differences between the cultures of different legal systems is of paramount
importance in legal translation In the next chapter we will re-examine the goal of
legal translation and show in the light of a clarified notion of cultural transfer that
cultural transfer as domestication is not appropriate for the kind of legal translation
which aims to produce an authentic version of the law
14 Rationale for the Study
The rationale for the present study is twofold Firstly cultural transfer is
arguably the most discussed but least understood concept in recent translation
theory In the absence of a clear notion of what this concept means it is difficult to
arrive at a judicious understanding of the nature of translation Secondly legal
translation in particular legislative translation as carried out in Hong Kong can serve
as an exemplary case study for understanding the multi-faceted problems relating to
the concept of cultural transfer As will be shown cultural transfer in Snell-Hornbyrsquos
sense ie domestication at the cultural level is totally inappropriate for legal
translation The question we have to address is what does ldquocultural transferrdquo mean in
legal translation and how is it effected
INTRODUCTION 13
The translation of the English legislation enacted before 1987 into Chinese in
Hong Kong was clearly a mammoth legal project4 While this was completed before
the handover of the sovereignty of Hong Kong to the Peoplersquos Republic of China on 1
July 1997 a good part of the common law including case law has yet to be translated
or represented in one form or another in Chinese It is hoped that the theoretical
inquiry into cultural transfer in legal translation undertaken by the present thesis can
provide some insights into the future development of bilingual legislation in Hong
Kong
4 English had been the language of the law since Hong Kong became a British colony in 1842 and
remained so until Section 4 of the Official Language Ordinance as amended in 1987 stipulated that
ldquo[a]ll Ordinances shall be enacted and published in both official languagesrdquo The Interpretation and
General Clauses Ordinance as amended in 1987 defined ldquoofficial languagerdquo as ldquothe English language
and the Chinese languagerdquo
Chapter 2
Translation as Cultural Transfer
21 Clarification of the Notion of Cultural Transfer
211 Cultural Transfer vs Transcoding
Despite years of debate translation scholars are still wrestling over whether a
translation should be literal or free In traditional theory literal translation has been
characterized as a word-for-word transmission of a text from one language into
another The adequacy of translation has traditionally been judged on the basis of the
degree of lexical and grammatical correspondence between the source and target
languages Such correspondence is often defined in terms of equivalence Thus
fidelity to the original text is considered the most important principle of translation
and the main task of the translator is to find the best equivalence On the other hand
free translation has been characterized as a sense-for-sense transmission not
constrained by the lexicon or grammar thus giving the translator absolute freedom as
to how to render the source text in the target language Challenging the rigid
dichotomy of word and sense Snell-Hornby (1988) contended that it was rooted in
the ldquoillusion of equivalencerdquo (p 13) and as we have already noted advocated the
notion of cultural transfer as a complete break with the traditional theory She pointed
out that this new orientation had in fact already been put forward by several German
scholars in the 1980s She said
TRANSLATION AS CULTURAL TRANSFER
15
What is dominant in the three new basic approaches recently presented in Germany hellip is the
orientation towards cultural rather than linguistic transfer secondly they view translation not as
a process of transcoding but as an act of communication thirdly they are all oriented towards
the function of the target text (prospective translation) rather than prescriptions of the source text
(retrospective translation) fourthly they view the text as an integral part of the world and not as
an isolated specimen of language These basic similarities are so striking that it is not exaggerated
to talk of a new orientation in translation theory (pp 43-44)
Adopting Vermeerrsquos view that translation is a ldquocross-cultural eventrdquo
Snell-Hornby argued that translation was not simply as ldquoa matter of languagerdquo but a
ldquocross-cultural transferrdquo (p 46) As has been noted in section 11 Vermeer (1996) in
his endeavour to establish skopos theory held that translation was not the
trans-coding of words or sentences from one language to another but a complex form
of action Skopos theory is basically a functional theory and ldquoits concern is the
potential functionality of a target-text (translationtranslatum) under target-culture
(lsquorecipientsrsquo) conditionsrdquo (1996 p 31) Vermeer emphasized that the target culture
constrained the choices available to the translator urging her to pay special heed to
the convention of the target culture and the expectations of the target reader which in
turn pre-determine the function of the translation In refuting the concept of
equivalence he contended
It is not the source-text equivalence (or more loosely correspondence) requirement which
guides the translation procedure but the skopos eg to show target-text recipients how a
source-text iswas structuredrdquo (1996 p 51)
TRANSLATION AS CULTURAL TRANSFER
16
One of the main factors in the skopos of a communicative activity is ldquothe (intended)
receiver or addressee with their specific communicative needsrdquo (1996 p 46) He
claimed that skopos theory applied to all translations and the function of the
translation in the target text could differ from that of the source text The same text
could therefore be translated in different ways depending on its function and the
translatorrsquos main task was to produce a new text that satisfies the cultural expectations
of target receivers
As Vermeerrsquos and Snell-Hornbyrsquos proposed new orientation was intended as a
revolt against the prevailing linguistic approach we now need to look back at the
major tenets of this earlier turn
Catford is generally acknowledged to be the founder of the linguistic school in
translation theory In defining translation as ldquothe replacement of textual material in
one language (SL) by equivalent textual material in another language (TL)rdquo (1965 p
20) Catford presupposed the existence of linguistic equivalence between SL and TL
For him textual material was not ldquothe entirety of a SL textrdquo but mainly the ldquogrammar
and lexisrdquo (p 20) He further made a linguistic break-down of SL and TL into what he
called ldquoextentrdquo ldquolevelsrdquo and ldquoranksrdquo employing equivalence as a key concept
throughout (p 21) He said
The central problem of translation practice is that of finding TL translation equivalents A
central task of translation theory is that of defining the nature and conditions of translation
equivalence (p 21)
TRANSLATION AS CULTURAL TRANSFER
17
Thus in Catfordrsquos view the central problem and task of translation centre around the
concept of equivalence He further distinguished between ldquotextual equivalencersquordquo and
ldquoformal correspondencerdquo two basic translation equivalences in his theory (p 27)5
Equivalent units in the TL vary in size from the entire text to any portion of the text
having a wider scope than formal correspondence In his view textual equivalence is
represented by the occurrence of a TL textual equivalent for a specific SL item
allowing equivalence-probabilities to be established between the two (p 30)
Thus for Catford establishing equivalence-probabilities is an ideal goal of
translation as these allow translation to be carried out in a manner similar to
mathematics
On the other hand formal correspondence as Catford pointed out is best
exemplified by translation between two languages both of which operate with
ldquogrammatical units at (all) five ranksrdquo (for example English and French)6 While
formal correspondence is harder to achieve as it requires the nearest match between
TL and SL grammatical categories and can only be fulfilled through textual
equivalence Catford maintained that the former is still ldquoan essential basis for the
discussion of problems which are important to translation theory and necessary for its
applicationrdquo in translation practice (pp 32-33) Observing that there are always ldquosome
departures from the formal correspondencerdquo what he called ldquoshiftsrdquo he conceded that
5 The definitions of textual equivalence and formal correspondence are given as follows
A textual equivalence is any TL text or portion of text which is observed on a particular occasion
by methods described below to be the equivalent of a given SL text or portion of text A formal
correspondence on the other hand is any TL category (unit class structure element of structure
etc) which can be said to occupy as nearly as possible the lsquosamersquo place in the lsquoeconomyrsquo of the
TL as the given SL category occupies in the SL (Catford 1965 p27) 6 The five ranks are sentence clause group word morpheme (Catford 1964 p32)
TRANSLATION AS CULTURAL TRANSFER
18
formal correspondence can only be approximate in nature He further distinguished
between two major types of ldquoshiftsrdquo level shifts and category shifts In general terms
they are linguistic units in SL which have TL equivalents belonging to a different
linguistic level or category (1965 p 73) Thus Catford was well aware that
ldquotranslation equivalence does not entirely match formal correspondencerdquo That is why
he resorted to textual equivalence (p 82) He was also aware that even textual
equivalence is not always achievable because of two kinds of un-translatability
linguistic and cultural Linguistic un-translatability occurs when there is no lexical or
syntactical substitute in the TL for an SL item whereas cultural un-translatability is
due to the absence in the TL culture of a relevant situational feature for the SL text
We are now in a better position to assess Snell-Hornbyrsquos critique of Catfordrsquos
linguistic theory of translation Her main criticism7 centres around the foundation of
his linguistic approach which seems to her shaky
Catford bases his approach on isolated and even absurdly simplistic sentences of the type
propagated in theory of transformational grammar as well as on isolated words from such
examples he drives ldquotranslation rulesrdquo which fall far short of the complex problems presented by
real-life translation (1988 p 20)
Anyone who has read Catford carefully can see that this criticism is totally
unfounded According to Catford translation textual equivalents are discovered by
two methods namely by consulting the linguistic intuition of competent bilingual
7 Snell-Hornby also dismissed Catfordrsquos definition of textual equivalent as circular (1988 p20) She
is correct on this point as Catford did use the term ldquoequivalentrdquo to define ldquotextual equivalentrdquo (see
footnote 5 above)
TRANSLATION AS CULTURAL TRANSFER
19
informants or translators or through a formal procedure of commutation and
observation of concomitant variation the latter being ldquothe ultimate testrdquo (1965 pp
27-28) But Snell-Hornby completely and conveniently ignores the second method
directing her attack solely on the first
Anyone with experience in translation knows all too well the opinions of the most competent
translators can diverge considerably and the hellip [first method] ismdashfor a rigorously scientific
disciplinemdashhopelessly inadequate (1988 p20)
This criticism fails to do justice to Catford He made it very clear that consulting
the linguistic intuition of competent bilingual informants or translators works only for
simple cases but that for complicated cases the formal procedure may be used (p 28)
To illustrate this point let us adapt Catfordrsquos examples Suppose we have the
following sentence pair
1a 我的兒子六歲
1b My son is six
If we change ldquo兒子rdquo of 1a to ldquo女兒rdquo to obtain
1c My daughter is six
then the changed portion of 1b namely ldquodaughterrdquo can be taken to be the equivalent
of the changed portion of 1a namely ldquo女兒rdquo ie ldquodaughterrdquo = ldquo女兒rdquo The method
applies not only to lexical words but also to structural words Consider the following
sentence pair
2a 地上有黃金
2b There is gold on the ground
TRANSLATION AS CULTURAL TRANSFER
20
If we change ldquo上rdquo in 2a to ldquo下rdquo to obtain
2c There is gold under the ground
likewise the changed portion of 2b namely ldquounderrdquo can be taken as the equivalent of
the changed portion of 2a namely ldquo下rdquo ie ldquounderrdquo = ldquo下rdquo
Of course the procedure is not always so straightforward Finding a translation
equivalent may involve the very complicated procedure of comparing a great number
of sentence pairs However complicated it can nonetheless be carried out rigorously
and each of its finding subjected to very strict tests
What is most noteworthy about Catfordrsquos second method is that it is an empirical
and probabilistic one Translation equivalence is ldquoan empirical phenomenon
discovered by comparing SL and TL textsrdquo (p 27) Well aware of the fact that
equivalence between an SL item and a TL item is not always a one-to-one
correspondence Catford assigned a probability value to each equivalent pair ranging
from 0 (zero equivalent) to 1 (one-to-one) The following is Catfordrsquos own example
[I]n a French short story of about 12000 words the preposition dans occurs 134 times The
textual equivalent of this in an English translation is in in 98 occurrences into in 26 from in 2
and about and inside in one occurrence each there are six occurrences of dans where the
equivalent is either nil or not an English preposition hellip In terms of probabilities we can state the
translation equivalences as follows dans = in 73 dans = into 19 dans = from 015 dans =
aboutinside 0075 This means that if you select any occurrence of dans at random in this text
the probability that its translation equivalent on that occasion is in is 73 the probability that it is
into is 19 etc (1965 p 30)
TRANSLATION AS CULTURAL TRANSFER
21
Catford further distinguished between two types of probability value namely
unconditioned probabilities and conditioned probabilities the latter being values
affected by contextual and co-textual factors (pp 31-32) He went on to make the
following remark
Provided the sample is big enough translation-equivalence-probabilities may be generalized to
form lsquotranslation rulesrsquo applicable to other texts and perhaps to the lsquolanguage as a wholersquomdashor
more strictly to all texts within the same variety of the language (p 31)
Thus nothing is further from the truth than accusing Catford of deriving
translation rules from ldquoabsurdly simplistic sentencesrdquo as alleged by Snell-Hornby
Quite on the contrary for Catford they are derived from a big enough samplemdash a big
enough corpus in contemporary linguistic terminology More crucially his approach
is in all important respects the same as the corpus-based approach in translation
studies today which aims to extract translation rules from a huge parallel corpus of
translated texts Catford can thus properly be said to be the pioneer of the
corpus-based approach in translation studies
Three further points must be made about Catfordrsquos linguistic approach
particularly since it has been so unfairly and widely criticized even to the extent of
making it something of a dead horse in translation studies today
First Catfordrsquos linguistic approach is by no means built on the ldquoillusion of
equivalencerdquo For he expressly states that ldquothe SL and TL items rarely have lsquothe same
meaningrsquo in the linguistic senserdquo (p 49) ldquosince every language is formally sui generis
and formal correspondence is at best a rough approximationrdquo (p 36) Translation
TRANSLATION AS CULTURAL TRANSFER
22
equivalence is therefore not based on sameness in meaning but on functional
interchangeability in the same context (p 49) Put briefly a TL sentence T is a
translation equivalent of an SL sentence S if T and S have overlapping meanings
relevant to the context in question (pp 37-39) such that T ldquocan function in the same
situationrdquo as S (p 49)8 Accordingly the aim of translation is Catford argued to
select TL equivalents ldquonot with the same meaning as the SL items but with the
greatest possible overlap of situational rangerdquo (p 49) Catfordrsquos ldquotranslation
equivalentrdquo looks very much the same as Nidarsquos ldquoclosest natural equivalentrdquo but it
differs from the latter in one crucial aspect in that it is invariably context-dependent
whereas the latter can be context-free
Another equally important point about Catfordrsquos linguistic approach can best
been seen from the following passages
hellip[A] manifestation of the lsquosame meaningrsquo or lsquomeaning-transferencersquo fallacy is seen in the view
that translation is a lsquotranscodingrsquo process a well-known example being Weaverrsquos remark
lsquoWhen I look at an article in Russian I say ldquoThis is really written in English but it has been
coded in some strange symbols I will now proceed to decoderdquo
This implies either that there is a one-to-one relationship between English and Russian
grammaticallexical items and their contextual meanings or that there is some pre-existent
lsquomessagersquo with an independent meaning of its own which can be presented or expounded now in
one lsquocodersquo (Russian) now in another lsquocodersquo (English) But this is to ignore the fact that each
8 While Catford explained this point in great detail in Chapter 5 Meaning and Total Translation we
cannot elaborate on it here
TRANSLATION AS CULTURAL TRANSFER
23
lsquocodersquo (ie each language carries with it its own particular meaning since meaning hellip is lsquoa
property of languagersquohellip
hellip
Our objection to lsquotranscodingrsquo or lsquotransference of meaningrsquo is not a mere terminological quibble
There are two reasons why translation theory cannot operate with the lsquotransference of meaningrsquo
idea In the first place it is a misrepresentation of the process and consequently renders the
discussion of the conditions of translation equivalence difficult in the second place it conceals
the fact that a useful distinction can be made between translation and another process which we
call transference In transference hellip there is indeed transference of meaning but this is not
translation in the usual sense (pp 41-42)
Meaning does not get transferred in translation and translation is not a process of
transcoding This comes out loud and clear in Catford Translation for him is not a
process of code-switching according to rigid mechanical rules based on one-to-one
formal correspondence between SL and TL items as Nord has alleged (1997 p 7)
nor is it a process of transcoding of pre-existent naked meaning So the Catford that
Snell-Hornby and many others have attacked turns out to be not merely a straw man
but ironically also a comrade in arms
A third important point to note about Catfordrsquos linguistic approach is that it is by
no means incompatible with the so-called cultural approach As has been shown
Catfordrsquos approach is an empirical and probabilistic one Its aim is twofold first to
find TL equivalents (in his sense) by way of comparing actual samples of SL and TL
texts with the resultant TL equivalents serving as translation rules and second to set
out the conditions for justifying TL equivalence Unlike Snell-Hornby and many other
theorists Catford never told us how to translate So in this sense his linguistic
TRANSLATION AS CULTURAL TRANSFER
24
approach can be said to be theory-free He only told us how to find translation
equivalents which is exactly what corpus linguists do nowadays A corpus might
contain TL texts produced in the light of different or even conflicting theories but
Catfordrsquos approach would still be applicable Accordingly the cultural approach
advocated by Snell-Hornby and others of a similar persuasion is not really a rival
approach and hence there is not much sense in talking about an emancipation from
the linguistic theory of translation that Catford represents
212 Vermeerrsquos View of Translation as Cross-cultural Transfer
The tenets of the cultural school as represented by Vermeer and Snell-Hornby
can be reduced to three statements
1 Translation is not simply a matter of language and it does not take place
merely between languages
2 Language is an integral part of culture and hence translation from one
language to another is a cross-cultural transfer and
3 The source text in itself does not dictate how it is to be translated what
dictates the translation is the specific purpose in question
This counters the lay view of translation described well enough by Snell-Hornby
as follows
hellip translation is simply a matter of words or individual linguistic signs which are replaced by
equivalent words signs or units in the target language The translator so it is assumed therefore
TRANSLATION AS CULTURAL TRANSFER
25
needs either simply a good command of the vocabulary in both languages involved or a good
dictionary (1992 p 2)
Such a naive static and mechanical view is as Snell-Hornby endeavoured to show
rooted in the false belief in the existence of equivalence between languages ie a
one-to-one correspondence between SL and TL items Yet her critique of such a
notion was directed not so much against lay people as against Catford and other
descriptivists such as Toury and Koller But it is really hard to see how such a view
of translation could be attributed to Catford who expressly dismissed it as fallacious
We do not want to labour this point but let us just say this Vermeer and
Snell-Hornbyrsquos vehement opposition to the linguistic approach is totally misguided
In place of the false dichotomy of word vs sense they have ushered in the false
dichotomy of transcoding vs cultural transfer As has already been shown by Catford
there is no such a thing as transcoding What then is cultural transfer
Vermeer answered the question with a metaphor
What does it mean to translate hellip Suppose you take a tree from a tropical climate to a temperate
zone Will it not need special care Will it not be considered something out of the ordinary by
whoever sees it It will never be the same as before neither in growth or in the eyes of its
observers hellip With a translation it is not much different One will have to decide before
translating whether it is to be ldquoadaptedrdquo (to a certain extent) ie ldquoassimilatedrdquo to target culture
conditions or whether it is meant to display and perhaps even stress its ldquoforeignrdquo aspect One
will have to make a choice In both cases the text will be ldquodifferentrdquo from what it was in its
ldquonormalrdquo source-culture conditions and its ldquoeffectrdquo will be different Assimilation does not
necessarily mean making a text look like an ordinary target-culture text(eme) ie making it look
TRANSLATION AS CULTURAL TRANSFER
26
ldquoas though it were not translationrdquo Assimilation need not take place on the ldquosurfacerdquo level
alone paradoxically enough assimilation on other levels can lead to an ldquoalienationrdquo
(Verfremdung) on the surface level (1995 p 39)
Translation is likened to the transplant of a tree onto foreign soil for a specific
purpose The translated text (the transplanted tree) has been adapted or assimilated to
a culture (foreign soil) different from the original (home soil) One important point to
note here is assimilation can take place on different levels the target text is not
necessarily a completely domesticated textmdashit may indeed turn out to be alien to the
target culture This is a point which has been overlooked or suppressed by Vermeerrsquos
followers who have identified Vermeerrsquos functional approach with domestication
Since the notion of skopos is an all-embracing one it is in principle able to
accommodate all kinds of approach to translation
hellip skopos theory hellip allows for transferring (or demands the transfer of) as many features of the
source-text surface-structure as possible into target culture surface-structure features in such a
way that target-culture addressees can appreciate the literariness of the translation in a way
comparablesimilarcorresponding to source-culture addressees who are able to appreciate their
source-text (1995 p 50)
[Note in the original The term ldquotransferrdquo is not strictly applicable Nothing is physically
transferred]
The passage is worth noting in two important respects The original footnote clearly
shows that Vermeer was not comfortable with the word ldquotransferrdquo It would be
interesting to see what word he would or could have used in its place ldquoTranscodingrdquo
would have definitely been ruled out as by it he meant translation which takes place
TRANSLATION AS CULTURAL TRANSFER
27
merely between languages guided by the principle of equivalence This is not a trivial
observation For ldquotranslation as cultural transferrdquo was used by him to mark a new
orientation in translation studies So it is legitimate to press the question of what he
meant by ldquocultural transferrdquo The tree transplanting metaphor cited above suggests
that in translation a text is transferred from one culture to another with the two
cultures in question remaining unchanged This is in line with the definition Vermeer
gave in his seminal paper entitled ldquoTranslation as a cultural transferrdquo (1986) However
the passage just cited implies that transcoding in the sense that purely linguistic
features of the source text are ldquocarried over tordquo9 or reproduced in the target text can
be one possible purpose of translation This seems to defeat the whole purpose of
skopos theory which asserts that ldquotranslation is not the transcoding of words or
sentences from one language to anotherrdquo (1986 p 33) A closer look at his remarks
on the ldquoequivalence postulaterdquo of Touryrsquos theory will reveal something even more
devastating for skopos theory however
hellip there is a methodological difference between Touryrsquos approach and that of skopos theory
According to the latter a lsquotransferrsquo (by any strategy) of a great number of source-text phenomena
to a target-text still depends on the skopos (purpose) of translating It is not the source-text
equivalence (or more loosely correspondence) requirement which guides the translation
procedure but the skopos eg to show target-text recipients how a source-text iswas structured
(or for some other purpose hellip) The skopos is hierarchically higher than the equivalence postulate
Such a procedure is then not retrospective (as is the case when taking the source-text structure as
the highest element in the hierarchy) but prospective in the sense that the skopos demands a full
consideration of source-text structures for a given purpose In such a case the difference between
9 ldquoCarry overrdquo was also used by Vermeer as a synonym of ldquotransferrdquo (1990 p 50)
TRANSLATION AS CULTURAL TRANSFER
28
Touryrsquos approach and that of skopos theory is one of focus in practice the result may look much
the same (Ibid p 51 Italics mine)
The passage clearly shows that Vermeer was in fact not really against the equivalence
postulate or transcoding as he expressly stated that the difference between Touryrsquos
approach and his is ldquoone of focusrdquo ie Touryrsquos focus is on the source-text
(retrospective) whereas his is on the target-text (prospective) and that both
approaches may lead to much the same target text We can thus see that the kind of
transcoding he deplored was in the final analysis transcoding without a purpose
whereas he saw transcoding with a purpose as both possible and legitimate His
opposition to the linguistic approach turns out to have been overstated
The fundamental principle of skopos theory according to Vermeer is that it
ldquostrictly regards translating from the point of view of a text functioning in a
target-culture for target-culture addressesrdquo (1990 p 50) Translation as cultural
transfer is therefore translating a text from one culture to another according to a
specific function What is transferred (understood in a figurative sense) is the text not
the culture of the text But here Vermeer simply failed to see there are situations
where ldquocultural transferrdquo means ldquothe transfer of one culture to anotherrdquo and
legislative translation is a typical case of cultural transfer in this sense
213 Snell-Hornbyrsquos View of Translation as Cultural Transfer
In line with the central arguments of the new theoretical orientation which I
have just discussed Snell-Hornby held that translation was a cultural transfer rather
TRANSLATION AS CULTURAL TRANSFER
29
than a linguistic transfer and that translation as a cultural transfer was oriented
towards the function of the target culture and also facilitated cross-cultural
communication To illustrate this point Snell-Hornby (1998 pp 94-5) cited her own
experience in India When walking along the streets of Southern India about twenty
years earlier she was repeatedly approached by local people who asked her a question
in their native language which literally means ldquoWhere are you goingrdquo in English She
was obviously puzzled by this strange question Later she found out that it was a local
form of greeting when people met in the street A mere transcoding would yield
ldquoWhere are you goingrdquo which in her view was problematic because it was likely to
cause a communication break-down She pointed out how this showed the limitations
of mere transcoding by neglecting the twin facts that language was dependent on
cultural and social norms and that translation was essentially a cross-cultural event
Instead an appropriate translation would be ldquoHow are yourdquo as it complied with the
conventions of greeting in English and thus effected a cultural transfer
The starting point of Snell-Hornbys framework is reasonable in the sense that
the pursuit of absolute equivalence or symmetry between languages is futile and it is
doubtless the case that cultural elements must been taken into account when doing
translation If her thoughts on the incident lead her merely to the above conclusion
her argument about the cultural account in translation would be sound However in
analyzing the appropriate translation for the Indian way of greeting she distinguished
two translation methods one is the mere transcoding and the other is what she called
ldquocultural transferrdquo In her view linguistic transcoding and cultural transfer are
apparently two distinct methods of translation Linguistic transcoding is reduced to
linguistic transference without any cultural account By contrast cultural transfer
indicates the rendering of source text smoothly and idiomatically such that the English
TRANSLATION AS CULTURAL TRANSFER
30
speaking reader would perceive the translation as conventional and familiar Thus the
important units of translation are seen as products of culture that emerges from their
distinctive social settings instead of strings of words or sentences or even whole texts
According to Snell-Hornby translation should be oriented towards the function of the
target text rather than submit to the prescription of the source text She remarked
The text cannot be considered as a static specimen of language (an idea still dominant in
practical translation classes) but essentially as the verbalized expression of an authorrsquos intention
as understood by the translator as reader who then recreates this whole for another readership in
another culture This dynamic process explains why hellip the perfect translation does not exist
(1988 pp 1-2)
We shall see from the above that in proposing the translator ldquorecreates this whole
for another readership in another culturerdquo Snell-Hornby holds that translation as
ldquocultural transferrdquo should conform to the cultural norms of the target language and
familiarize the source culture to the extent that target readers could identify it with
their own culture As has been shown the term ldquocultural transferrdquo is used by
Snell-Hornby as the antithesis to ldquolinguistic transcodingrdquo It is clear what she means
by ldquolinguistic transcodingrdquo a naiumlve simplistic static and mechanical manner of
translation which consists in matching SL and TL words solely by relying on a
bilingual dictionary a view of translation rooted in the false belief in the existence of
equivalence (a one-to-one correspondence) between languages However it is by no
means so clear what she means by ldquocultural transferrdquo particularly what she means by
ldquotransferrdquo ie what gets transferred in translation
TRANSLATION AS CULTURAL TRANSFER
31
She regularly stresses two points in her work First language is an integral part
of culture and also of the world Understanding a text requires an understanding of its
socio-cultural context and this applies to both the source text and the target text
Second translation is an act of communication oriented towards the function of the
target text not a mere linguistic operation prescribed by the source text These two
points seem clear enough but again what gets transferred in translation is not at all
clear
Her discussion of the translation approach of Hans G Houmlnig and Paul Kussmaul
(in Snell-Hornby 1988 pp 45-46 1990 pp 83-84) which she endorsed gives us
some idea of what she means
Houmlnig and Kussmaulrsquos starting point is the conception of the text as what they call lsquothe
verbalized part of a socio-culture (1982 58) the text is imbedded in a given situation which is
itself conditioned by its sociocultural background The translation is then dependent on its
function as a text lsquoimplantedrsquo in the target culture The basic criterion for assessing the quality of
a translation is called the lsquonecessary grade of differentiationrsquo which represents lsquothe point of
intersection between target text function and socio-cultural determinantsrsquo (1982 53)
To illustrate this they quote two sentences each naming a famous British public
school
In Parliament he fought for equality but he sent his son to Winchester
When his father died his mother couldnrsquot afford to send him to Eton any more
They then quote two extreme types of German translation
TRANSLATION AS CULTURAL TRANSFER
32
hellipseinen eigenen Sohn schickte er auf die Schule in Winchester
hellipkonnte es sich seine Mutter nicht mehr leisten ihn nach Eton zu schicken jene teure englische
Privatschule aus deren Absolventen auch heute noch ein Grossteil des politischen und
wirtschaftlichen Fuhrungsnachwuchses hervotgecht10
The first translation is under-differentiated the mere name ldquoWinchesterrdquo does not
carry the same meaning for a German reader as for an English one The second is
over-differentiated however correct the information on British public schools may be
it is superfluous to the text concerned In the first of the two sentences it is the
double-faced hypocrisy of the father (hence the exclusive elitist character of public
schools) that is stressed while the second focuses on an impoverished widowed
mother (and the expensive school fees) As the necessary grade of differentiation for
the texts in question the authors therefore suggest
Im Parlament kampfte er fur die Chancengleichheit aber seinen eigenen Sohn schickte er auf
eine der englischen Elisteschulten [elite schools]
Als sein Vater starb konnte seine Mutter es sich nicht mehr leisten ihn auf eine der teuren
Privatschulen [private schools] zu schicken (1990 pp 83-84)
Here Snell-Hornby agrees with Houmlnig and Kussmaulrsquos approach which rejects
the orthodox demand to preserve as much of the original as possible so as to achieve
equivalence in translation Preserving ldquoWinchesterrdquo in the German translation is an
under-translation because for German readers the name ldquoWinchesterrdquo would just be
10 Snell-Hornbyrsquos translation ldquohellipthat expensive English public school which even today produces
many of the future leaders in politics and managementrdquo
TRANSLATION AS CULTURAL TRANSFER
33
the name of a city perhaps even unable to call up the notion of there being a school
there let alone Winchester College the oldest public school in England On the other
hand filling in too much background information is an over-translation distracting
readers from the impoverished condition of the widowed mother The suggested
translations in which ldquoWinchesterrdquo is translated as ldquoone of the elite schools and
ldquoEtonrdquo as ldquoone of the expensive private schoolsrdquo give as much information as
necessary for the functions of the two English sentences to allow German readers to
understand the socio-cultural meaning of ldquoWinchesterrdquo and ldquoEtonrdquo So we are not
translating ldquowordsrdquo but ldquowords-in-textrdquo (1988 p 45) What gets transferred in
translation should be the socio-cultural meaning of words not their surface meaning
of words
In a paper entitled ldquoTranslation as a Cultural Shock Diagnosis and Therapyrdquo
(1992) Snell-Hornby describes how erroneous mechanical matching of equivalents
in translation can give rise to interlingual miscommunication and cultural shock An
amusing example reads
Nice German business man 36 wants to become a black woman Every letter will be answered
(p 2)
The shock obviously unintended is due to matching the German ldquobekommenrdquo (=
getfind) to the English ldquobecomerdquo Examples like this abound11
11 The English translation of a sign in China reads ldquoCarefully fall into the riverrdquo The Chinese
original reads ldquo小心堕河rdquo
TRANSLATION AS CULTURAL TRANSFER
34
On the syntactic level following the conventions of the source text would give
rise to stiltedness in the target text Very often equivalent syntactic forms are not
acceptable in the target language (1990 pp 6-7) The following are English
translations of a hotel advertisement in German The one on the left is the original
translation which stays close to German syntax and the one on the right is a rewriting
according to English advertising conventions
To enjoy Viennarsquos unique atmosphere Come and enjoy the unique
atmosphere
In one of the cityrsquos guesthouses of Viennamdashand stay in one of
the cityrsquos finest Pensionen
University City hall Parliament A few minutesrsquo walk from the
University
Burgtheatre and Vortivkirche City Hall Burgtheatre and
Vortivkirche
In the immediate vicinity
hellip hellip
The upshot of her discussion is this ldquoTranslation is not a merely a matter of
language but primarily one of knowledge of which language forms only a partrdquo (p
7) And translation should free itself from the inexorable grip of words and avoid
inflicting cultural shocks by conforming to the linguistic and cultural norms of the
target language Let us return for a moment to the questions arising from the two
approaches to translating the Indian greeting examined by Snell-Hornby namely
linguistic transcoding and cultural transfer For her the way to effect cultural transfer
is to match the original Indian greetings to an idiomatic expression in English In this
TRANSLATION AS CULTURAL TRANSFER
35
way the translation actually functions the same way as the original does but may fail
to preserve the original patterns and to reflect the real meaning expressed in the
original text In other words the cultural transfer that Snell-Hornby advocates
involves conformity with the conventions of the target culture In addition
Snell-Hornby only recognizes the importance of the source culture in the
understanding of source text Instead she places great emphasis on the target culture
since she holds that the translator should be oriented towards the target culture
producing translation that is representative of the culture of target language instead of
the culture of the source language Evidently translation as cultural transfer in this
sense involves inadequate transference of the source culture Cultural transfer is in the
final analysis ldquocommunication across culturesrdquo (p 7) very similar to what Newmark
called ldquocommunicative translationrdquo
214 Domestication vs Foreignization
In maintaining translation as cultural transfer Snell-Hornby is in fact adopting a
target-culture-oriented position For her the source culture is important only for
understanding the source text but the target culture in fact plays a far more vital role
since it shapes the target text which is what actually facilitates cross-cultural
communication Thus viewed translation as cultural transfer is in effect
cross-linguistic communication at the cultural level a mapping of the source culture
onto the target culture in other words a functional assimilation of the source culture
into the target culture
TRANSLATION AS CULTURAL TRANSFER
36
As is well known such an approach is contrary to the one advocated by
Schleiermacher For him there are only two options for the ldquotruerdquo translator Either to
move the reader towards the writer or to move the author towards the writer
(Robinson 1997 p229) He opted for the first remarking
To achieve this the translator must adopt an lsquoalienatingrsquo (as opposed to lsquonaturalizingrsquo) method
of translation orienting himself or herself by the language and content of the ST He or she must
valorize the foreign and transfer that into the TL (quoted in Munday 2001 p 28)
Adopting Schliermacherrsquos categorization of these two translation strategies
namely ldquoalienatingrdquo and ldquonaturalizingrdquo Venuti (1992) argues that the former strategy
could exert a positive influence on the target culture while the latter might inhibit
innovation on the part of the target language and culture Having examined past
examples of the decisive role of domestication in forming certain foreign cultural
identities in the target culture he had come to realize that translators had tended to
achieve the goal of communication by naturalizing foreign texts in order to conform
to domestic conventions However the domestication of a foreign culture could result
in misrepresentations of that culture Worse still it could paralyze the ability and
willingness of the target reader to accepting new elements from a foreign culture
Venuti came to the conclusion that although translation is bound to be domestication
to some degree foreignization ldquopromises a greater openness to cultural differencesrdquo
(p 23) Like Schliermacher he subscribed to foreignization which he believed was
the proper way to effect the transfer of the source culture as it allowed the target
language to be influenced and amplified by the source language and open the way to
novelty and innovation in the target language Thus translation as ldquocultural transferrdquo
leaves a choice open to each individual translator Either she chooses foreignization
TRANSLATION AS CULTURAL TRANSFER
37
preserving the alien elements in the target text or she chooses domestication ironing
these out to make the target text readily comprehensible to the reader The choice in
practice depends on the particular skopos that the translator intends
It is crucially important to understand the opposed notions of ldquodomesticationrdquo
and ldquoforeignizationrdquo very clearly if we wish to understand precisely what is involved
in effecting cultural transfer Whether a translation exhibits domestication or
foreignization can only be determined where the context reveals cultural asymmetry
and is examined as such12 In other words it is only when directly confronted with the
problem of translating a culture-specific item that the translator has to make a choice
between the two strategies A common misunderstanding is that the translator is
always engaged in make such a choice even when translating items that are not
culture-specific Consider the translation of the two English terms ldquoInternetrdquo and
ldquoSarsrdquo into Chinese For each term we can have at least two translations yinte wang
(英特網) and hulian wang (互聯網) for ldquoInternetrdquo shashi (沙士) and fei dianxing
xing feiyan (非典型肺炎) for ldquoSarsrdquo It is interesting to note that the linguistic
formation of the translated terms yinte wang (英特網) and shashi (沙士) may seem
ldquoforeignrdquo to the Chinese reader and hence are considered as ldquoforeignizedrdquo terms
However both ldquoInternetrdquo and ldquoSarsrdquo are terms which represent non-culture-specific
concepts ldquoyinte wang (英特網) and shashi (沙士) differ from hulian wang (互聯網)
and fei dianxing xing feiyan (非典型肺炎) only in that they are transliterations rather
12 In an attempt to define translation strategy Kwiecinski (2001) provided a rather comprehensive
definitionldquohellip translation strategy hellip may be definedhellipas a textually manifest norm-governed
intersubjectively verifiable global choice of the degree in which to subscribe to source-culture or
target-culture concepts norms and conventionrdquo (p 120) Despite the complicated modification of the
word ldquochoicerdquo one thing we could see clearly is that translation strategy always involves a choice in
relation to culture-specific elements
TRANSLATION AS CULTURAL TRANSFER
38
than semantic translations a difference solely in translation technique The question
of whether this is foreignization simply does not arise here Likewise hulian wang
(互聯網) and fei dianxing xing feiyan (非典型肺炎) though readily comprehensible
in their linguistic form are not cases of domestication because no foreign culture is
involved here Put differently whether a translation is a case of domestication or
foreignization cannot be determined by the naturalness or foreignness of its linguistic
form alone
So what do we actually do as translators when we come across culture-specific
items If we choose to domesticate we just need to find an item in the target language
as a linguistic substitute leaving the target language as it is For example translating
the English idiom ldquothere is no smoke without firerdquo into wufeng buqi lang (無風不起
浪) (no waves without wind) actually replaces the English idiom with a similar one in
Chinese both mean that there must be a reason for the result No linguistic and
conceptual adjustment on the part of the target language is required Any peculiarity
in this way of expressing causality in English is no longer discernible in the
translation ie the cultural meaning of the source language has been domesticated or
naturalized
In contrast to foreignize means to import the source culture into the target
culture This can be achieved in two ways One is to foreignize at both the linguistic
and conceptual levels ie calling on the target language to make both linguistic and
conceptual adjustments Take the example of the English translation of the Chinese
term li (禮) one of the key concepts in Confucianism When it is translated as li (禮)
using the technique of transliteration (direct borrowing) it evidently introduces to the
target reader a new linguistic form Adjustment also needs to be made on the
TRANSLATION AS CULTURAL TRANSFER
39
conceptual level so that the English reader can understand the cultural meaning of the
coined English term li in the light of Confucianism The other way is to foreignize
only at the conceptual level ie without involving any linguistic adjustment In the
same example when li (禮) is translated as ldquomoralityrdquo ldquoproprietyrdquo or ldquoritualrdquo the
translator uses an existing English word as its equivalent However when the
translator makes it clear to the English reader that ldquomoralityrdquo ldquoproprietyrdquo or ldquoritualrdquo
should not be understood in their usual senses in English but should be re-defined and
understood with reference to Confucianism an intention to foreignize is revealed We
can see that in either case conceptual adjustment is a must while linguistic adjustment
is not really essential However there are as will be shown cases when where a
particular linguistic structure in the source text may embody the culture of the source
language In such cases the translator has to preserve the linguistic features of the
source text and linguistic and conceptual adjustments of the target language are
required In a nutshell cultural transfer as foreignization requires the translator to
import the culture-specific elements into the target culture regardless of whether the
foreignness is reflected in the linguistic form of their translations The discussion
above only serves as a simplified model for discussing the theoretical framework of
effecting cultural transfer we will introduce It will be elaborated further in the next
section
It is now clear that ldquocultural transferrdquo when employed to characterize translation
as a socio-cultural activity rather than a mere act of linguistic recoding has in fact
been understood in two diametrically opposite senses On the one hand it has been
taken to mean the mapping of the cultural elements of the source text onto their
functional equivalents in the culture of the target text an approach which aims to
facilitate cross-cultural communication without making any linguistic or conceptual
TRANSLATION AS CULTURAL TRANSFER
40
adjustment on the part of the target text by way of domestication On the other hand
the term ldquocultural transferrdquo has also been taken to mean the importation of the source
culture into the target culture an approach which requires linguistic and conceptual
adjustments on the part of the target language
22 Legal Translation as Cultural Transfer
221 Legal Transplant and Legal Translation
The tree transplanting metaphor that Vermeer uses to illuminate translation
studies has a close counterpart in studies of comparative law namely legal transplant
which according to Alan Watson (1974 p 21) is ldquothe moving of a rule or a system
of law from one country to another or from one people to anotherrdquo And interestingly
enough just as there is a perennial debate in translation studies over the translatability
of law there is one in comparative law over the transplantability or transferability of
law
Legrand a strong opponent of the whole idea of legal transplant contends that
the word ldquotransplantrdquo itself already implies its impossibility
To ldquotransplantrdquo according to the Oxford English Dictionary is ldquoto remove and repositionrdquo ldquoto
convey or remove elsewhererdquo ldquoto transport to another country or place of residencerdquo
ldquoTransplantrdquo then implies displacement For the lawyerrsquos purposes the transfer is one that
occurs across jurisdictions there is something in a given jurisdiction that is not native to it and
that has been brought there from elsewhere What then is being displaced (1997 p 111)
TRANSLATION AS CULTURAL TRANSFER
41
For Legrand law is not simply ldquobare propositional statementsrdquo which can travel
across jurisdictions and can be understood without regard to ldquohistorical factors and
habits of thoughtsrdquo (Ibid p 113) Instead propositional statements work together with
their invested meaning to jointly constitute ldquorulesrdquo (Ibid pp 116-17) But because a
legal rule is culture-specific it is bound to be understood differently when integrated
into another legal system (Ibid p 117) Thus ldquoas the understanding of a rule changes
the meaning of the rule changes And as the meaning of the rule changes the rule
itself changesrdquo (Ibid p 117) Legrand remarks
In the words of Eva Hoffman lsquo[i]n order to transport a single word without distortion one would
have to transport the entire language around itrsquo13 Indeed lsquo[i]n order to translate a language or
a text without changing its meaning one would have to transport its audience as wellrsquo14 hellip
So the transplant does not in effect happen a key feature of the rulemdashits meaningmdashstays
behind so that the rule that was lsquotherersquo in effect is not itself displaced over lsquoherersquo hellip Meaning
simply does not lend itself to transplantation There always remains an irreducible element of
autochthony constraining the epistemological receptivity to the incorporation of a rule from
another jurisdiction15 therefore limiting the possibility of effective legal transplantation itself
The borrowed form of words thus rapidly finds itself indigenized on account of the host culturersquos
inherent integrative capacity (Ibid p 118)
hellip
[So] [a]t best what can be displaced from one jurisdiction to another is literally a meaningless
form of words To claim more is to claim too much In any meaning-ful sense of the term lsquolegal
transplantrsquo therefore cannot happen No rule in the borrowing jurisdiction can have any 13 Original note 16 Eva Hoffman Lost in Translation (Minerva 1991) at 175 14 Original note 17 Ibid at 272 15 Original note23 Eg FSC Northrop lsquoThe Comparative Philosophy of Lawrsquo 45 Cornell Law Quarterly (1960) 617 at 657 lsquoin introducing foreign legal and political norms into any society those norms will become effective and take root only if they incorporate also a part at least of the norms and philosophy of the native societyrsquo
TRANSLATION AS CULTURAL TRANSFER
42
significance as regards the rule in the jurisdiction from which it is borrowed This is because as it
crosses boundaries the original rule necessarily undergoes a change that affects it qua rule The
disjunction between the bare propositional statement and its meaning thus prevents the
displacement of the rule itself (Ibid p 120)
Legrandrsquos argument is simply this Anything culture-specific cannot be transplanted
from one culture to another without change Law as underpinned by its rules is
culture-specific Therefore law cannot be transplanted from culture jurisdiction to
another without change The impossibility of legal transplant also entails the
untranslatability of law A text of law when translated from one culture jurisdiction
to another will no longer preserve the meaning of the original text ie it is not the
text of the same law just as in Vermeerrsquos botanical metaphor the text was not be the
same as before16
In response to Legrandrsquos criticism Watson (2006) makes two points which are
relevant to the present study and worth discussing at some length First taken to the
extreme no word means exactly the same even for people who speak the same
language in the same country ldquoBreadrdquo for a poor village housewife does not have the
same meaning as for the wealthy Parisian businessmen (p 2) The same is true for law
within the same country Watson gives the following example
16 In an attempt to avoid the difficulties inherent in the transplant metaphor Langer (2004 pp 32-35)
used translation as a metaphor to explain the circulation of legal ideas rules practice and institutions
First it retains the comparative dimension as it distinguishes between the source text and the target text
of the law Secondly it can explain the loss of meaning Thirdly it can explain the transformation
which the source legal system undergoes as a result of its exchange with the target legal system
Finally it can explain ldquothe transformation which the linguistic and social practices of the target legal
system undergo under the influence of the translated text While these are valid points they cannot
resolve the transplantability problem because the translatability of law is the question at issue here
TRANSLATION AS CULTURAL TRANSFER
43
The possession of cocaine is hellip illegal That means one thing to the petty dealer who sees it as
his sole hope of escaping from his ghetto quite another to the recreational user quite another to
non criminals who live in the same street as the gangs quite another to law enforcement officers
It is banal to notice that the same legal rule operates differently in two countries it operates to
different effect even within one (p 2)
The point he makes here is a valid one Since we cannot say that a legal rule always
remains the ldquosamerdquo within a single jurisdiction we are even less entitled to speak of
its remaining the it is ldquosamerdquo transplanted from one jurisdiction to another
Secondly legal transplant does not preclude different interpretations of the
transplanted law Watson remarks
hellip where a written statutory law is the same within two countries its judicial interpretation may
well differ because of tradition and ways of legal thinking hellip But it is no rare thing for
academics to notice and pass on to practitioners the nature of these differences The very fact
that the statutory rule is the same may well cause legal thinking on it in different countries to
converge
I think I have no need to stress that I have long held that a transplanted rule is not the same
thing as it was in its previous home17 Nor need I stress my long-held view that it is rulesmdashnot
just statutory rulesmdashinstitutions legal concepts and structures that are borrowed not the lsquospiritrsquo
of a legal system Rules institutions concepts and structures might almost be termed tangibles
can easily be reduced to writing and are accessible (pp 2-3)
17Original note 4 See most recently Alan Watson La Out of Context Athens GA 2000 p 1
TRANSLATION AS CULTURAL TRANSFER
44
Watson then goes on to cite from legal history examples of legal transplants on a
grand scale (pp 4-8) which we need not consider for our present purpose The point
that needs stressing is that even though the transplanted law is likely to be given a
different interpretation recognition of the difference may still lead to convergence
Law is of course culture-specific Yet a good part of it is embodied in language It is
through translation that the law of a country is made accessible to other cultures And
as history has shown translation has been a major channel of cultural transfer
However there are many who while conceding that the aspects of law
mentioned by Watson are transplantable through translation the cultural significance
of law is not For instance Hiller contended
During the colonial period language from a British statute was imported into many of its
colonies18 whereby it was a crime for any person ldquobeing armed and having his face
blackened hellip (to) appear in any forest hellip or in any high roadrdquo under a wide variety of stated
circumstances The offence was ostensibly designed to deal with poachers and similar
wrongdoers Arming andor blackening onersquos face was enough to constitute a capital crime in
Britain19 The obvious cultural significance would have been lost in translation The language
would have been rather absurd in an African or Asian setting (1978 pp 157-58)
18 Original note 16 For example the Nigerian Criminal Code Cap 43 sec 417 (e) makes it a felony
for a person to have ldquohis face blackened with intent to commit a felonyrdquo Similarly see Kenya
Penal Code Cap 63 Sec 308 (3) (a) and Uganda Penal Code Cap 106 Sec 285 (1) (e) 19 Original note 17 George I c 22 (emphasis added) The statute enacted in 1713 became known as
ldquoThe Waltham Black Actrdquo simply as ldquoThe Black Actrdquo For a fascinating discussion of the Act see E
P Thompson Whigs and Hunters The Origin of the Black Act New York Pantheon Books 1975)
The Act is reproduced in full in Appendix I of the book
TRANSLATION AS CULTURAL TRANSFER
45
But what Hiller failed to see here is it is not the language that is absurd it is the
law (the ldquoBlack Actrdquo as it is called) When translated into an African or Asian
language the legal meaning of that law is not lostmdashthe person who understands its
translated version knows exactly what it prohibits but finds it absurd as he lives in a
country where hunting is a main source of food Indeed he does not understand why
there is such a law in his country If he is educated enough he may find out the reason
from a book on the history of English law Yet he may still not understand why such a
law is imposed on his people There may be a whole lot of whyrsquos he asks But one
thing he understands is If he does not want to get into trouble with the law he must
not blacken his face and appear in a forest or on a highway with a weapon If the
translation makes him understand that it has done what it is supposed to do
The Black Act was of course culture-specific enacted to address a particular
problem in England But this historical fact does not in any way render it
untranslatable into an African or Asian language Suppose its Chinese translation
reads ldquo任何人不得塗黑臉孔 攜帶武器出現在樹林中或公路上rdquo The translation
says what the Act says The ldquocultural significancerdquo which Hiller did not see in the
translationmdashlost in the translationmdashis not part of what the Act says This is a point
Hiller seems to concede But he goes on to say
hellip [T]ranslationmdashno matter how accuratemdashis not an adequate solution to the problem of
transferability of law The reason lies in the facts that both law and languages are carriers of
culture and that each culture has its own integrity and internal consistency20 These are the
20 Original note 20 ldquoWe may figure the task of the judge if we please the task of a translator the
reading of signs and symbols given from without None the less we will not set men to such a task
unless they have absorbed the spirit and have filled themselves with a love of the language they must
TRANSLATION AS CULTURAL TRANSFER
46
reasons not only why an imported law or institution will not work in the importing country the
way it did in the exporting country21 but more importantly why the importation of foreign
elements into a culture will lsquoskewrsquo the receiving culture in profound ways hellip (pp 158-59)
The successful transplant of a foreign law is of course not solely dependent on an
accurate translation Whether a foreign law can work in the importing culture or not is
a socio-cultural problem not a translation problem Translation can only do what it
can do It can only render a foreign law comprehensible to people of the importing
culture So we can well agree with Hiller that translation ldquois not an adequate solution
to the problem of transferability of lawrdquo Here ldquotransferabilityrdquo means ldquosuccessful
transplantrdquo not ldquosuccessful communicationrdquo While successful transplant requires
successful communication as a pre-condition translation alone cannot transfer the
socio-cultural conditions of a foreign law to the importing culture and makes it work
there The kind of transfer translation effects is linguistic and conceptual not
substantive
222 Translating the Common Law into Chinese as Cultural Transfer
When Hong Kong became a British colony in 1842 the British brought along a
whole lot of ldquoculture-specificrdquo things tangible and intangible of which the common readrdquo B N Cardoro The Notes of the Judicial Process (New Haven Yale University Press 1923) p
174 21 Bob Seldman stresses for example why we cannot assume that every properly socialized person will
know the law if that law is a product of a foreign system On ignorantia juris generally see R B
Seldman supra note 4 at 689 He says by way of illustration ldquoHowever well the system for the
promulgation of laws may work in England it may not and does not work adequately in Africardquo Id at
697
TRANSLATION AS CULTURAL TRANSFER
47
law was one Surprisingly enough it did not seem to occur to Legrand or Watson that
legal transplant as in the case of Hong Kong could pre-empt many of the questions
that triggered their long debate First the transplant was not from one jurisdiction to
anothermdashit was carried out within the same common law jurisdiction as Hong Kong
became a common law jurisdiction the moment the British flag was hoisted (or legally
even earlier) Second for nearly a century and a half the law was in the same
language as its home state namely English Third the law was administered and
practised by professionals from its home state or from other common law
jurisdictions or from the local community who spoke and were trained in the same
language of the law In a word except for some adaptations in areas such as marriage
and succession the common law was transplanted to Hong Kong en bloc Thus the
legal culture however estranged it was from the majority of citizens who were
Chinese-speaking was unmistakably a common law culture
The translation of the common law into Chinese was therefore by no means
carried out in an alien culture from the outset Rather it was carried out in the
transplanted culture of the common law There was no sharp distinction between
source and target cultures in the first place
Under the bilingual legislation system of Hong Kong the English text and its
Chinese counterpart must fulfill two conditions First they must have equal legal
status Second they must convey the same legal meaning The first condition must be
and was in fact met by legislative measures22 However how the second condition
can be met is still not clear to many translation scholars and practising law translators
22 The Interpretation and General Clauses Ordinance (Cap 1) was amended in 1987 to accord both
language texts of the law equal legal status
TRANSLATION AS CULTURAL TRANSFER
48
Some like Snell-Hornby have contended that equivalence in meaning is a chimera
an illusion or an unattainable goal Thinking along the line of Vermeerrsquos skopos
theory we have a definitive purpose here whatever we do and however we do it the
Chinese text must convey the same legal meaning as the English text in other words
the two texts must be equivalent in legal meaning If equivalence were indeed an
illusion then no multilingual legal system would be viable
Let us now re-examine the goal of legal translation now that we have a clearer
notion of cultural transfer in mind Legal translation is certainly among the varieties
of translations where the translator is subject to stringent semantic constraints at all
levels due to the peculiar features of the language of English law on the one hand and
the culturally mediated nature of legal discourse on the other To maintain the
authenticity of the law the cultural concepts which are specific to the original legal
system could not be replaced by functionally equivalent concepts of the Chinese
language Thus cultural transfer by way of domestication is not appropriate in legal
translation The authoritative status of legislation dictates that the goal of legislative
translation is to reproduce a legal text in the target language which conveys the same
legal meaning as the source text It requires the legal translator to adjust the target
language in such a way that the legal meaning of the source text could be expressed
by the target language Cultural transfer as foreignization is best exemplified in the
translation of a particular legal system from one language to another in the present
case the translation of the common law into Chinese
While Hong Kong ceased to be a British colony on July 1 1997 it has been
allowed to retain English law under Chinarsquos policy of ldquoOne Country Two Systemsrdquo
The laws previously in force namely the common law rules of equity ordinances
TRANSLATION AS CULTURAL TRANSFER
49
subordinate legislation and customary law together with the use of English as an
official language have been preserved under the Basic Law of the Hong Kong
Administrative Region
As has been noted the authoritative status of legal texts requires that the goal of
legal translation is to reproduce a legal text in the target language which has the same
legal meaning as the source text Regarding this Roebuck and Sin (1993) defined the
goal of translating the common law into Chinese 23
In attempting to create in Chinese an authentic version of a Common Law rule or principle it
is essential that the Chinese express exactly the same message as the original rule in English
insofar as its meaning is prescriptive (p 193)
23 Sin (1992) set out some basic conditions for the semantic equivalence in translating the Common
Law into Chinese in terms of bilingual legislation
All discussion about semantic equivalence will become futile if we do not focus on the aspect or
aspects of meaning relevant to a particular purpose So we can now define semantic equivalence
between two legal sentences in the following way
(1) Semantic equivalence = sameness in meaning with reference to the relevant
aspect(s)
(2) A sentence S in Language L is = S and Srsquo have the same meaning with reference to the
semantically equivalent to a relevant aspect(s) and S and Srsquo have the same
sentence Srsquo in Language L reference scheme
(3) The legal meaning of a sentence S = The prescriptive value of S
(4) A sentence C of the Chinese version = C and E have the same prescriptive value ie they
of the Common Law has the same prescribe the same behavior under the same
legal meaning as a sentence E of the behavior under the same circumstances and
English version of the Common Law conditions
(5) A sentence C in the Chinese version of the law is semantically equivalent to a sentence E in
the English version if and only if whatever interpretation given to E by the court is given to C (pp
96-99)
TRANSLATION AS CULTURAL TRANSFER
50
Sin (1998) pointedly voices the dilemma that the legal translator faced in seeking to
achieve such a goal
The tension between the translatorrsquos paramount duty to represent the law with
uncompromising accuracy on the one hand and the strong desire of the public to have the law
communicated to them in clear language on the other was deeply felt hellip It is a perennial
tension between the polarity of the two extreme approaches to translation characterized by
Schleiermacher (181342) ldquoeither the translator leaves the writer alone as much as possible
and moves the reader toward the writer or he leaves the reader alone as much as possible and
moves the writer toward the readerrdquo (p203)
Thus the inherent difficulties of the translation of the common law into Chinese
present a highly relevant case for our discussion of cultural transfer as foreignization
As a matter of fact cultural transfer as foreignization is not a novel idea in the
history of translation in China The translation of Buddhist scriptures is a much cited
paradigm of foreignization Although Buddhism became a popular religion in China
it originated in India and was unknown to the Chinese before the middle of first
century The translation of Buddhist scriptures into Chinese began in the Han dynasty
Many Buddhist concepts were new to the Chinese and there were no Chinese terms
expressing Buddhist concepts Xuan Zhuang (玄奘) the most influential figure in the
translation of Buddhist scriptures developed important translation techniques like
amplification omission borrowing and transliteration all effective methods to
introduce Buddhist foreign concepts into Chinese 24 Linguistic adjustments for 24 Xuanzhuangrsquos theory of the Five Untranslatables (五種不翻) or five instances where one should
transliterate (1) Secrets tuoluoni 陀羅尼 a Sanskrit curse (2) Polysemy baojia 薄伽 for a Sanskrit
word that has 6 meanings comfortable flourishing dignity name lucky esteemed (3) None in China
TRANSLATION AS CULTURAL TRANSFER
51
conceptual assimilation were made and with the gradual integration of the translated
texts into the Chinese language Buddhist concepts have now become an inseparable
part of Chinese culture This would not have happened if the domestication approach
had been adopted for the obvious reason that domestication would have turned
foreign Buddhist concepts into indigenous Chinese ones leaving Chinese culture
intact without incorporating Buddhism Examples of foreignization abound in the
history of translation not only in China but also in other parts of the world Whenever
a culture is transferred from one language to another there is always a need for
conceptual adjustment which invariably results in the foreignization of the importing
language The translation of the common law into Chinese is simply one such case
223 Metalinguistic Devices and Cultural Transfer in Legal Translation
As has been noted the primary aim of legal translation in the context of bilingual
and multilingual legislation is to prepare different language versions of one and the
same law This means that they must convey the same legal meaning Thus semantic
equivalence is presupposed by all bilingual and multilingual legislation systems
The term ldquoequivalencerdquo has been used in the literature to define successful
translation or to describe the ideal result of translation 25 and the concept of
yanfu tree 閻浮樹 a kind of tree that does not grow in China (4) Deference to the past Anouputi (阿
耨菩提) for a special kind of knowledge This transliteration is an established usage (5) To inspire
respect and righteousness banruo 般 若 (Prajna) instead of ldquowisdomrdquo ( 智 慧 )
(httpenwikipediaorgwikiChinese_Translation_Theory accessed on May 5th 2007)
25 Various definitions of translation given by translation theorists based on the notion of
ldquoequivalencerdquo are as below
TRANSLATION AS CULTURAL TRANSFER
52
equivalence has been variously defined in terms of functional equivalence conceptual
equivalence semantic equivalence formal equivalence dynamic equivalence lexical
equivalence syntactic equivalence textual equivalence and pragmatic equivalence
Since legal translation is primarily concerned with the translation of legal concepts it
is ldquoconceptual equivalencerdquo or ldquosemantic equivalencerdquo (sameness in legal meaning)
that we have to achieve Conceptual equivalence requires that different language
versions of the law must convey the same legal concept(s) in question Doubts have
been raised as to whether conceptual or semantic equivalence can be achieved If it
could be shown that semantic equivalence cannot be achieved then all bilingual and
multilingual legislation systems would be groundless Thus it is of paramount
importance in legal translation that semantic equivalence can be shown to be possible
Language can be viewed as a system of symbols codes or signs As is well
known Saussurersquos dualism of the signifier (sound image or the word) and the
signified (concept) was developed by Peirce by way of a triadic relationship of the
sign and subsequently by Ogden and Richards by way of the semantic triangle26
According to the semantic triangle words are the means of representing concepts in a
Translation may be defined as follows the replacement of textual material in one language (SL)
by equivalent material in another language (TL) (Catford 1965 p20)
Translating consists in reproducing in the receptor language the closest natural equivalent of the
source-language message (Nida and Taber 1969 p12)
[Translation] leads from a source-language text to a target-language text which is as close an
equivalent as possible and presupposes an understanding of the content and style of the original
(Wilss 1982 p62) 26 The Semantic Triangle is a model showing the relationship between the words the concepts and the
referents that words represent The semantic triangle by adding ldquoreferentrdquo to Saussurersquos dualism of
word and concept contains three elements (a) symbol (signifier)mdashword being perceived (b) reference
(signified)mdashthe concept of what being perceived (c) referent (object)mdashthought or thing being
perceived
TRANSLATION AS CULTURAL TRANSFER
53
language no matter whether such a concept is directly coupled with a referent in
reality or not In other words any word has a referent in reality however indirectly
and all concepts can be described by their manifestations in reality If a word refers to
a certain object directly perceivable in reality then we have a typical case of the
semantic triangle of word concept and referent If a word denotes an abstract concept
which has no direct referent in the physical world the referent in the semantic triangle
may not be directly perceivable in reality but still can be explained by means of
observable objects
Similarly the referents of legal concepts can be directly or indirectly described
by their manifestations in reality This is especially true due to the nature of the law
as Sin (1992) points out
Law is a set of rules which prescribe and regulate human behaviour Legal systems differ only
in the content but not in the nature of such rules hellip One important property of human behavior
is that it is publicly observable Accordingly all legal systems can be understood in the light
of human behavior observable in identifiable circumstances and conditions hellip Human
behaviour as well as the circumstances and conditions in which it is observed can be
described with sufficient precision in any language (p 95)
In legal translation the translated version should prescribe the same behaviour as
does the original version ldquonot only by virtue of its legal authority but also by virtue of
its legal meaningrdquo (Sin 1992 p 95) The translated version can acquire the same
legal meaning as the original version only when the legal meaning of the translated
version is construed in the light of the semantic reference scheme of the original
TRANSLATION AS CULTURAL TRANSFER
54
version Sin (1992) goes on to analyze the goal of legal translation in terms of
semantic equivalence
although no two texts in different languages are identical in all aspects of meaning semantic
equivalence hellip can still exist between them if they are compared with reference to the same
aspect of meaning hellip (and) should be defined in terms of sameness in legal meaning which is
evidently the most relevant aspect of meaning they should have in common (p 96)
One may still ask In what way can semantic equivalence be achieved in
translation when the languages in question do not contain concepts that are exactly the
same or when the meanings or concepts of the source language which we generally
refer to as cultural concepts are different from or even absent in the target language
The answer to this question can be found in Feyerabendrsquos (1987) insightful
observation on Evans-Pritchardrsquos translation of the Azande language When
translating the Azande word ldquombismordquo the translator decided to translate it as ldquosoulrdquo
in English but this is not the end of it The translator added that ldquosoulrdquo in English
implies life and consciousness while ldquombismordquo in Azande covers a collection of
public or ldquoobjectiverdquo events The significance of the translatorrsquos note is fourfold First
it draws attention to the fact that the use of the word ldquosoulrdquo in itself constitutes a
problem Second it makes the word ldquosoulrdquo more suitable for expressing what Azande
people have in mind Third it redefines an English notion to accommodate elements of
a new concept Fourth it effects conceptual change ie cultural transfer at the
metalinguistic level (pp 267-68) Feyerabend sums up all these points in a well
formulated general principle of translation ldquoSuccessful translations always change the
medium in which they occurrdquo (p 266) The importance of this principle can never be
overstated for it shows that any successful transfer of culture must change the
TRANSLATION AS CULTURAL TRANSFER
55
importing language and that such transfers must be effected at the metalinguistic
level
The concept of metalanguage is not new in translation studies 27 Before
Feyerabend Roman Jakobson had pointed out that the metalinguistic function was
one of the major functions of language He noted
A faculty of speaking a given language implies a faculty of talking about this language Such a
lsquometa-linguisticrsquo operation permits revision and redefinition of the vocabulary used cognitive
experience and its classification is conveyable in any existing language Whenever there is
deficiency terminology may be qualified and amplified by loanwords or loan-translations
neologisms or semantic shifts and finally by circumlocutions (Quoted in Chesterman 1989 p
56)
As can be seen even if the concept a certain word designates exists in one
language but not in another the referent (direct or indirect) the word and concept
stand for can always be replaced by a word in another language by way of linguistic
adjustment28 in the form of a loan word a descriptive phrase or a newly coined word
In the case of translation the various metalinguistic devices adopted by the translator
27 Gombert (1992 p 1) discussed the definition of the term metalanguage
In a more general sense the word metalanguage is used to refer to the language where natural or
formalized (as in logic) which is itself used to speak of a language More precisely as
Benveniste (1974) emphasizes this word refers to a language whose sole function is to describe
a language 28 In this study we use the concept of ldquoformrdquo only in the sense of ldquolinguistic formrdquo that is as the form
of a language sign in opposition to its meaning As meaning is the property of a language which is
manifested through language and embodied in language For any existing language sign there are two
sides of it the form and the meaning of it
TRANSLATION AS CULTURAL TRANSFER
56
are often explicitly stated in hisher explanatory notes And it is at the metalinguistic
level that conceptual semantic equivalence is achieved A word in the target
language is defined as the equivalent for its counterpart in the source language29 That
is to say two different signs are made to denote one and the same concept
Thus understood foreignization is simply a metalinguistic operation whereby
cultural transfer is effected In this study conceptual semantic equivalence is not
understood as the one-to-one correspondence between languages which is absent as
languages stand but as a semantic relationship at the metalinguistic level Put simply
conceptual semantic equivalence is not found but created It results from a most
common-or-garden metalinguistic operationmdashmaking two things stand for one and
the same concept It should now be clear how different language texts produced by
translation can convey the same legal meaningmdashthey are simply made to do so
29 In trying to solve the problem of translation equivalence Neubert postulates that from the point of
view of a theory of texts translation equivalence must be considered a semiotic category comprising a
semantic syntactic and pragmatic component following Pierces categories These components are
arranged in a hierarchical relationship where semantic equivalence takes priority over syntactic
equivalence and pragmatic equivalence conditioning and modifying both the other elements
Chapter 3
The Concept of Legal Culture in Legal Translation
31 Previous Studies of Legal Culture
311 Law and Culture
Since cultural transfer as foreignization is best exemplified in legal translation it
will be helpful here to explore the concept of legal culture with practical reference to
the translation of the common law into Chinese The study is not confined to the
complete comprehension of a legal discourse which contains unstated legal
conventions (cultures) embedded deep in the linguistic form It concerns itself more
with how unstated legal elements can be transferred in legal translation If legal
culture is taken to mean culture in relation to law then gaining insight into the
concept of legal culture will enable us to understand the relation between culture and
law
The concept of culture is plagued with definitional problems A number of
anthropologists have offered useful accounts of the concept of culture Raymond
Williams Culture and Society (1961) is often credited with helping to instigate what
is now known as cultural studies In an attempt to identify the concepts and
definitions of culture the eminent anthropologists Alfred Kroeber and Clyde
Kluckhohn (1963) approached culture as a traditional crystallization with traditional
values at the centre of the culture Next translation theorist Peter Newmark (1988)
gave a rather comprehensive definition of culture ldquoas the way of life and its
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 58
manifestations that are peculiar to a community that uses a particular language as its
means of expressionrdquo (p 94)30 Legal scholar D J Black (1976) defined culture as
ldquothe symbolic aspect of social life including expressions of what is true good and
beautifulrdquo (p 61) It encompassed such things as ldquoideas about the nature of realityrdquo
ldquoconception of what ought to bersquo and ldquoaesthetic life of all sortsrdquo (p 61) For Black
culture included all kinds of ideas concepts and beliefs as manifested in language
behaviour and lifestyle A more recent definition from Bates and Plog (1990) states
that culture is ldquothe system of shared beliefs values customs behaviours and artifacts
that the members of society use to cope with their world and with one another and
that are transmitted from generation to generation through learningrdquo (p 7)
Law is just one part of culture that actively contributes in the composition of
social relations Sarat and Kearns (1999) pointed out that ldquowith the growing attention
to legal consciousness and legal ideology in socio-legal studies legal scholars have
come regularly to attend to the cultural lives of law and the ways law lives in the
domains of culturerdquo (p 5) Black (1976) defined law as ldquogovernmental social
controlrdquo Social control was in turn defined as ldquoresponse to deviant behaviourrdquo of
every kind including ldquolaw etiquette custom ethics bureaucracy and the treatment of
mental illnessrdquo (p 9) The concept of law occupies a central place in Blackrsquos theory
In his view the grown tree of cultural tradition imposes core legal meanings that can
be traced down to historical roots Conventionally the study of law with relation to
culture is the study of a complex whole which includes knowledge belief art morals
30 Newmark further classified culture into five categories Ecological culture such as plants animals
winds landscape etc material culture such as food clothes transport etc social culture such as work
and leisure culture of organizations customs activities procedures concepts and culture of gestures
and habits (p 83)
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 59
legal custom and any other capabilities and habits acquired by man as a member of
society
Previous studies of legal culture have thus exhibited multiple perspectives and
approaches Research interests in legal culture arise mainly from inter-disciplinary
studies especially comparative law and social science although the range of subjects
judged relevant to the concept of legal culture varies from study to study Because
sociologists comparativists and other theorists have very different ideas about what
constitutes ldquolegal culturerdquo many different views and practices are subsumed under the
same concept It is a concept that is frequently employed as a convenient cover term
for a large number of phenomena the general status of law in a society specific
structures of law opinions with regard to law by the general public or legal
professionals particular practices or behaviours of legal institutions or legal
professionals Legal culture has often been analyzed in its relation to particular
countries and legal systems There is an extensive literature on the legal culture of
specific countries In addition there are numerous works (especially works by
scholars of comparative law) discussing and analyzing the distinctive characteristics
and cultures of the two main legal systems the civil law and the common law31 The
concept of legal culture seems to be an all encompassing referential and explanatory
instrument for all relevant theoretical studies As is the case with the concept of
culture a common understanding of legal culture seems impossible to achieve In
31 Scholars of comparative law may be in a better position to analyze different legal cultures between
civil law and the common law if they acknowledge the fundamental and profound distinctions between
these two major legal traditions There is an inclination to treat them as homogenized in spite of the
fact that they operate in different jurisdictions The characteristics of the common law and civil law
have often been discussed with special reference to the development of legal tradition again a process
of crystallization
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 60
addition it is hard to engage in any analysis without asking ldquolegal culture in what
sense of the term or in relation to what kind of research subjectrdquo Therefore instead
of falling into the trap of defining legal culture as some kind of unitary force we
intend to describe and analyze the substantive contents that constitute the culture of
law with regard to legal translation studies We will begin with a review of how the
concept of legal culture has been conceived in previous studies
Since the notion of culture is hard to define due to its multifarious interpretations
in the literature there is no standard definition of culture However many scholars
accept the postulates provided by Bates and Plog (1990) as a working version Culture
is thus defined here sociologically as the typical ways of living built up by a people
including the beliefs and attitudes which support them Culture under such a
treatment finds its expression on two levels (1) shared beliefs and values conceived
by particular members of society and (2) the customary behaviours they practice
Studies relating to legal culture cover many aspects and it is not necessary for our
present purpose to give a comprehensive account of all those extended explorations
Rather we need is to isolate the variables that legal culture can refer to and then to
identify among these variables which sense of legal culture legal translation has to
deal with Some of the major variables for this concept of legal culture are
- Shared attitudes values and opinions (Friedman 1975 p 76)
- Legal ideology (Cotterell 1997 p 22)
- Shared norms and modes of thinking (Ginsburg 2003 p 1337 )
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 61
- Legal studies legal education and legal theory addressing legal conceptions
policies and reasoning and education (Atias 1986 pp 1118-9 )
- Legal reasoning that cultivated a series of principles of the case law (Atiyah
(1987 p 323)
- Legal principles best represent the spirit of rule of law (Kuan 1997 pp
187-205)
- Attitudes and beliefs lie in legal tradition (Pound1937 Merryman 1985)
- ldquoLaw in bookrdquo ldquolaw in actionrdquo ldquoelite legal consciousnessrdquo and ldquolegal
behavioursrdquo (Blankenburg amp Bruinsma 1994 pp 39 42)
- ldquoMentalitiesrdquo ldquomode of thinkingrdquo ldquothe method of reasoningrdquo and ldquolegal
trainingrdquo (Curran 1998 p 70)
As this list suggests the concept of legal culture in general discussions refers to
such varied elements that the variables mentioned need to be categorized if they are to
assist our further analysis Just as with culture in the broad sense the concepts of legal
culture discussed by scholars can be categorized in two ways Legal culture may refer
to peoplersquos conceptions of law alone or to both peoplersquos conceptions and their specific
practices of law32
32 To select a term that could best cover the numerous parameters in relation to the totality of peoplersquos
thought referred to in extensive studies by scholars from different disciplines we considered of
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 62
312 Legal Culture as Conceptions of Law
Viewing legal culture as conceptions widely held by people within a society
country or legal system theorists tend to concentrate on the thought-related
expression of legal culture In an attempt to bring out the idea that particular legal
systems operating in a social context have cultural and ideological presuppositions
and implications Friedman (1977) distinguished between ldquointernal legal culturerdquo and
ldquolay legal culturerdquo after giving his general definition of legal culture ie ldquoattitudes
values and opinions held in society with regard to law the legal system and its
various partsrdquo He observed that such ldquoattitudes values and opinionsrdquo could be
divided into two sets that of the ldquogeneral publicrdquo and ldquothat of lawyers judges and
other professionalsrdquo (p 76) For Friedman (1997) the concept of legal culture was a
useful way to categorize a range of phenomena in the field of law (p 33) This
position was first criticized by Cotterrell (1997) who held that it is impossible to
develop a concept of legal culture with sufficient analytical precision and that the
concept works more as an ideal than as a set of variables He basically rejected the
concept of legal culture as a way of identifying the exact relationship existing among
social phenomena such as characteristic institutions and patterns of thought and belief adopting the term ldquoideologyrdquo as proposed by Cotterrell (1997 pp 21-22) However the term
ldquoideologyrdquo has been notoriously tainted with political implications and is therefore misleading We thus
finally decided to use the more neutral and general term ldquoconceptionrdquo which serves our purpose of
generalizing the many variables pertaining to totality of thought (as distinct from totality of practice or
behaviour) that legal culture can refer to The definitions of ldquoconceptionrdquo in the OED online dictionary
are as follows (a) The action or faculty of conceiving in the mind or of forming an idea or notion of
anything apprehension imagination (b) The forming of a concept or general notion the faculty of
forming such pl Thoughts meditations courses of thought (c) That which is conceived in the mind
an idea notion (d) An opinion notion view (e) Something originated in the mind a design plan an
original idea (as of a work of art etc) a mental product of the inventive faculty (OED Online
Dictionary httpdictionaryoedcom accessed on August 2007)
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 63
He viewed the concept of legal culture as merely a convenient concept to ldquorefer
provisionally to a general environment of social practices traditions understandings
and values in which law existsrdquo (pp 21-22) Cotterrell thus preferred to use a more
specific notionmdashlegal ideology For him this represented legal doctrines ldquobeliefs
attitudes and valuesrdquo that ldquocan be translated into regulatory practicesrdquo (p 22)
Friedman (1997) contended that while vague and difficult to define there are many
fundamental concepts like ldquostructurerdquo or ldquosystemrdquo which constitute the building
blocks of social science (p 33) The concept of legal culture which he regarded as
falling into this class is useful for categorizing a range of phenomena in the field of
law (p 33) In reaction to Cotterellrsquos proposal to substitute the notion of legal culture
for that of legal ideology Friedman observed that legal ideology fell into his
classification of internal legal culture an aspect of culture that finds particular
resonance with scholars and legal professionals many of them have attached great
importance to ldquolegal ideologyrdquo especially legal doctrines (p 38) Friedman then
pushed the centre of his study of legal culture to what he called ldquolayrdquo legal culture (p
39)
Following Friedmanrsquos dichotomy between external and internal legal culture
Ginsburg (2003) noted that legal culture as characterized by legal scholars could be
defined in two ways On the one hand legal culture could be viewed in terms of its
intimate association and active interaction with a social and national culture
(Friedmanrsquos external legal culture) On the other hand legal culture could be regarded
as the internal legal culture featuring the ldquoshared normsrdquo and mode of thinking of
legal professionals that resulted from their common training (p 1337) Farrar and
Dugdale (1990 p 246) preferred to confine the concept of legal culture to internal
legal culture since they shared Watsonrsquos view that ldquolaw is more an expression of the
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 64
culture of the lawmaking elite rather than that of society at large and that the variety
of interests and attitudes possessed by such elites may thwart attempts to generalizerdquo
Although Friedmanrsquos dichotomy of legal culture makes it easier to further explore the
nature of legal culture it is undeniable that an essential substance of any legal system
is the culture of the legal professionals
Atias (1986) observed from the perspective of American law that legal culture
had been a well received and commonly used term among American legal researchers
The notion of American legal culture itself however still lacked conceptual precision
and deserved ldquobetter treatmentrdquo In view of this he proposed that ldquothe notion of
traditional scholarly orderrdquo as a springboard for the study of the notion of American
legal culture (p 1122) Atias believed that legal culture was based on the rich history
of legal studies and legal education while legal studies encompassed various legal
theory addressing legal conceptions policies and reasoning and education (pp
1118-9) Cultural consistency and enrichment came from the progressive
sedimentation of continuous efforts jointly made by the legal profession especially
lawyers jurists and judges to uphold those legal principles that finally ldquosurvive the
most conclusive criticisms and preserve their appealrdquo (p 1134) Atias concluded that
ldquothe study of the legal culture is thus the study of its progressive and never finished
formationrdquo (p 1135) In similar vein Atiyah (1987) held that the legal culture of the
common law included legal reasoning that cultivated a series of principles of the case
law and consequently ldquoEnglish statute has traditionally been drafted in such detail that
it can be said to be a catalogue of rulesrdquo (p 323) As we shall see both legal theory
and legal reasoning are definitely a reflection of views and beliefs about law thus
putting law in a cultural context
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 65
In Mineshimarsquos (2002) view the notion of the rule of law was the foundation of
any given legal system or legal culture This notion was determined by the traditions
and attitudes such as the views on the role and functions of the state the law and the
legal system In other words legal culture consisted of the traditional attitudes
towards the role and functions of the state the law and the legal systems (p 74) Kuan
(1997) also considered the idea of rule of law as an integral part of legal culture She
held that the legal culture of the common law lay in the concept of the rule of law
which found its expression in various legal principles (pp 187-205) For her the
seven most important common law principles embodied in the concept of rule of law
were ldquono law no crime equality before law law binds the ruler judicial
independence inborn rights obligations over rights and presumption of innocencerdquo
(p 195)33
If legal culture is regarded as peoplersquos conceptions of law it is appropriate to
probe its historical roots and philosophical foundation to search out how and where
legal tradition comes into play thus affirming that legal tradition is the basis of legal
culture Pound (1939) highlighted the concept of legal tradition when comparing the
characteristics of the common law and civil law For him the legal culture of the
common law contained those distinct traits derived from its legal tradition Another
33 Kuan also incorporated Betty Tsursquos argument that ldquothe concept of the rule of law is represented by
three items nullum crimen sine lege exercise of arbitrary power by the police and equal opportunity
before the courtsrdquo (p 190) Kuan gave a more detailed description of the rule of law ldquothe rule of law
is deconstructed into four theoretical aspects legal freedom legal equality rights-based autonomy of
law and due process Legal freedom meaning freedom from arbitrary government is defined by the
principle of lsquono law no crimersquo Legal equality consists of two principles the general principle of
lsquoequality before lawrsquo and the specific principle of lsquolaw binds the rulerrsquo The complex aspect of legal
autonomy is expressed by three principles lsquojudicial independencersquo lsquoinborn rightsrsquo and lsquoobligations
over rightsrsquo The last aspect of due process is defined in terms of the principle of lsquopresumption of
innocencersquo (pp 202-03)
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 66
American comparativist Merryman (1985) gave legal tradition a more detailed
description ldquoa legal tradition (as opposed to a system) is a set of deeply rooted
historically conditioned attitudes about the nature of law about the role of law in the
society and the policy about the proper organization of the operation of a legal system
and about the way law is or should be made applied and studied perfected and
taughtrdquo (p 2) For Merryman the shared cultural traits of different legal systems have
their origin in legal tradition in other words legal tradition is what endows them with
those shared cultural traits In this sense legal culture comes from legal tradition
However many have contended that the difference between legal tradition and
legal culture is merely one of emphasis Legal tradition signifies a historical
perspective while legal culture refers more to the anthropological ethnic or
socio-political perspective of law As we shall see legal culture is regarded as
peoplersquos conception of law either in its contemporary manifestation or in its historical
growth ie legal tradition The term ldquolegal culturerdquo is concerned more with
theoretical or ideological opinions than with actual behaviours or practices
313 Legal Culture as Both Conceptions and Practices of Law
For other scholars legal culture not only refers to what is conceived in peoplersquos
mind but also to their behaviours and practices with respect to law In a comparative
research on differences between the common law and civil law Curran (1998)
acknowledged that there were fundamental differences between the common law and
civil law with respect to ldquomentalitiesrdquo ldquomode of thinkingrdquo ldquothe method of reasoningrdquo
and ldquolegal trainingrdquo that can be considered as composing elements of legal culture (p
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 67
70) Curran then analyzed the ldquoattributesrdquo that were ldquocharacteristic of common-lawrdquo
legal culture ldquobut uncharacteristic of civil-lawrdquo legal culture by observing that the
common law was ldquoa law defined in terms of past judicial decisionsrdquo and evolved with
the legal rules from ldquoprior judicial decisionsrdquo while the civil law attached more
importance to codification (pp 71-75) Curran also noted that ldquothe prominence of the
proceduralrdquo was another distinct feature in common law legal culture (p 81) Most
importantly common law legal professionals had been habitually skilful in ldquoreasoning
by analogyrdquo and produced ldquoan accumulated body of arguably similar and dissimilar
prior casesrdquo and ldquoconsequently statutory norms are lain on a Procrustean bed of
precedents even when they have never yet been subject to adjudication in the relevant
jurisdictionrdquo (p 83) Curran then concluded that ldquothe significance of the common law
thus resides in the case law even where the common-law court is applying a statute
and even where the statute is newrdquo (p 83)
Blankenburg devoted many years and much literature to the study of legal
culture Blankenburg amp Verwoerd (1988) observed that there were two conceptions of
legal culture One conception treated law as a system consisting of rules and
principles The other viewed legal culture not only as the above rules and principles
but also as the institutional practices attitudes and behaviour of legal actors (p 10)
Blankenbrug amp Bruinsma (1994) reinforced the above view in another study of Dutch
legal culture They identified Dutch legal culture at four levels (1) ldquolaw in booksrdquo (2)
ldquolaw in actionrdquo (3) legal behaviours such as litigation preferences and (4) ldquoelite legal
consciousnessrdquo (pp 13-14)34 In another comparative work Blankenburg (1998)
34 In giving a detailed description of ldquolaw in booksrdquo Blankenburg (1998) held that it ldquocomprises the
body of substantive as well as procedural law that is considered legally valid helliprdquo As for the concrete
substances of ldquolaw in actionrdquo Blankenburg (1998 p 13) claimed that it ldquois channeled by the
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 68
investigated the patterns of legal culture by comparing the legal institutions with those
of Germany He argued that legal culture was ldquocharacterized by indicators of
institutions as well as behaviourrdquo (p39) Acknowledging that the conception of legal
culture was a comprehensive one he extended Friedmanrsquos ldquooperational definitionsrdquo of
legal culture ie attitudes values and beliefs to ldquointerrelationship of various levelsrdquo
that were more suitable for comparative and descriptive studies (p 40) These levels
are (1) ldquopatterns of legal behaviourrdquo such as litigation behaviour (2) ldquopatterns of
legal consciousnessrdquo (3) patterns of institutional behaviour such as ldquothe legal training
the composition of the legal profession the organization of courts and the
infrastructure of access to themrdquo (p 41) Blankenburg held that patterns of legal
culture (the above three levels) could serve as indicators when comparing legal
cultures We can see that the above researchers are not satisfied with limiting the
concept of legal culture merely to conceptions of law held by people Moreover they
employ the concept of legal culture to refer to a wide range of phenomena such as
litigation preferences in a society the practice of legal training and education and
shared behavioural patterns among legal professionals For our present purpose we
will consider legal culture less as a universal value system that directs peoplersquos
actions and more as a variety of conceptual instruments for classifying attributes of
peoplersquos conceptions and practices We will additionally focus more on those aspects
of legal culture which have a direct bearing on our inquiry into legal translation
institutional infrastructure of the legal system Two important elements of this infrastructure are the
judicial court system and the legal profession In their shadow para-judicial institutions may be
substitutes for the formal court system and the legal profession helliprdquo (p 13)
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 69
32 Clarification of the Concept of Legal Culture
Concerning the actual relevance of legal culture to legal translation we would
like to note the following First despite the denunciation of translation as linguistic
transcoding in arguments for a culturally oriented approach against a linguistically
oriented approach in general translation theory (Snell-Hornby 1990 pp 79-85)
translation remains by nature an act of linguistic transcoding and the proposition of
translation as cultural transfer actually represents one pole of the interpretation of
cultural transfer in translation ie cultural transfer as domestication Secondly
cultural transfer as foreignization is best exemplified in legal translation since the goal
of legal translation is to reproduce a legal text in the target language which has the
same meaning as the source text while also transferring the legal culture of the source
text into the target language text The legal translator is bound to achieve semantic
equivalence in cultural transfer foreignization Thus concepts like linguistic
transcoding cultural transfer semantic equivalence and legal culture deserve serious
treatment as these notions with their interpretations determine how we think about
legal translation and also shape the specific theoretical framework we construct in the
special context of translating the common law into Chinese We earlier clarified the
concepts of linguistic transcoding cultural transfer and semantic equivalence and we
have just investigated the concept of legal culture and its various interpretations in the
previous section As we do not wish to generalize and make broad statements of legal
culture that might crumble under logical analysis we must now clarify the concept of
legal culture insofar as it relates intimately to legal translation
Let us first consider the process of legal translation illustrated by the following
diagram
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 70
(1) SL (Language of Source Legal Text) TL (Language of Target Legal text)
Legal culture
embedded in
source text
Transference of
the legal culture
Linguistic transcoding
Which
sense of legal
culture could
find
representation
in the source
legal text
-Legal ideology
-Legal studies legal education
and legal theory
-Shared attitudes values and
beliefs
-Shared norms and modes of
thinking
Variations of
the concept of
legal culture
in literature
Which
sense of legal
culture could
find
representation
in the target
legal text
ST
(Source
Text)
TT
(Target
Text)
Language of
the source
legal text
Language of
the equivalent
legal Text
(2) Assumed SC (Culture of the Source Text) SC (Culture of the Source Text)
Figure 32 Process of Legal Translation
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 71
The first plane depicts the process of linguistic transcoding where the legal translator
represents the source legal text with the equivalent legal text in the target language In
other words the two end products of legal texts should convey the same legal
meaning The second plane depicts the process of transferring the legal culture We
note that during the translation process what should be maintained intact is the
source legal culture This point is emphasized as it echoes with our previous
observation that cultural transfer as foreignization is the transfer of the source culture
into the target language instead of naturalizing the source culture with the
overwhelming conventions of the target culture Obviously enough what could be
transferred are the variables that have the most direct and intimate bearing on the
language of the source legal text since the process of foreignization is inseparably
bound up with the process of achieving conceptual semantic equivalence Resuming
our task of finding the legal culture embedded in source text we also ask in figure 32
which sense of legal culture could find representation in the legal text We recall that
the concept of legal culture as examined in the previous section is employed to refer
to a variety of objects that can be grouped into two major categories legal culture as
peoplersquos conceptions of law or as both conceptions and practices In legal translation
the legal translator is faced with the substantive legal textsmdashlaws in their written
form
Take the example of tort law in Hong Kong Although Hong Kongrsquos tort law has
its origin in English tort law some of the legal practices of judges and lawyers may
vary from other common law jurisdictions Legal professionals in Hong Kong may
share the same knowledge and belief in the law of tort ie ldquotort in booksrdquo but what is
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 72
the status of ldquotort in actionrdquo35 It is interesting to note that for example courts in
Hong Kong are reluctant to use actuarial evidence in the calculation of damages in the
tort litigation In consequence lawyers are also cautious on whether to provide
actuarial evidence in the court Such practice and behaviour by legal professionals
with regard to tort litigation in Blankenburgrsquos (1994 pp 13-4 amp 1998 pp 39-41)
view was also evidence of the legal culture However it is impossible for the legal
translator to deal with legal culture in that sense as the final encounter of the legal
translator is the legal textmdashthe source language that legal culture is embedded in
Lloyd (1964) thought that the great achievement of the human language especially
the language of law lay in its capacity to create ldquogeneral concepts which provide the
essential tools of human reflectionrdquo (p 285) In explaining the conceptual thinking in
the common law Lloyd remarked
For instance if we take the rules of the criminal law relating to such matters as murder and theft
it is quite true that these are in themselves legal concepts which only have meaning in the
context of legal rules which go to form a legal system We can only understand what is meant by
murder by acquainting ourselves with the legal constituents of this offence and how these
operate in the legal system hellip The law hellip needs to conceptualize these and other related ideas
much more precisely before it can operate a system of criminal law in a rational and systematic
way (pp 289-90)
As Farrar and Dugdale (1990 p 246) put it ldquolaw is more an expression of the
culture of the lawmaking elite rather than that of society at largerdquo the conceptual
35 Here we borrow Blankenburgrsquos idea We use the expression ldquotort in booksrdquo to refer to the body of
substantive and procedural tort law In similar vein we use the expression ldquotort in actionrdquo to
characterize the legal practice and behaviour of the judicial court system and the legal profession
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 73
thinking is that of legal professionals rather than that of the general public In
translating the law in books therefore the legal translator should have an adequate
knowledge of the conceptual thinking of legal professionals and transfer this into the
target language Similarly legal culture as viewed in this study refers to the
conceptual thinking about the law shared by legal professionals To sum up briefly
the above schematic framework of exemplification has the merit of simplicity but is
merely the skeleton on which we must build This endeavour may lead to conceptual
refinements and help to narrow down the concept of legal culture to fit our analysis of
legal translation We proceed in the next section to pin down the substantive contents
of legal culture with which the legal translator must cope in translating the common
law into Chinese
33 The Legal Culture of the Common Law
Identification of the concept of legal culture as the conceptual thinking shared by
legal professionals leads us in the present study to a further question what precisely
are these legal conceptions shared by the legal professionals as far as the common law
is concerned Since the culture of the common law as it stands is representative of its
legal tradition we need to look first at the development of the culture of the common
law from a historical perspective ie the common law tradition before we can begin
to analyze its substantive construction36
36 Theorists of comparative law are inclined to use the common law tradition vs civil tradition to
compare between the worldrsquos two major legal systems Comparative studies of the common law and
civil law tend to generalize about the characteristic differences between the two legal systems as if their
traditional features were crystallized even if they do acknowledge that some constructs are peculiar to a
single jurisdiction
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 74
The common law is the system of law that prevails in England and in countries
colonized by England The very name is derived from the medieval theory that the
law administered by the kings courts represented the common custom of the realm
The distinctive feature of the common law is that it represents the law of the courts as
expressed in judicial decisions The grounds for deciding cases are found in
precedents provided by past decisions as contrasted to the civil law system which is
based on statutes and prescribed texts It emphasizes the centrality of the judge in the
gradual development of law and the idea that law is found in the distillation and
continual restatement of legal doctrine through the decision of the courts The
common law consists of the rules and other doctrine developed gradually by the
judges of the English royal courts as the foundation of their decisions and added to
over time by judges of those various jurisdictions recognizing the authority of this
accumulating doctrine This concept is embodied in the doctrine of stare decisis
(ldquostanding by decisionsrdquo) that emphasizes the importance of legal precedents
established in previously settled cases The establishment of the common law gives
rise to leading concepts like ldquopersonsrdquo ldquorights and dutiesrdquo and ldquoownership property
and possessionrdquo (Lloyd 1964 pp 300-25) The common laws unity has been
attributed to the fact that law is grounded in and logically derived from a handful of
general principles and that whole subject areas such as contract or tort are
distinguished by common principles or elements that fix the boundaries of each
subject area
The common law tradition shapes the construct of the common law serving as its
philosophical and practical foundation Since the present study focuses on the
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 75
conceptual expression of legal culture in general we will concentrate on the
conceptual features of the common law rather than its practical features37
Let us first consider the translation of one fragment of the legislation of Hong
Kong found under the heading Apportionment of liability in case of contributory
negligence
Where any person suffers damage as the result partly of his own fault and partly of the fault of
any other person or persons a claim in respect of that damage shall not be defeated by reason of
the fault of the person suffering the damage but the damages recoverable in respect thereof
shall be reduced to such extent as the court thinks just and equitable having regard to the
claimants share in the responsibility for the damage (Amended LN 337 of 1989) (Cap 23
Sect 21)
The Chinese translation is as follows
條文標題有共分疏忽時法律責任的分攤
如任何人受到損害部分原因是該人本人的過失而部分原因是他人的過失則就該損害
提出的申索不得因受損害者有過失而敗訴但就該申索可追討的損害賠償則必須減少
而減少的程度是法院在顧及申索人對損害應分擔的責任後認為是公正與公平的款額
In the light of figure 32 the legal texts are two linguistic products directly linked
by semantic equivalence Let us explain the thinking process behind such end
37 By practical features we mean the characteristic behaviour and practice of legal professionals and
legal institutions such as how the legal training or education is performed how law is applied by
judges and lawyers etc
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 76
products When faced with the English legal text the legal translator seeks to extract
its meaning Clearly she needs to delve into the culture of the common law in order to
understand all the shades of meaning of the English legal text and produce a Chinese
legal text with the same meaning Here arises the real problem what exactly are those
cultural factors of the Common Law that she needs to pin down To understand the
whole world of culture behind every term we need to do legal research trying as
Vandevelde (1996) nicely put it to think like a lawyer We need to know the
subjective classifications the law addresses in the above example we must
understand that the ordinance belongs to an important branch of common lawmdashtort
law We then need to master the conceptual development of the specified law The
common law concept of tort is best defined as a civil wrong which the victim seeks
remedy for in the form of some kind of damages Examples of a tort would be assault
battery false imprisonment and negligence
Let us turn back to the substantive content of the ordinance mentioned above
The ordinance deals with one defence of negligence contributory negligence In
common law the principle of contributory negligence takes into account the relative
degrees of fault between the plaintiff and defendant and attempts to adjust award of
damages accordingly In the light of our categorization of the concept of legal culture
the above discussed legal concepts and legal principles embedded in the ordinance
reflect the shared beliefs of the legal professionals in the common law and fall under
the category of peoplersquos conceptions of law
The common law then is built on a series of traditionally well-formed legal
concepts which belong to different conceptual classifications such as tort equity
contract etc if legal tradition is regarded as the deeply rooted historically formed
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 77
attitudes towards law38 Practically legal principles in each subject of the law have
been developed into concrete and coherent constructions that make up the common
law we see before us today Therefore the common law is an accumulation of
deep-rooted historically moulded conceptual thinking shared by legal professionals
and reflected in two aspects legal concepts and legal principles Together these make
up the substance of the common lawrsquos legal culture
34 The Legal Culture of Traditional and Modern Chinese Law
As noted in section 222 the act of translating the common law into Chinese was
at the same time creating a variety of the Chinese language namely common law
Chinese as Chinese had not developed as a language to express the common law
before its translation Historically the development of Chinese legal language
represents the evolution of Chinarsquos legal culture Thus an investigation of the legal
culture of traditional and modern Chinese law serves two purposes First it will show
how the legal culture of traditional and modern Chinese law differs from that of the
38 Curran (2001 p59) also noticed this fundamental nature of the common law but instead of
conceptual ldquoclassificationrdquo she referred to conceptual ldquocategorizationrdquo Curran observed
hellip categorization is the process that underlies and determines differences in cultural contexts
Cultures differ from each other on the basis of the underlying categories in which members of
that culture place the empirically observed data categories whose own construction brings
certain observed data into sharp delineation hellip Thus cultural contexts result from sub-structural
patterns of classification in each culture hellip in contradiction to the Common Law system of
monetary remedies as the norm (normal remedies for breach of contract) and specific
performance the exception The Common Lawrsquos stark delineation between tort and contract law
is alien to the civil law with the concept of lsquofaultrsquo indispensable to civil law contract analysis
while unfamiliar in the Common Law contract analysisrdquo (pp 59 82)
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 78
common law Second it will show how Chinese has become an appropriate language
for expressing the common law through the evolution of Chinarsquos legal culture
Traditional Chinese law refers to the law operating in China up to 1911 when the
last imperial dynasty the Qing Dynasty fell Given its long history of feudal
monarchical and imperial regimes China can on this score be regarded as a stagnant
society Despite the stagnation of Chinarsquos political institutions traditional Chinese
law had undergone continuous development with a legal tradition distinct from the
two major legal traditions in the West ie the common law and the civil law The law
operating in different dynasties has its own peculiar features It is generally agreed
that the earliest authentic document on law in China is the Kanggao in Shangshu (尚
書康誥) in the Zhou Dynasty (c 1045-256 BC) Jiang (2003) held that the main idea
in Kanggao was the advancement of virtue (德) and the exercise of discretion in
punishment (明德慎罰) (p 1) However legalism (法家) prevailed and became the
central governing idea of the Qin Dynasty (221-206 BC) In this context Fa (法)
means law or principle which represents the political philosophy that upholds the rule
of law39 The Tang Code (618-906) in the Tang Dynasty was considered one of the
most important codes in Chinese history40 The central philosophy of law in the Tang
39 The main thoughts of legalism included the following the code must be clearly written and made
public all people under the ruler were equal before the law laws should reward those who obey them
and punish accordingly those who dare to break them (Jiang 2003 pp 15-31) Chen (1999) also noted
that
The bamboo strips found in 1975 contain strikingly sophisticated law and institutions from the
Qing Dynasty (221-206 BC) these legal arrangements perhaps represent the most advanced stage
of legal development of the time in the worldrdquo (p 6)
40 Johnson (1979) rightly pointed out the significance of the Tang Code in the history of traditional
Chinese law
Though based on earlier sources Trsquoang legislation has been more important historically than that
of any other dynasty hellip The great criminal code entitled The Trsquoang Code (Gu Tang Lu shu yi 故
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 79
Code was summarized as the advancement of li (一本于禮 ) (Jiang 2003
pp123-34)41 Chrsquou (1961) provided a definition of li
The li which may be defined as the rules of behaviour varying in accordance with onersquos status
defined in the various forms of social relationships were formulated by the Confucianists for this
purpose They are the means by which differences in status and role are maintained (pp 230-31)
Therefore a person in a different title and position was required to follow different li
Johnson (1979) also noted that li was the guiding principle for different classes
especially favoured ones (p 11) The Tang Code was considered the earliest model of
criminal law in China and had a strong influence on the development of criminal law
in other East Asian countries42 Johnson (1979) pointed out
hellip the Trsquoang dynasty is the earliest time from which we can obtain an accurate picture of the
range of Chinese criminal law during the imperial period and the structure of ideas that underlay
its provisions (p 8)
Thus the Tang Code had a far-reaching influence on the traditional Chinese law since
ldquoafter the fall of the Trsquoang dynasty the Code continued to dominate Chinese criminal
legislation until the end of the imperial periodrdquo (p 13)
唐律疏議 hereafter referred to as Code) hellip Though only the Code has survived in entirety we
know from historical sources as well as from still extant fragments that there was a large body of
written law in effect during the Trsquoang period There were four main divisions the Code (lu 律)
the Statutes (ling 令) the Regulations (ge 格) and the Ordinances (shi 式) (p5) 41 The term li (禮) is usually translated as rite ceremonies or propriety It is also translated as morality
(Johnson 1979 p 11) 42 Meijer (1976) noted some of the features of the Tang Code
The legal provisions were models and analogical application was allowed hellip The law itself also
often gave rules that a certain act should be similarly punished as an offence defined under a
different heading (p 4)
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 80
The Daqing Luumlli(大清律例) compiled in the Qing Dynasty was considered as a
rather comprehensive criminal code 43 Meijer (1976) compared the criminal
provisions in the Tang and Qing Codes to show the development of criminal law in
traditional Chinese law Meijer noted
The provisions were of a simple character categorical classification did not occur as the
evaluation of each act depended on the circumstances So there were not simply provisions for
intentional or unintentional homicide but special articles for parricide ldquoplannedrdquo homicide
homicide in a game by mistake ldquowithout authorityrdquo of more persons of one family of a senior
of the family and vice versa of the slave by the master and vv of an official in an affray by
means of poison or misused drug in hunting etc In the Ta-Chrsquoing Hui-tien the Collected
Institutes of the Chrsquoing dynasty they are classified as the six (ways of) homicide Liu-sha viz
homicide planned intentional in an affray by mistake by negligence and without authority (p
4)
We can see that in the course of the development of traditional Chinese law the focus
is largely on the penal systems and that the sovereignrsquos power to make laws is closely
intertwined with punishments
Since we are not intending to conduct a fully comprehensive analysis of the
development of traditional Chinese law our emphasis will be on the characterization 43 Meijer (1976) introduced the provisions contained in the Qing Code
The Code was divided into seven chapters viz the General Provisions (Ming Li) or Rules about
Names Definitions or Denominators of Offences containing rules about the punishments the ten
ldquoabominationsrdquo privileged classes offences by officials special classes of offenders
impardonable offences increase and reduction of punishment voluntary surrender to justice
indemnification joint offences contradictory provisions in the code desertion of soldiers
terminology The other six chapters contained the rules for the specific offences helliprdquo (pp 4-5)
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 81
of the legal culture of traditional Chinese law As noted in section 31 theorists
treated legal culture either as peoplersquos conceptions of law or the combination of
peoplersquos conceptions and practices of law As defined in section 32 legal culture in
this study refers to the conceptual thinking shared by legal professionals Since it is
generally agreed that traditional Chinese law was built on traditional Chinese
philosophy the thoughts shared by traditional Chinese philosophers were embodied in
traditional Chinese codes inherited from one dynasty to another with constant
supplement and revision by each subsequent dynasty Therefore the legal culture of
traditional Chinese law refers to the conceptual thinking of traditional Chinese
philosophers which found an embodiment in the law Let us look at the typical
features of the conceptual thinking embodied in traditional Chinese law and compare
them with the legal culture of the Common Law
It is generally agreed that Confucianism is one of the most important philosophies
manifested in the underlying traditional Chinese law Chrsquou (1961) remarked
The main characteristics of traditional Chinese law are to be found the concept of family and in
the system of classes Since these concepts are basic to Confucian ideology and to Chinese society
they are also basic to Chinese law as well (p9)
Though Confucianism provided the fundamental substance of traditional Chinese law
it was by no means the only philosophy influencing the development of traditional
Chinese law44 Chen (1999) noted
44 Chen (1999) pointed out
hellipthere is always a danger of over-generalization and over-simplification when dealing with a
tradition and a civilization spanning several thousand years In the case of China the traditional
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 82
Traditional Chinese conceptions of law have been largely influenced by writings of traditional
schools of philosophy Of these three have had a particular influence namely Ru Jia
(Confucianism) Fa Jia (Legalism) and Yin-Yang Jia with Confucianism being the dominant
force since the Han Dynasty (206 BC) (p 7)
As traditional Chinese law developed it came to incorporate two controversial
philosophies ie Confucianism and Legalism Chen (1999) observed that the central
view of Confucianism was ldquothe educational function of morality (li) in governing a
staterdquo (p7)45 Thus people were distinguished according to their status this should be
clearly defined so that people of different status could carry out their roles properly
and conform to approved patterns of behaviour Johnson (1969) held that the thought
of li promoted by Confucianism had at least three major impacts on the conceptual
thinking of traditional Chinese law First in traditional Chinese law ldquoa hierarchical
structure of superior-subordinate relationship is treated as natural and indispensable to
regulate human relationshipsrdquo Secondly it helped the sovereign ldquodevelop a legal
concept of rulership which is dovetailed with the concept of virtuous leadersrdquo Thirdly
ldquolaw is treated as rules of propriety rather than a device to protect individual rightsrdquo
(pp16-17)
society and legal culture are often described as lsquoConfucianrsquo However Confucian teachings as
reflected in the Confucian Classics have been the subject of endless interpretation and
reinterpretation by both philosophers and the ruling elites in China Views on and attitudes
towards the governance of society and law within one school of thought are often as diverse as
those between different schools of philosophy In this sense the term lsquoConfucianismrsquo is perhaps
quite misleading (p 4) 45 Liji (Code of Rites 禮記) (Western Zhou Dynasty c 900-771 BC) became the basis for
Confucianism
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 83
Chrsquou (1961) also noted that although legalists ldquodid not deny the reality of social
differentiation they made no attempt to distinguish people in different social statusrdquo
(p 242) Instead they advocated ldquoa uniform law a uniform reward and punishmentrdquo
(Ibid) In analyzing the criminal law of Qinluuml (秦律) which best reflected the thought
of legalism Liu (1998) remarked
[In] hellip analysis of the criminal law of Qin this is of great significance since it was upon this basis
that the Qin Lu divided crimes into two basic categories namely gong shi gao (official
denunciation) and fei gong shi gao (unofficial denunciation)(p 226)46
It is interesting to note that such a division of crimes was made on the basis of
the individual family at that time the basic unit of society Liu explained that ldquowhere
anyone who intentionally infringed upon the rights of person and property of people
who were not members of his own household it would be treated as a case of official
denunciationrdquo and vice versa (p 226) Different punishments were meted out
according to the above two kinds of offences In this regard Confucianists strongly
objected to the emphasis on severe punishment for maintaining social order
Confucianists instead promoted Shangang (三綱) and Wulun (五倫) which can be
translated as ldquothree bondsrdquo and ldquofive human relationshipsrdquo (Chrsquou 1961 pp
236-37)47 In conclusion ldquothe dispute between Confucianism and Legalism was more
46 As a primary Legalist (Fa Jia) code the Qin Lu (Qin Code) framed by Shang Yang (c 300 BC)
institutes uniform rules for social behavior and attempts impartial rewards and punishment Harsh
punishments were based on lianzuo (linked seats) idea of punishing clan members friends and
associates in addition to the perpetrator 47 As for the three bonds and five human relationships Chrsquou (1961) explained
hellip the five human relationships are but concrete types of reciprocal relationships derived from
the more general categories of ldquonoble and humblerdquo ldquosuperior and inferiorrdquo ldquoelder and youngerrdquo
ldquonear and remoterdquohellipThe first three relationships have also been called Sang-Kang the ldquothree
bondsrdquo by Han scholars (pp 236-37)
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 84
than philosophical contention it was a political struggle for supremacy and
domination in state ideology and hence state politicsrdquo (Chen 1999 p 12)
We can see now that the substantive expression of the legal culture of traditional
Chinese law is the conceptual thinking of traditional Chinese philosophies manifested
in Confucianism and Legalism As a result the concepts of li (ldquomoralityrdquo represented
by Confucianism) and xing (ldquopunishmentrdquo represented by Legalism) were intertwined
in codified traditional Chinese laws Compared with the legal culture of the common
law the legal culture of traditional Chinese law exhibits three distinctive features
First there are no such common law concepts as ldquorightsrdquo and ldquorule of lawrdquo in
traditional Chinese law the legal concepts and principles of which are mainly
philosophical in nature In comparing traditional Chinese law with the English law
Gu (2006) pointed out
While the conceptual division of abstract and concrete law transformed English law from an
administrative into a ldquolegalrdquo practice the lack of an abstract concept of rights and the transmutable
boundaries of original legal meanings determined the administrative features of Islamic and
Chinese law (p 4)
Secondly traditional Chinese law did not develop a system of precedents such as are
found in the common law Alford (1995) gives an explanation for this
Contrary to what one might initially expect the imperial Chinese legal system did not adhere to a
formal system of binding precedent although in fact magistrates and other officials involved with
the law did draw on compilations of prior cases as they reached and sought to justify their
decisions But on reflection the absence of binding precedent may actually have connoted an even
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 85
greater embracing of the pastmdashas the Confucian morality and wisdom of the ages that officials
were assumed to have cultivated in preparing for and taking the imperial examinations were surely
seen as a truer and more historically valid guide for making decisions than any set of rules
formulated or cases resolved by onersquos predecessors in office (p 22)
The prevailing philosophy of Confucianism thus became a hindrance for the
development of legal professionals and the system of binding precedents Despite the
fact that there was a large body of codified laws in traditional Chinese society it was
by no means a legally oriented society
Thirdly given its penal emphasis traditional Chinese law did not pay attention to
matters of a civil nature eg contracts property rights inheritance marriage etc
The legal system was made to serve state interests not to protect individual rights or
to resolve disputes among individuals ldquoThe Chinese neither saw public positive law
as the defining focus of social nor divided it into distinct categories of civil and
criminalrdquo (Alfrod 1995 p 10) As a result the civil law concepts and principles of
the common law are mostly absent in the Chinese language As for criminal law the
difference between traditional Chinese law and the common law is enormous
Though modern Chinese law refers to the law operating in China after the fall of
the last imperial dynasty there were attempts at legal reform in the late Qing dynasty
which had considerable impact on the social and economic development of early
modern China Chen (1999) called the late Qing reform ldquothe westernization of
Chinese lawrdquo since the pressure for reforming traditional values and systems led to the
introduction of ldquowestern economic cultural and political ideasrdquo by the late 19th
century (pp 17-18) The reform was conducted in two stages Chen (1999) notes
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 86
The first stage was to revise the old law with its focus on abolishing the cruel punishments which
then existed hellip the second-stage reform the making of new codes in line with Western laws was
carried out almost simultaneously hellip(p20)
Besides the focus on the reform of criminal law some elements of civil law were
beginning to take shape in China In 1901 the first Chinese company law became
effective introducing ldquothe idea of limited liabilityrdquo and it ldquotook a highly supportive
approach toward entrepreneurial endeavourrdquo (Alfrod 1995 p 48)
The revolution led by Sun Yatsen overthrew the regime of the Qing dynasty and
a Republican government was established in 1912 Legal reform which Chen (1999)
called ldquothe modernzation of Chinese lawrdquo was continued (p 23) The reform was
guided by ldquothree Principles of the PeoplemdashNationalism (minzhu) Democracy
(minquan) and Peoplersquos Livelihood (mingsheng)rdquo (p24) Compared with the Qing
reform the legislation of the Republican government took the Chinese traditions and
customs into consideration in ldquoadopting and adapting Western legal doctrines and
institutionsrdquo (p 28)48
The PRCrsquos legal system was built on the model of Soviet socialist law which
was much closer in form to the legal systems of continental Europe than to the
Common Law with considerable modifications in accordance with Marxist ideology
During the 1950s a large body of laws was comprehensively codified under Maorsquos
48 Chen (1999) holds that law reform of Republican government was more progressive compared with
the Qing reform He remarks
Besides its conservative approach to family and succession matters the Qing reform largely failed
to preserve certain ancient and deep-rooted customs such as the civil law institutions of Yung-tien
(a long-term lease) and Dien (a kind of usufructuary mortgage) (pp 27-28)
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 87
leadership Chen (1999) noted that PRC law experienced another stage of
development under Dengrsquos leadership especially since 1992 when ldquothe Party adopted
the notions of a ldquosocialist market economyrdquo and ldquoassimilation or harmonization with
international practicerdquo (p 49) With the codification of a series of laws such as the
Company Law (1993) the Foreign Trade Law (1994) the Insurance Law (1995) the
PRC legal system underwent many changes in keeping with international practice
Chen remarks
Taxation law joint venture laws intellectual property protection law and most recently the
Criminal Procedure Law and the Criminal Law have all undergone major revisions Further
China has now ratified a large number of international conventions dealing with international
economic relations especially intellectual property protection Thus Western scholars now find
familiar language in Chinese law since Chinese law in its forms structure and methodologies
has become unmistakably Western (p 55)
Paler (2005) also agrees that decades of legal reform of the PRC law represent ldquoa
significant attempt to produce a more orderly and open legislative system in Chinardquo a
modern legal system of legal rules that support its emerging market economy (p 302)
There are three major features of the legal culture of modern Chinese law compared
with that of the Common Law First the notion of rule of law which is a foundational
concept in the Common Law is something of an imported idea in modern Chinese
law and the same term carries a rather different meaning in the two different legal
cultures The legal principles and concepts are derived from the legislation which is
the primary source of law Secondly modern Chinese law modelled on the civil law
system shares the characteristics of the civil law system rather than those of the
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 88
common law49 In particular the basic principles and concepts of criminal law in
modern Chinese law are substantially different from those in the common law
Thirdly with the progress of legal reform certain branches of law including company
law insurance law and trade law show similarities with elements of the Common
Law We shall see that the feature of the PRC legal system is fundamentally socialist
but with a newly developed modern economic legal framework Despite the fact that
many of the basic principles and concepts in modern Chinese law are substantially
different from those of the common law borrowing from other legal systems and
transfer of foreign laws into China are both features of traditional and modern Chinese
law In the next chapter therefore we will investigate the transfer of the legal culture
of foreign laws into China since this can shed light on the translation of the common
law into Chinese
49 David amp Cohan (1985) gave two major reasons for this First it was attributed to the Europeanization
of China between the 19th and 20th centuries The other is the fact that the PRC had inherited the
Chinese legal tradition where the statutes or codes were highly valued throughout the imperial period
ie from the Qin Dynasty to the Qing Dynasty
Chapter 4
The Transfer of Legal Culture
41 Legal Transplant and the Transfer of Legal Culture
411 Introduction
We have noted that legal culture ie the conceptual thinking shared by legal
professionals is an essential yet inseparable component of any legal system The
transfer of legal culture can take place when the law of one country is moved to
another or when two legal systems come into contact Transposition of law from one
society to another is generally known as legal transplant While this is an extensively
researched area in comparative law in recent years legal transplant is as old as the law
itself Earlier legal transplants such as the transposition of Roman laws to Europe
offer a well-known example (Watson 1974) Since transplantation involves the
transfer of the conceptual thinking of the imported law legal transplant often brings
about a transfer of legal culture We will examine the relationship between legal
transplant and legal translation the causes of legal transplant and its role in the
transfer of legal culture In so doing we hope to arrive at a better understanding of the
theoretical background surrounding the transfer of legal culture in legal translation
Watson (1974) the founding scholar in modern legal transplant theory
described it as ldquothe moving of a rule or system of law from one country to another or
from one people to anotherrdquo (p 21) Watson identified legal transplant with legal
THE TRANSFER OF LEGAL CULTURE 90
borrowing and argued that the phenomena of legal transplant had ldquobeen common
since the earlier recorded historyrdquo (p21) According to Watson the object of legal
transplant is rules By ldquorulesrdquo he meant not just statutory rules but also institutions
legal concepts and structures (2001a)50 Watson held that legal borrowing can take
place between societies with very different political social economic and religious
conditions and that usually the borrowing is from the more developed and complex
system (2001b p 215)51 In analyzing Watsonrsquos concept of legal transplant Cottrrell
(2001) held that comparative legal history is the primary tool of legal research and
borrowing is usually the major element in legal change (p 71) 52
Legrand (2001) disagreed with Watsonrsquos definition of legal transplant however
contending that Watson reduced it to the movement of ldquorulesmdashwhich are usually not
defined but which are conventionally taken to mean legislated texts and though less
peremptorily judicial decisionsrdquo (pp 55-56) He argued that legal transplant was in
essence impossible since ldquowhat can be displaced from one jurisdiction to another is
literally a meaningless form of wordsrdquo (p 63) Cottrrell (2001) agreed with Legrandrsquos
criticism remarking
50 Watson Alan ldquoLegal transplant and European Private Lawrdquo Ius Commune Lectures on European
Private Law 2 (electronic version) Dutch Institute of Comparative Law
(httpwwwejclorg44art44-2html accessed on March 15 2008) 51 Watson also pointed out that law in writing was an obvious source for borrowing the reception of
Roman law (and of canon law) in Western Europe and the success of the Sachsenspiegel in medieval
Germany of the French code civil in Europe and Latin America are all powerful examples (2001b
p215) 52 Cottrrell (2001) summarized Watsonrsquos views thus firstly transplantation of legal rules between
legal systems was a principal explanation for the growth of law secondly social need was not the
decisive force in legal development thirdly legal changes were largely controlled by the internal legal
professional elites fourthly legal rules survived over long periods despite significant variation in the
social context on which they operate fifthly the development of some important bodies of law was
largely the result of legal history (pp71-72)
THE TRANSFER OF LEGAL CULTURE 91
hellip an emphasis on legal culture may highlight the difficulty or even impossibility of transplants
since a legal culture is not easily replaced by a different one and legal rules are understood in
relation to legal cultures (2001 p78)
As noted in section 312 Cotterrell (1997) rejected the concept of legal culture
and proposed to replace it with the term ldquolegal ideologyrdquo He was thus naturally
opposed to the concept of legal transplant since this hinged largely on a proper
definition of legal culture Watson (2001) however refuted Legrandrsquos view
hellip I believe I have shown that massive successful borrowing is commonplace in law hellip Legal
borrowing I would equate with the notion of legal transplant I find it difficult to imagine that
anyone would deny that legal borrowing is of enormous importance in legal development
Likewise I find it hard to imagine that anyone would believe that the borrowed rule would
operate in exactly the way it did in its other home hellip I have continually over more than a quarter
of a century insisted that what are borrowed and can be borrowed are legal rules principles
institutions and even structure (2001 pp 23-24)
In characterizing the relationship between legal tradition and legal culture for
the development of his legal transplant theory Watson (1991) remarked
The answers for understanding the nature of law and its place in society can only be found in the
legal tradition and legal culture (p 4)
We shall see that Cotterrellrsquos dismissal of the concepts of legal culture and legal
transplant is not convincing Just as legal rules should be understood as an element of
legal culture the concept of legal culture should be understood as an indispensable
THE TRANSFER OF LEGAL CULTURE 92
component in legal transplant Though Watson may well not have defined legal
culture he did consider it as the basis for understanding the nature of law and legal
transplant Since we define legal culture in this study as the conceptual thinking of
legal professionals of which legal rules are an integral part it is fair to say that legal
rules are also an inseparable part of legal culture and thus of legal transplant Though
legal transplants may not always be viable we can not simply dismiss them as
impossible History and a fair part of comparative law studies show that legal
transplants have indeed taken place
412 Legal Transplant Legal Imposition and Legal Translation
Legal transplant takes place for many reasons such as authority prestige
political and economic incentives and may take different forms in different countries
In an attempt to explain the phenomenon Sacco (1991) remarked
There are two fundamental causes of imitation (ie legal transplantation) imposition and
prestige Every culture that has faith in itself tends to spread its own institutions Anyone with
the power to do so tends to impose his own upon others Receptions due to pure force however
are reversible and end when the force is removed (p 398)
Likewise Bercowitz (2001) observed that ldquosome legal transplants were imposed
during occupation others were part of a voluntary reform process initiated by the law
receiving countryrdquo (p 8) A fairly wholesale transplantation of legal systems is
possible during an occupation even without any translation of the imported law into
the indigenous language However legal translation is usually the major conduit of
THE TRANSFER OF LEGAL CULTURE 93
legal transplant in the case of legal reform in the receiving country Therefore we
classify legal transplants into two kinds in this study legal imposition at the
socio-political level and legal translation at the socio-linguistic level
Comparative legal scholars have carried out extensive studies on the imposition
of law since the importation of foreign legal systems is widespread and poses
important theoretical problems In search of a definition of legal imposition
Lloyd-Bostock (1979) distinguished between ldquoexternally imposed law and law that
accords with internalized normsrdquo (p 10) She remarked
hellip externally imposed law would include cases ranging from particular instances of law within
an established legal system to the importation of an entire legal system form another culture It is
debatable whether a definition of imposed law should introduce further distinctions between
types of cases but there can be no doubt that explanation of compliance will need to take
account of the wider context in which law has been imposed (p 10)
Lloyd-Bostock opined that looking into the compliance with imposed law would be
an effective way of understanding the social consequences of legal imposition In
seeking to define the term legal imposition Okoth-Ogendo (1979) observed that ldquothe
use of that phrase might imply concern merely with the normative and institutional
legacies of colonialismrdquo (p 147) However his own view was that legal imposition
encompassed ldquoany situation where fundamental change is contemplated in society
through the medium of laws or legal institutions whose content is clearly contrary to
the perceived and accepted normative order of those whose behaviour it seeks to
regulate or changerdquo (p 147) From this perspective legal imposition resulting from
colonialism always gives rise to socio-political change in the society that receives the
THE TRANSFER OF LEGAL CULTURE 94
law Okoth-Ogendo went on to make an in-depth study of the imposition of English
property law in Kenya pointing out that ldquolegal imposition is a rampant practice in
Africardquo and that the ldquoimposition of law can be seen as an expression of dependency
relations between the Third-World (the periphery) and industrialized nations (the
metropolitan centres)rdquo (p 148)
In similar vein Kidder (1979) pointed out that ldquothe prototype of imposed law as
it seems most generally to be understood is the colonial situation where legal systems
are imposed from dominant cultures and forced on indigenous populationsrdquo (p 289)
A case in point is the imposition of common law in British colonies in South East
Asia Accompanied by nineteenth-century colonialism the imposed law radically
reshaped and pluralized the law of much of Africa Asia and the Pacific The research
of Harding (2001) provides a thorough description of legal transplant in South East
Asia where the imposed law survived Following the lead of Watson and other
likeminded scholars he remarked
hellip law in South East Asia has evolved out of legal transplantation which has on the whole
been successful if judged by the criterion of whether the law has stuck or come unstuck In
South East Asia the idea that the history of a system of law is largely a history of borrowing of
legal materials from other legal systems as maintained by Watson Pound and others is proved
remarkably accurate (p213)
The wholesale transplant of the common law system in Southeast Asia also includes
the case of Hong Kong since English law was imposed on Hong Kong after 1843 In
the case of Hong Kong the legal transplant met with a rather benign reception and as
THE TRANSFER OF LEGAL CULTURE 95
Epstein (1989) noted there was little interaction between Hong Kongrsquos legal system
and the laws of the Chinese Mainland after colonization He remarked
For a century and a half British colonial rule has insulated Hong Kongrsquos legal system from law
and legal change on the Chinese mainland Although early provision was made for the
application of Qing dynasty law in Hong Kong in practice the Qing codes had little if any
impact in Hong Kong after 1841 and even the role of customary law has been restricted to
family matters and land tenure in the New Territories (quoted in Wacks 1989 p 38)
Wesley-Smith (1994) held a different view with regard to the influence of
Chinese customary law however In the process of legal transplant colonial officials
typically endeavoured to eliminate customs they considered repugnant such as
polygamy payback killings suttee and many other kinds of practices they considered
uncivilized Yet customary laws continued to have some effect both in Hong Kong
and many other countries53 Wesley-Smith noted that ldquolsquoChinese law and customrsquo
despite its decline as a source of lawmdashmuch of it was abolished prospectively in
1971mdashstill plays an important role in modern Hong Kongrdquo (p 205) In the process of
legal imposition conflicts often emerge between the indigenous and the imposed law
although as already noted the imposition of the common law on Hong Kong was a
fairly well received legal transplant with the imposed law meeting little resistance
when it began to regulate the behaviour of the indigenous inhabitants However the
legal culture ie conceptual thinking about the common law could reside only in the
minds of legal professionals before the common law was translated into Chinese The 53 Harding (2001) gave an example from Singapore where the famous case known as the Six Widows
Case tried by the colonial court raised a crucial question of what kind of law was to be applied in cases
involving local custom the common law or the customary law The court finally decided the case
according to the Chinese polygamous marriage custom (p 210)
THE TRANSFER OF LEGAL CULTURE 96
transfer of the legal culture related to the imposed law can only fully effected until the
conceptual thinking of the imposed law is translated into the indigenous language and
made accessible to local laypeople
Legal translation as a form of legal transplant always involves the transfer of
the legal culture of the translated law at the socio-linguistic level It takes place when
a country or region borrows the legal system of another usually accompanied with
massive translation of the imported law Through legal translation the concepts of the
foreign law are introduced to the indigenous people Compared with legal imposition
legal translation as a form of legal transplant is a more fruitful way of transplanting
legal systems and transferring foreign legal culture since it imports the underlying
legal concepts into the indigenous language As Zhang (2003) pointed out legal
transplant by translation is the most common phenomenon in the course of legal
development in many countries Its history can be traced to the Old Roman Period (p
9) After the medieval period many western European countries such as France
Germany transplanted the Roman codes by way of translation In modern times many
Asian African and American countries have transplanted the laws of western
countries (p 9) Japanrsquos legal development also illustrates how the improvement and
modernization of one statersquos law may occur by way of translation During the Meiji
period there was massive translation of continental European laws into Japanese and
their reception took place in a completely non-European cultural juridical and
religious context
As noted in section 21 translation as cultural transfer usually requires that a
choice is first made between two basic translation strategies namely domestication
and foreignization through which the cultural concepts of SL may either remain
THE TRANSFER OF LEGAL CULTURE 97
un-transferred or be transferred Cultural transfer as domestication may result in
cultural appropriation to which Merry (1998) gave an explanation
The concept defines culture as contested historically changing and subject to redefinition in
multiple and overlapping social fields It emphasizes continual transformations in the meaning
and structure of law rather than any notion that law is embedded in a homogeneous and shared
culture It incorporates the possibility of resistance while recognizing that resistant practices
involve actions that appear to be accommodation and adaptation Changing the way culture is
conceived makes it possible to reimagine the relationship between law and culture Processes of
legal transplantation imposition and borrowing widespread during nineteenth-century
colonialism and contemporary globalization are central sites for examining this relationship
(1998 p 603)
Cultural appropriation can be seen as the resistance to the imported culture which is
changed in form and substance becoming mixed with the indigenous culture Cultural
transfer as domestication contrasts quite sharply with cultural transfer as
foreignization where the target culture accommodates the alien concepts and adapts
to the foreign culture
Legal translation as foreignization necessitates the assimilation of the legal
concepts of foreign laws as is the case with legal transplants in China China has a
long history of legal transplants dating back to the Late Qing dynasty when China
transplanted the German system of civil law Next Japans legal experience exerted
great linguistic and practical influence on Chinas reception of civil law before 1949
Moreover China transplanted the Soviet Unionrsquos legal ideas after 1949 The history
THE TRANSFER OF LEGAL CULTURE 98
of legal transplants in China can usefully elucidate the role that legal translation has
played
42 Transfer of the Legal Culture of Foreign Laws in China
421 Transplant of Foreign Laws since the Late Qing Dynasty in China
The introduction and translation of foreign legal texts into Chinese started since
the Late Qing period The systematic introduction of Western laws together with other
Western sciences commenced with the establishment of Tongwenguan in 186254 In
the Late Qing Dynasty the transformation of social relations demanded a new social
order Zhang (2003) notes how in the early 20th century when the Qing Code was still
in effect the Qing government decided to reform the law and transplant Western legal
principles into China (p 8) Legal translation played a significant role from 1896 to
1936 during which period legal concepts and legal principles of Western laws were
transplanted into traditional Chinese law thus laying the foundations for modern
Chinese Law
Meijer (1976) carried out a comprehensive research into the revision of criminal
codes in the Late Qing period The Qing government established the bureau for the
compilation of laws in 1901 and it set to work ldquotranslating foreign codes of Criminal 54 It is generally assumed that international law and the relevant vocabulary was introduced in China
mainly after the Japanese influence early this century Several other texts on international law were
however translated into Chinese between 1864 and the turn of the century Some of these were
translated by Martin and published by Tongwenguan such as Theodore Dwight Woolseys Introduction
to the Study of International Law (1877) and William Edward Halls A Treatise on International Law
(1903) (Svarverud 1998)
THE TRANSFER OF LEGAL CULTURE 99
Law and Criminal Procedurerdquo in 1904 (pp 9-11)55 During the law reform period ie
from 1901 to 1907 legal concepts and models were imported from Japan Germany
and other continental countries56 According to Meijer (1976) Shen Jiaben one of
the most important figures in the legal reform of the Late Qing Dynasty was
appointed in 1904 as one of the Commissioners (Xiuding Faluuml Dacheg 修訂法律大
臣) responsible for the Office of Codification (Faluuml Bianzhuan Guan 法律編纂館) (p
11) As the leader of the team of translators translating the foreign laws into Chinese
he held that the success of legal reform depended on the translation of the foreign
laws57 The criminal laws and criminal procedures of the civil law system were
studied and translated58 There were two main reasons for modelling the new law on
the continental legal system One was that the continental system inherited
ldquosomething of the old Roman Familiardquo which was similar to the focus of familism in
traditional Chinese society while ldquoAnglo-American Law emphasizes the individual as
against the familyrdquo (p 22) The other reason was that ldquothe concept of state authority
55 Meijer (1976) made a survey of important revisions on the old law which included the ldquosubstitution
of penal servitude for banishment the abolishment for torture and corporal punishment and abrogation
of some severe punishmentrdquo (pp19-37) 56 Chen (1999) noted that ldquoa constitutional reform which aimed at transforming the autocratic empire
into a constitutional monarchy was also begunrdquo (p19) Japanese model was then adopted and ldquoa series
of edicts concerning the establishment of constitutional government and a series of constitutional
projects and documents were issued by the Thronerdquo (p19) 57 According to Zhang (2003) a total of 180 books of foreign laws were translation into Chinese
among which there were 123 law books from Japan 29 from Britain 18 from America 18 from
German 11 from France 2 from Netherland 4 from Sweden 1 from Finland 2 from Russia and 1
from Mexico 58 In relation to the revised law Meijer (1976) noted
They did not only carry out some of the suggestionshellipas eg the change of beating with the
bamboo into fines and the abolition of torture they went further and obtained the abolition of the
cruel ways of capital punishment branding and collective responsibility in criminal matters the
abrogation of three hundred and forty four articles of the standard rules and the change of formal
capital punishment into penal servitude for some cases of homicide (p12)
THE TRANSFER OF LEGAL CULTURE 100
over its citizens as inherited from Roman Law also fitted well into the ultimate goals
of the legal reform to secure the emperorrsquos position permanently to alleviate foreign
aggression and to quell internal disturbancerdquo (p 22)
Apart from criminal law legal concepts of civil law in Western countries were
also transplanted into China from the Late Qing period on Meijer pointed out that
ldquoapart from the field of Criminal Law the Committee for the Compilation of the Laws
also produced a draft for the Bankruptcy Law and the well-known draft for the new
Law of Judicial Procedure both on the 24th of April 1906rdquo (1950 p 31) In his study
on Chinarsquos reception of concepts and elements of Western private law Epstein (1998)
also holds that ldquoforeign influences on Chinese Civil Law are broad and deeprdquo and he
seeks to ldquoillustrate a number of important features of Chinas reception of Western
legal conceptsrdquo (p 154) The history of Chinarsquos reception of Western civil law began
when the ldquoQing imperial government first attempted to transplant Western civil codes
into China at the turn of this centuryrdquo and ldquothe first successful codification of Chinese
Civil Law was promulgated by the Nationalist government between 1929 and 1930rdquo
(Epstein p 153)59 After 1949 China adopted the legal concept of the Soviet Union
that all law is public law deciding ldquoquite literally to banish the words lsquoprivate lawrsquo
from its legal vocabularyrdquo ldquoa textbook on economic law published in Moscow in
1977 was translated and republished in China in December 1980rdquo which ldquomarked the
59 In explaining Chinarsquos borrowing of Civil Law concepts from the west Epstein remarked
The distinction between criminal and Civil Law was first borrowed from the West during the Qing
codifications It was drawn first in procedural law n45 and finally in substantive law by
designating that the civil provisions in the revised Qing Code (Xianxing Xingluuml) of 1910 should
not be subject to punishments Thereafter China adopted the Japanese pattern of Six Laws which
clearly distinguished between private and public civil and Criminal Laws Despite the influence of
Soviet jurisprudence after 1949 the distinction has survived in substance if not in form in the
PRC (1998 p162)
THE TRANSFER OF LEGAL CULTURE 101
second reception of Soviet legal doctrine into Chinardquo (p 164) During the whole
process of legal transplant since the Late Qing Dynasty China adopted legal concepts
mainly from Germany and the Soviet Union and these set the standard for its legal
codifications This also explains why Chinese law is characterized by civil law
traditions After Chinarsquos economic reform in the late 1970s legal transplant by way of
translation was even more visible Suli (2004) remarks
Since the implementation of lsquoOpen and Reformrsquo in China in 1978 the translation of legal works
has been an important part of developments of the Chinese Law Most active legal scholars of
today have in certain stages of their academic careers translated some works or benefited from
the translation of legal works either directly or indirectly hellip Almost no scholar is totally free
from impacts of foreign laws hellip In this sense the legal science of China of today is basically the
result of legal transplants and the transplants have proved to be successful on the whole (p 97)
The Company Law of the PRC (1993) is a major example of continuing
transplant from Western laws among which Americarsquos corporate law was then a
prime source The profound effect of legal transplant on the development of the
Chinese law can be identified from at least two aspects One is the transplanted legal
concepts and legal principles of the civil law system which underlies Chinese law
The other is the analytical tools which have long been used in Chinas adopted civil
law doctrines to guide legislative drafting and which have in part become embodied
and embedded in the law In explaining Chinarsquos legal transplant and the interplay with
its legal culture60 Potter (2004) remarked that ldquoChinarsquos legal reform effort also
60 Concerning Friedmanrsquos definition of legal culture Potter (2004) remarked
THE TRANSFER OF LEGAL CULTURE 102
depends to a significant extent on dynamics of legal culturerdquo hellip thus analysis of
Chinarsquos legal culture would permit ldquohellip appreciation of the tensions between the
globalized systems of liberal legal norms from which many of Chinarsquos legal reform
efforts are drawn and deeply embedded systems of local norms and values (pp
474-75)61 In other words in the process of legal transplant Chinarsquos local legal norms
adapted selectively to foreign legal norms which were finding their way into Chinarsquos
legal culture Given Chinarsquos long history of legal transplant by way of translation it is
thus meaningful to enquire which aspects of the legal cultures of foreign laws have
been transferred in what form they have been transferred and in what way legal
translation could account for the successful transfer of the legal culture of foreign
laws
Legal culture maybe defined by reference to discourses of sociology and political science in terms
of customs values and opinions and ways of thought and behavior (Friedman 1975 15 Ehrmann
1976 Glendon 1985 Varga 1992) (p474)
However his perspective was ldquoto focus legal culture as a basis for understanding the relationship
between imported and local norms (Potter 2003b)rdquo (p474) 61 Potter (2004) argued that foreign laws especially international laws were transplanted into China It
was easy to assume that those laws with its familiar appearance had no difference with their originals
However it was not always the case He noted
Lubman and Peerenboom both remind students of the Chinese Law not to confuse what appear
to be familiar institutional forms in the operation of the Chinese legal regime with the
acceptance of related international norms As we struggle to understand the conflicted interplay
between imported legal forms and local legal norms ideas about selective adaptation and
attendant features of perception complementarity and legitimacy offer potentially useful
perspective form whence to proceed (p486)
THE TRANSFER OF LEGAL CULTURE 103
422 Transfer of the Legal Culture of Foreign Laws in China
As noted in section 22 of chapter 2 legal translation that seeks to transplant
cultural concepts specific to the original legal system is a good example of cultural
transfer as foreignization A case in point is the legal translation in the Late Qing
Dynasty in China which we have just sketched out We will now look at how the
foreign laws were translated during this period and the approach to translation that
was taken Shen Jia-ben had already observed that when Japan translated Western
laws semantic translation was initially adopted However the great number of
mistranslations that occurred had led to the eventual adoption of literal translation In
the case of China the task of translation was far more difficult since there were no
legal terms to express the legal concepts of Western laws Shen thus asked the
translators to strive for fidelity and fluency in translating the criminal laws of France
Germany Russia and Japan (Zhang p 180)62 For example when learning from the
criminal laws of other countries Shen strove to propagate the idea of a ldquolightrdquo
(xingqing) response to crimes by condemning the traditional punishment inflicted on
prisoners such as dismemberment or decapitation followed by the displaying of the
victimrsquos head in public63 We can see that when striving for fidelity to the foreign
62 Zhang (2003) held that legal translation was a very important channel for importing the legal
concepts of Western law into China She quoted Shen Jiaben as follows
參酌各國法律首重翻譯而譯書以法律為最難語意之緩急輕重記述之詳略偏全決
策為精訛立見從前日本譯述西洋各國法律多尚意譯後因訛誤改歸直譯中國名詞
未定移譯更不易言臣深慮失實務令譯員力求信達hellip (p 180) 63 In explaining how the translators deal with the terminological problem in the translation Meijer
(1950) also noted
hellipThe first deals with the term fa-hsing 罰刑 fine which the committee wanted to be changed
into fa-chin 罰金 on historical and logical grounds The first term means punishment of fine
but he word fa may also denote punishment so that the term might become meaningless the
THE TRANSFER OF LEGAL CULTURE 104
laws Shen wished to achieve conceptual semantic equivalence by adopting literal
translation instead of semantic translation which would result in creating new legal
terms in Chinese In such ways were linguistic adjustments made when transferring
the legal concepts of foreign laws into Chinese
As noted in section 222 of chapter 2 whenever a culture is transferred from one
language to another there is also a need for conceptual adjustment which invariably
results in the foreignization of the importing language Regarding this Meijer gave a
thoughtful account in his researching into the memorials written by Shen He
remarked
With the memorials Shen Chia-ben introduced a new criminal code in China A code based on
foreign concepts most which were alien to Chinese thought or which had in the course of history
been discarded as unsuitable for Chinese society The memorials are not a theoretical explanation
of the philosophical back-ground of a new law they are presented as remarks on the revision of
some of the principles of an existing law by borrowing from foreign law hellip Formerly the law was
according to the most accepted doctrine an auxiliary to education It was essentially a part of
ethics it derived its force from the moral code and served as a model for the judge being a
directive for the maintenance of the natural ordermdashtao The new law however reposed on totally
different concepts The law now became a set of rules given by the state in its capacity of keeper
of the public peace and order punishing any acts which were contraries to the minimum
standards of conduct required for an orderly society An offence now became officially an
offence only because the objective Criminal Law forbad it Violators of moral laws were no
second term is more specific meaning punishment-money taking fa in the meaning of
punishmentrdquo (p 52)
THE TRANSFER OF LEGAL CULTURE 105
longer interfered with as long as they stayed within the limits of the Criminal Lawrdquo (1950 pp
70-71)
Meijer here suggests that cultural transfer takes place on the metalinguistic level
rather than via a theoretical explanation of the philosophy behind the new laws
However it can be conceded that such a background still provides a theoretical
framework and working principles for transferring the legal culture of the foreign law
In other words we can understand foreign legal concepts by studying the extent to
which the memorials of Shen (and his colleagues) are explicit about what the newly
coined Chinese legal terms stand for and how they relate to the original legal system
For example Shen distinguished between criminal and civil affairs It ldquowas
established in the memorial asking for permission to print the code of 1910 The
distinction was based on the principle of Shen Chia-benrsquos Draft of the Code governing
Civil and Criminal Procedure of 1906 art 2 and 3 (cf p 43) but somewhat more
elaborated and preacutecisedrdquo (Mejier 1950 p 53) Therefore the memorials serve as an
important metalanguage for transferring the legal culture of the foreign laws
If we recall the discussion of Evans-Pritchardrsquos translation of Azande in section
223 of chapter 2 we shall be reminded that cultural transfer must be effected at the
metalinguistic level As can be seen from Chinarsquos long history of legal transplant by
way of translation the legal concepts and legal principles of foreign laws have been
transferred into Chinese This also shows that successful transfer of the legal culture
of foreign laws requires adjustments to be made in the target translation language and
must involve conceptual transfer at the metalinguistic level
Chapter 5
The Language of the Common Law
51 The Translatability of the Common Law
As we noted in section 412 of chapter 4 legal transplant in Hong Kong has
taken the forms of political imposition and legal translation the former as a result of
colonization and the latter after the recovery of sovereignty by China64 Wesley-Smith
(1993) gave a detailed account of how English law was imported to Hong Kong after
it became a British colony He noted
One of the first things to be done therefore was to introduce English law into Hong Kong At
one stroke was thus imported a comprehensive collection of rules principles standards and
concepts appropriate for the trading post Britain had established From 1846 to 1966 the
formula by which English law was received into Hong Kong applied all the laws of England
which existed on 5 April 1843 the day Hong Kong obtained a local legislature (p 33)
Despite the controversy over the applicability of the common law it was kept up to
date by constant legislative reception Wesley-Smith rightly pointed out which aspects
64 The Department of Justice explained why legal bilingualism had to be launched in Hong Kong as
follows
In keeping with the Basic Laws provisions on bilingualism all legislation in Hong Kong is enacted in
both Chinese and English and both versions are accorded equal status Thanks to the bilingual
legislation programme begun in 1989 authentic Chinese texts have been completed of all pre-existing
legislation which had been enacted in the English language only and Hong Kongs statute book is now
entirely bilingual ( httpwwwdojgovhkenglegalindexhtm accessed on September 2 2007)
THE LANGUAGE OF THE COMMON LAW 107
of English law were imported into Hong Kong ie the rules principles and concepts
which constitute the substantive contents of the legal culture of the common law as
described in chapter 3 As a matter of fact these rules principles and concepts of
English law had been imposed on the operating legal system in Hong Kong long
before the law was translated into Chinese65 The decision to translate the common
law into Chinese signified a yet deeper transplant of the common law into Chinese
culture this time by way of legal translation instead of political imposition The task
of translating the laws of Hong Kong into Chinese was completed in a timely manner
by May 1997 However the accomplishment of this mammoth task has not ended the
controversy over the translatability of the common law into Chinese In researching
the translation of the common law into French Nguessan (1995) realized that the
terms and concepts of the common law were specific to that system itself and asked
ldquoIf such is the case how is it possible to transfer the law from one language to another
if those two languages express the law of two different countriesrdquo (p iii) [] But as
we have pointed out in chapter 2 this is not the case with the translation of the
common law into Chinese This translation was carried out within the same common
law jurisdiction of Hong Kong and therefore the question of one language expressing
the law of two different jurisdictions simply did not arise The question with which
Hong Kong was and is faced is purely a question of translation namely ldquoIs it possible
to translate the law of one language into another If so howrdquo
65 As for the application of the common law to Hong Kong Wesley-Smith noted
In effect the cut-off date of 5 April 1843 applied in respect of statutes all Acts contained in the
English statute book on that day provided they were general and not purely local in nature and
were not suited to the circumstances of Hong Kong or of its inhabitants were automatically in
force in Hong Kong (1993 p 33)
THE LANGUAGE OF THE COMMON LAW 108
As far as the first question is concerned critics of the bilingual legislation in
Hong Kong were suspicious of the very possibility of translating the common law
especially its terminology into Chinese One common misconception is to regard
English as the only language suited to express the concepts of the common law and
thus reject the possibility of translating the English common law into Chinese Ujejski
(1989) subscribing to Whorfrsquos theory of linguistic relativity expressed his deep
concern about the future of English language in Hong Kong law He remarked
If as Whorff claimed language and thought are inextricably linked and if language including
legal language is indeed a reflection of a culturally based lsquoconceptual realityrsquo we may need
seriously to consider what effects cultural differences may have on the future of the Common
Law in Hong Kong and thus on the language of the law in Hong Kong (p 183)66
For Ujejski the crux of the issue lay in the ldquocultural-philosophical gaprdquo between the
English common law and the Chinese language67 It is true that the linguistic and
66 Contending that it would be impossible to translate the English Common Law into Chinese Ujejski
quoted Cuthbertrsquos following remarks to support his argument
The institution of law in Hong Kong combines a system of rules with a system of institutions
derived from England In the historical evolution of English law philosophical moral and
ethical percepts cannot be abstracted from linguistic structure cultural values and forms of
human behavior Its roots can be traced back to ancient Greece and writings of Plato and
Aristotle Concepts such as lsquotruthrsquo lsquomoralityrsquo lsquoresponsibilityrsquo and lsquocrimersquo are locked both
into precept and language But in 1997 this entire cultural world view will be changed
Although the technology of charters and joint agreements will attempt to operate
homeostatically between the two value systems (capitalist and socialist) the Chinese
population of Hong Kong is already lsquoreality-compromisedrsquo since its semantic and conceptual
vocabularies are rooted to Chinese tradition custom and beliefs It is therefore difficult to
envisage how the present legal system and with it the institutions it supports can possibly
remain in even a fragment of its original state (p 183) 67 Ujejski quoted Michael Thomas a former Attorney General of Hong Kong who expressed a similar
view
THE LANGUAGE OF THE COMMON LAW 109
cultural differences between English and Chinese pose great difficulties in translating
the English common law into Chinese However constraints in translation do not
amount to the untranslatability of the common law In refuting those who upheld the
untranslatability of the common law for reasons based mainly on ldquolinguistic
relativismrdquo which ldquoinsists on the impossibility of dissociating what was expressed in a
language (content) from how it was expressed in that language (form)rdquo Roebuck and
Sin (1993) argued
It cannot be denied that languages have semantic-syntactic gaps Language A has a word for
which Language B has no syntactically unanalysable equivalent hellip examples of
semantic-syntactic gaps show only that symmetry rarely exists between language hellip
Translationrsquos primary task is to convey the various types of meaning which are independent of
the conventionalized arbitrary features of human languages And exact translation as a
meaningful concept must be understood in that context and as a linguistic activity must
proceed under those constraints hellip Unlike poetry which often exploits the special phonological
morphological and syntactic features of a language to achieve aesthetic effects and is therefore
language-bound to some extent law as a social institution is not dependent on language in the
same way hellip It prescribes human behaviour hellip Human behaviour hellip can be described with
similarly sufficient precision in any language The behaviour prescribed and regulated by the
Common Law is no exception (pp 200-02)
The important point to note here is that the law prescribes and regulates human
behaviour in ways which can be described not only in English but also in any other
The difficulty [of translating English statutes into Chinese] lies in the linguistic and cultural
difference between English and Chinese It is a known fact that different cultural communities
organize their internal relationships in different ways This results in legal contexts that differ
both in conception and expression (p 184)
THE LANGUAGE OF THE COMMON LAW 110
language just as the rules of a particular game can be laid down in different languages
such that players relying on different language versions of the rules can play the same
game There is no a priori reason why Chinese cannot be used to express the legal
concepts of the common law Semantic equivalence is achievable in legal translation
as noted in section 223 of chapter 2 Aiming to achieve semantic equivalence the
legal translator should import the source legal culture into the target legal culture an
approach which requires linguistic and conceptual adjustments of the translating
language In the same manner Chinese as the translating language can be expanded to
include newly introduced cultural concepts of the common law
Wong (1999) also denounced as bigotry the view that English is the only
language capable of expressing concepts of the common law He points out that Latin
and French were the languages of court proceedings in England before English took
over the dominant position and that ldquothe reason for the spread of English is political
cultural or economic rather than linguisticrdquo (p 31) However what most troubled
Wong was Section 10C (1) of Chapter 1 of the Laws of Hong Kong which stipulates
as follows ldquoWhere an expression of the common law is used in the English language
text of an ordinance and an analogous expression is used in the Chinese language text
thereof the Ordinance shall be construed in accordance with the common law
meaning of that expressionrdquo (Sect 10C Cap1) Wong (1999) expressed his deep
suspicion of such a semantic interpretation of the translated laws in Hong Kong
Thus constricted the Chinese equivalents of common law expressions are mere symbols in the
most unsophisticated sense of those words They have no meaning of their own however
beautifully rendered they might seem and however much their creator thinks they resemble the
original It matters not one jot (p 31)
THE LANGUAGE OF THE COMMON LAW 111
Actually if this remark is true the same strictures could be applied to any ordinary
native speaker of English who has no training in and no knowledge of the common
law In his case as well the technical expressions he comes across are no more than
ldquomere symbols in the most unsophisticated sense of those wordsrdquo and mean nothing to
him at all In the same vein should we not perhaps blame those who create these
wordsmdashlaw drafters and judgesmdashfor conjuring up such meaningless symbols
Evidently Wong has missed the whole point While it is no doubt true that the
translatorrsquos task is to give a ldquobeautifulrdquo rendition of common law expressions and
provide the closest possible Chinese equivalents the legal meaning of these
equivalents can only be properly construed in the light of the entire semantic
referential system of the common law Secondly Wong is wrong in his explanation of
how language works The ldquomere symbolsrdquo of the Chinese equivalents of common law
expressions are by no means ldquoconstrictedrdquo Instead the Chinese equivalent of a
common law term is defined as the equivalent for its counterpart in English
To provide Chinese equivalents of common law terms is a vital step in
transplanting the common law into Chinese History tells us that whether it was the
Christian Bible or the Buddhist scriptures that were being translated the translator had
to adjust the Chinese language in such a way that foreign concepts could be
assimilated into its conceptual system As a result the translated text was invariably
incomprehensible at the initial stage of assimilation as Sin (1998) put it ldquohellipopaque to
the uninitiated eyesrdquo (p 138) But now the Chinese equivalents of these biblical or
Buddhist concepts have become part of the Chinese language and culture This is also
the case with the common law in Chinese To sum up the problem at issue here is
neither the translatability of the common law nor why it should be translated but how
common law Chinese could be developed with a view to transferring the legal culture
THE LANGUAGE OF THE COMMON LAW 112
of the common law into Chinese The whole case by no means ldquomatters not one jotrdquo
Instead it matters a lot We will further discuss the second question in the following
sections
52 Legal Terminology and Legal Concepts
As has been shown in the previous chapter transferring the legal culture of foreign
laws into China has plenty of precedent Legal concepts and legal principles of the foreign
laws have been imported into Chinese since the Qing Dynasty To transfer the culture of
the common law ie its legal concepts and legal principles into Chinese is thus by no
means a novel venture As we know legal concepts of the common law are specific to
that system and are expressed by means of in its specific legal terminology In the case of
Hong Kong when the Official Languages Ordinance was amended in 1987 to stipulate
that the laws of Hong Kong be available in both Chinese and English the translation of
the common law terminology posed a serious challenge In the following sections we will
look at the specific features of common law English in which legal concepts and legal
principles are embodied and examine the specific problems in translating the Common
Law into Chinese from the aspects of the legal lexicon legislation and case law We will
first investigate the theoretical aspects of the terminology and the relationship between the
common law terminology and the legal concepts they stand for
THE LANGUAGE OF THE COMMON LAW 113
A study of terminology68 calls for an understanding of the form-meaning relationship
of the terms since it forms the basis of our inquiry into the relation between legal concepts
and legal terminology69 Since a word is a lexical unit constituting a term the study of
words constitutes the basis for the study of legal terms According to Saussure the
linguistic sign has two sidesmdashthe signal (the word form) and the significance (the concept)
while the word as a linguistic sign is composed of the word form (the signifier) and the
word meaning (the signified) (1986)70 An essential concept can be expressed and
lexicalized as (and in the form of) a noun a verb or a descriptive adjective In other words
a noun verb and descriptive adjective can signify the same essential concept71 That
concepts and word forms are not equivalent is shown by the fact that one word can have
more than one meaning in the same language72 Lexical relations could thus be illustrated
68 In search of a theory of terminology Sager (1990) defined terminology
hellipas the study of and the field of activity concerned with the collection description processing
and presentation of terms ie lexical items belonging to specialized areas of usage of one or more
languageshellip(p2) 69 A word is typically a single lexical unit while a term could be composed of a single word or a set of
words Terminologies are the technical or special terms used in business art science or special subject
Thus terms used in the language of the law consist of general terms and terms used pertaining to the
special context of the law which can be regarded as its terminology 70 ``Word form will be used here to refer to the physical utterance or inscription and ``word meaning
to refer to the lexicalized concept that a form can be used to express 71 We find that each essential concept when examined carefully has a root expression as a noun a verb
or a descriptive adjective The expression of a concept begins in one of these three word classes
However by affixing appropriate fragments each of these three word classes can (usually) be
transformed into another Conversely by removing these affixes a root expression can be revealed
Thus the underlying essential concept can be said to be independent of any specific word class
Alternatively we could say that all three word classes (noun verb and adjective) provide the same
expression of an essential concept 72 Each meaning of the word represents a different concept Such a word is called polysemy which
means that a word with (at least) two meanings yet sharing a lexical form According to Leech
ldquoSynonymy and polysemy are relation between form and meaning (a) Synonymy more than one form
having the same meaning (b) polysemy the same form having more than one meaningrdquo (1981 p94)
THE LANGUAGE OF THE COMMON LAW 114
according to the analysis of the different meanings of one word which Leech (1981)
defined as ldquoa process of breaking down the sense of a word into its minimal componentsrdquo
(p 89)73 In this regard componential analysis is very useful in understanding the relation
between concepts and words74 The problems of the translation of terminology hinge on
conceptual equivalence since there is not always a correspondence between pairs of terms
in the source and target languages The layperson usually believes that sound knowledge
of the source and target languages and a good dictionary are sufficient for translating a
term in question but even if this were wholly true it would be is in no way sufficient in
technical translating where the translation process is concerned with achieving conceptual
equivalence between two terms75 The degree of conceptual equivalence which exists is a
function of the extent to which the intentions of two or more concepts overlap Typical
degrees of equivalence include 73 Leech said
The meanings of the individual items can then be expressed by combinations of these (semantic)
features
man +HUMAN +ADULT+ MALE woman +HUMAN +ADULT - MALE
boy +HUMAN -ADULT + MALE girl +HUMAN ndashADULT- MALE
These formulae are called the COMPONENTIAL DEFINITIONS of the items concerned they
can be regarded in fact as formalized dictionary definitions The dimensions of meaning
themselves will be termed semantic oppositions (1981 pp89-90) 74 Nida (1975) supplemented the approach of componential analysis proposing that there are three
fundamental classes of components They are
(1) the common components ie those features which are shared by all the meanings being
compared and which accordingly constitute the basis for bringing such meanings together (2)
the diagnostic components ie those features which distinguish the meanings of any set and (3)
the supplementary components ie those additional features often connotative which are
significant in describing all the aspects of a meaning but which may not be strictly necessary in
contrasting a particular set of meanings (p182) 75 Since there used to be doubt that a true translation equivalence is possible because of the difference
of meaning of corresponding words in the two languages while in practice translation equivalence does
exist in the sense that translators in their daily operation select term Y in the TL (target language) as the
translation of term X in the SL (source language) and so one could say that X and Y are translation
equivalents
THE LANGUAGE OF THE COMMON LAW 115
(1) Complete equivalence a term in SL whose concept is the same as the term in TL The
two terms are thus judged to be equivalent
(2) Partial equivalence this can be further divided into two types One is narrower
equivalence where the concept of the term in TL includes fewer characteristics than
that of the term in SL against which it is being measured The other is broader
equivalence where the concept of the term in TL includes more characteristics than
that of the term in SL against which it is being measured
LanguageLanguage
Areaof Shared
Concept
Source Target
Figure 52 Different conceptual divisions across languages
(3) Non-equivalence the term in the SL whose concept does not exist in the TL
The foregoing discussion of conceptual equivalence is directly relevant to the
translation of terminology In cases when one linguistic form in the original language
represents several different concepts which are lexicalized in different linguistic forms in
the translating language such concepts should be understood according to the original
referential system In pointing out the significance of the referential system of the
terminology Sager (1990) remarked
THE LANGUAGE OF THE COMMON LAW 116
A theory of terminology is therefore primarily concerned with a referential system which relates
knowledge structures to lexical structure and defines the constituent elements of each type of
structure (p 14)
For Sager a theory of terminology inevitably involves a theory of ldquoconceptrdquo and
ldquoreferencerdquo as the concept conveyed by an item of terminology can only be construed in
its reference Based on the above definition the common law terminology which is
legally and culturally specific to the common law should be appropriately regarded as a
semantic system ie scientific expression of the system of common law concepts
Accordingly the study of common law terminology is the study of the relationship of the
linguistic signs and their concepts with special reference to common law culture An
investigation into the translation of the common law terminology into Chinese in terms of
cultural transfer will ultimately focus on the translated linguistic signs and their semantic
referential system
We can thus justifiably say that common law terminology is the lexicalized
expression of the concepts built into the common law As Carter (1994) points out
Basic concepts hellip build up in law as cases accumulate hellip they [concepts] do exist in law Often they
turn out to be sufficiently fixed and stable so that lawyers can engineer from them secure plans for their
clientsrdquo (pp 142-143)
This illustrates how significant the existence of legal concepts is in the common law and
how decisive the use of them is for lawyers In the common law legal concepts are
lexicalized or expressed by legal terms The translator has to identify the concept and the
referent that the word in the source language represents But if the translator fails to
THE LANGUAGE OF THE COMMON LAW 117
distinguish all the different concepts and referents that the word in the source language
can stand for she may end up selecting a word in the target language that represents the
wrong concept and referent
Therefore one of the difficulties that the translator may encounter in translating legal
terms is the problem of non-equivalence In some cases the legal concepts that are
expressed by the legal terms do not exist in Chinese There are no words in Chinese to
express some of the most elementary notions of the common law The terms the common
law and equity are only two of the examples There is no system of the common law
and equity in the Chinese legal system (neither in the PRC nor in Taiwan) In addition
many types of institutions proper to the common law have no direct counterparts in China
eg ldquoMagistraterdquo ldquoLands Tribunalrdquo and many others) In other cases partial-equivalent
terms also pose difficulties to the legal translator since one legal term can have both a
specific legal meaning and an ordinary meaning at the same time eg the term
ldquoconsiderationrdquo An equivalent for the ordinary meaning which is shared in Chinese can
be found but the specific legal meaning does not exist in Chinese Could such a Chinese
equivalent if selected as the translation convey the same legal meaning in the common
law For example transferring the expression used for seemingly similar institutions eg
ldquohigh courtrdquo risks blurring the differences between these institutions The common law
term high court could be translated into Chinese as gaodeng fayuan (高等法院)
However this very term as used in the PRC refers to a different legal institution operating
under a socialist legal system Therefore the Chinese equivalent gaodeng fayuan (高等法
院) for the common law term ldquohigh courtrdquo certainly does not mean the same as the
Chinese term gaodeng fayuan (高等法院) as it is already used in the PRC Gaodeng
fayuan (高等法院) as the translation for the common law term can only be properly
construed with reference to the common law system
THE LANGUAGE OF THE COMMON LAW 118
To propose appropriate translation strategies and techniques in translating common
law terms into Chinese requires a clear understanding of the vocabulary used in the
common law in the first place The vocabulary of the common law is multifarious
including as it does terms referring to legal institutions terms referring to legal personnel
terms employed in different branches of law and of course words used in everyday life
The question is how best we should categorize them While different criteria are possible
a classification in line with the relationship between the linguistic form and the legal
concept could be of great direct help and could also hold relevance for further
investigation of translation equivalence in general The classification of the common law
vocabulary discussed in this section will thus be based on the analysis of the term and
concept relation made previously76
(1) Technical terms also called terms of art these are terms used exclusively in the legal
sphere and have no application in ordinary language and they make up a significant
part of common law terminology As terms of art their technical meaning needs
scrutinizing when being translated as they are unique to the common law and have no
equivalent in Chinese It should be noted that most common law terms of Latin or
French origin belong to this category They can be divided into two sub-categories
(a) Technical terms that represent concepts constructing the body of the laws77
(b) Technical terms that represent concepts relating to the judicial mechanism78
76 Alcaraz and Hughes (2002) also divide legal vocabulary into three categories namely ldquopurely
technical vocabularyrdquo ldquosemi-technical vocabularyrdquo and ldquoeveryday vocabularyrdquo (pp154-65) 77 Selected examples include demurrer estoppel fee simple fee tail laches mens rea reprieve
trespass overrule trover and waiver
THE LANGUAGE OF THE COMMON LAW 119
Semi-technical terms these are common English terms which when used in a legal
context acquire a specific legal meaning Such terms are thus polysemous and more
difficult to identify As proposed by Sin (1998) they can be further divided into three
linguistic sub-categories
(a) Terms where the legal meaning is fully shared with the core meaning79 Core
meaning may be used to illuminate the meaning of other senses and all other
senses may be derived from this core meaning combined with contextual
information such as abandonment (fangqi 放棄) attempt (qitu 企圖) confession
(gongren 供認) defence (mianze bianhu免責辯護 kangbian 抗辯) negligence
(shuhu疏忽) public place (gongzhong defang 公眾地方 gongzhong changsuo
公眾場所)
(b) Terms where part of the legal meaning overlaps with the core meaning such as
consideration (daijia 代價 ) discharge (shifang 釋放 ) malice (eyi 惡意 )
representation (shenshu shu 申述書 chengshu 陳述) remainder (shengyu quanyi
剩餘權益)
(c) Terms where the legal meaning deviates completely from its core meaning eg
personal representative (yichan daili ren 遺產代理人) warranty (ciyao tiaojian
次要條件)
78 Selected examples include affidavit certiorari defendant fieri facias habeas corpus mandamus
metes and bounds plaintiff serve proceedings and voire dire 79 By core meaning we refer to the central or most fundamental concept that links the principal senses
of a word to its various other senses
THE LANGUAGE OF THE COMMON LAW 120
(3) Everyday vocabulary terms which are common or ordinary in English They are used
both in special context and in everyday common language and have no specialized
meaning in the common law
Historically and politically the language of the laws of Hong Kong was exclusively
English The Chinese legal terms employed in the PRC legal system and Taiwanrsquos
German-based civil legal system were distinct from those in common law English and as
a result no equivalent legal terms existed in Chinese To achieve conceptual equivalence
in translating terminology the translator has to generate a term in the target language
which can express the same concept as the term in the source language When
terminological concepts are shared in the source and target language the translatorrsquos job
is to find the conceptual equivalent But where one concept in the source language does
not exist in the target language the translator encounters a greater problemmdasha new term
in the target language has to be created which is capable of expressing the same concept
as the original term in the source language
53 The Language of the Legislative Texts and Legal Bilingualism
In the common law legal culture the notion of statutes as the primary source of law
is a recent development whereby an identifiable and sovereign legislature makes all the
rules by which disputes are resolved Making law by legislation is already an
indispensable part of the common law system as noted by Hiltunen (1990) ldquoNowadays
of course judicial principles are laid down through parliamentary legislation in many
areas where there is no tradition in the common lawrdquo (p 16) Section 4(1) of the Official
Languages Ordinance (Cap 5) in Hong Kong stipulates that that all ordinances shall
THE LANGUAGE OF THE COMMON LAW 121
subject to certain exceptions be enacted and published in both official languages ie
Chinese and English The statutory law of Hong Kong before 1997 is derived from the
common law legislation Most of the legislation remained intact after 1997 with little
being repealed or revised The official website of the Department of Justice of Hong
KongmdashBLISmdash is a comprehensive database for updated bilingual laws information and
most of it ldquocontains the statutory Laws of Hong Kong and selected constitutional
documentsrdquo80
For the legislative translator gaining a clear understanding of the language of and
the legal culture embedded in the legislation is a prerequisite to maintaining the legal
meaning intact It is argued that the language of statutes is one of the most complex forms
of language perhaps the most complex Some of these complexities result from the way
in which the law developed historically (Mellinkoff 1963) and some were no doubt due
to bad drafting Yet legislative language as a whole has won a defence from some
linguists
Legislative discourse cannot be said to be purely or wilfully esoteric or archaic or unintelligible as
its critics often say It constitutes a rational functional stylemdashmore accurately it is rational
because it is functional (Maley 1987 p 46)
The lexico-grammatical choices in legislative writing come from the goal of legislation to
provide certainty This requires that the language of legal rules should be precise and
explicit However in reality it is impossible for a legal rule to be so precisely framed that
80 BLIS website httpwwwlegislationgovhkindexhtm accessed on April 16 2008
THE LANGUAGE OF THE COMMON LAW 122
it encompasses all possibilities Therefore against the goal of certainty must be balanced
the goal of flexibility This is achieved through the use of words of general classification
such as place building or vehicle where class membership is open and through words
that allow for a degree of interpretation such as wilful or reasonable A balance between
certainty and flexibility can also be achieved through the interweaving of numerous
qualifications with the main provision This leads to very long sentences that cannot
easily be replaced by shorter sentences at least not without compensating in another
fashion (Bhatia 1994) Another characteristic of statutes noted by linguists is their
relationship with other related statutes ie their intertextuality Intertextuality in statutes
can be realized in a number of different ways through textual mapping devices for
example ldquoin pursuance of section 111 of this Actrdquo (Bhatia 1987) and through complex
prepositions such as ldquoby virtue ofrdquo and ldquoin accordance withrdquo (Swales 1982) They allow
the draftsperson to reduce the amount of information in an already extremely dense text
and signal to the reader where this information can be found In addition they explicitly
locate a statute in the context of preceding legislation and remind the reader of the wider
context in which the statute has to be read
Two other distinct features of legislative language must be noted its normative
nature and its instrumental purpose Legislation is made to confer rights define duties
and stipulate prohibitions purporting to be prescriptive directive and mandatory
Each legislation may contain one or more legal rules or legal norms delivering the
above functions Thus legal rules create legal relationship and identify in what
situation the legal relationship occur Vandevelde (1996) explains how legal
relationship is created in legislative language
THE LANGUAGE OF THE COMMON LAW 123
In general rules of law bear the form lsquoif x then yrsquo meaning that if these facts occur then this
legal right or duties arises Rules of law thus have a factual predicate and a legal consequence (p
19)
Therefore statutes themselves are the rules of law bringing about certain rights and
duties In terms of the basic elements of legal rules Šarčević (1997) analyzed the
famous English barrister George Coodersquos contention that ldquoall legal rules contain the
following four elements legal subject legal action case and conditionsrdquo (p 136)
She agreed with previous criticism of Coodersquos definition of the elements of legal rules
as too rigid since the two elements of case and condition could be combined into a
fact-situation while the other two elements ldquoconstitute the so-called statement of lawrdquo
but noted that ldquoit is significant that he singled out the legal action as the most
important element of a legal rulerdquo (p137) Šarčević (1997) subscribed to the more
recent development proposed by Kelsen and his followers who analyzed the
ldquoprescriptive and descriptive elements of legal rules or normsrdquo and Weinbergerrsquos
assertion that legal rules comprise ldquodescriptive fact-situation (propositional content)
and a prescriptive statement of law (normative content)rdquo (p 137) Thus the legal
translator must identify the normative content of the legislative language The
instrumental purpose of the legislative language is based on the underlying policy that
the legislature intends to promulgate Most statutes address matters of public policy
The public policies that the legislature intends to promote are considered as the
underlying policies on the basis of which rules of law are built The underlying
policies are the intent of the lawmakersmdashwhat kind of rights and duties they purport
to create and what remedies they decide to offer Underlying policy is of great
significance to legal reasoning It was the key element helping to understand the
statutes detect the intent of the legislature and analyze the application of the statutory
THE LANGUAGE OF THE COMMON LAW 124
rules As Bhatia (1983) put it legislation was the law ldquohellipto do justice to the source
rather than to facilitate comprehension of the unfolding text by any particular
readershiprdquo(p 9)
Consequently law is viewed as a normative social practice while the language
of the law being a specialized language written to regulate administer or mediate
the citizen of certain society is declarative or imperative in nature Approaching the
normative nature of the legal language from the pragmatic dimension the speech act
theory inspired by JL Austin and further developed by Searle is appropriate to
explain how the language of law is supposed to guide human behaviour and how it
can give rise to reasons for action The legal speech act is an illocutionary act usually
marked by a performative verb
Hence I shall argue that a legislative textmdasha statutemdashis a rule-enacting document The text as a
whole is considered a speech act with the illocutionary force of enactment this emerges from an
analysis of the language of what is known as the enacting formula of a statute which is an
explicit performative The constituent parts of a statute hellip may be hellip speech acts with the
illocutionary force of ordering permitting or prohibiting as indicated by the modal verb in the
main clause of the sentence (Kurzon 1983 p 51)
The speech act of ordering is typically performed by the use of the modal ldquoshallrdquo
which shows ldquohellip the obligatory consequence of a legal decision and [is] not
simply hellip a marker of future tense which is its normal functionrdquo (Crystal and Davy
1969 pp 206-7) The use of the modal ldquomayrdquo has the illocutionary force of
permission while ldquoshall notrdquo expresses the illocutionary force of prohibition In
considering the legal speech act Šarčević (1997) observed
THE LANGUAGE OF THE COMMON LAW 125
Translation problems arise because legal speech acts cannot be translated literally thus
preventing the translator from simply using the same form of the verb in the target text hellip
Pigeon repeatedly warned hellip against using the future tense in French to translate the English
imperative lsquoshallrsquohellip( p 137)
Bilingual legislation in Hong Kong at present means the enactment of new laws
in two languages namely English and Chinese since the translation into Chinese of
ordinances previously enacted in English has already been accomplished The present
drafting practice in Hong Kong already includes ldquoa translation process since the
English text is normally drafted first and then rendered into Chineserdquo (Lee 1996
p156) In the bilingual legislation context of Hong Kong the translator as both
message receiver and sender is required to construe the English legislation accurately
in such a way that Chinese version is as authentic as the English one81 This means
that the Chinese translation of the English common law must bear the same legal
meaning and have the same legal effect considering both the requirements and the
goals of the translation82 There is a basic presumption for this goalmdashthe presumption
81 ldquoSection 4(1) of the Official Languages Ordinance (Cap 5) now provides that all ordinances shall
subject to certain exceptions be enacted and published in both official languages The Law Drafting
Division of the Department of Justice (formerly known as the Legal Department or the Attorney
Generals Chambers) is responsible for preparing the two language texts of all ordinances and
subsidiary legislation introduced by the Government The first bilingual ordinance was the Securities
and Futures Commission Ordinance (Cap 24) enacted in April 1989rdquo (BLIS website A paper
Discussing Cases Where the Two Language Texts of an Enactment are Alleged to Be Different) 82 ldquoSection 10B (1) states the fundamental principle of equality between the two language versions of
our laws It provides that both language texts of an ordinance shall be equally authentic and the
ordinance shall be construed accordingly This means the Chinese text is neither subordinate to nor a
mere translation of its English counterpart (BLIS website A paper Discussing Cases Where the Two
Language Texts of an Enactment are Alleged to Be Different provided by the Law Drafting Division of
the Department of Justice)
THE LANGUAGE OF THE COMMON LAW 126
of same meaning in bilingual texts83 As elucidated by the Law Drafting Department
the very aim of legal bilingualism is ldquoto introduce common law concepts to the
Chinese language hellip Reference must be made to the meaning as it is found in the
common law The common law must be taken as the semantic reference schemerdquo84
Therefore two legal texts are stipulated to have the same meaning and share the same
system of reference ie the common law
The problems encountered by the legal translator in translating legislation
include two aspects namely cultural and linguistic The linguistic problems in
translating the English into Chinese mainly include (1) Complex and lengthy
sentences (2) frequent use of the passive voice Researches on the language of the
law are numerous and relatively comprehensive From both Mellinkoff (1963) and
Crystal amp Davyacutes (1969) attempts at systematization in the 60s up to the modern
studies carried out by Bhatia (1983 1993) on legislative texts by Kurzon (1984) on
cohesive structures and in Spain by Alcaraz amp Hughes (2002) on the peculiarities of
the English legal structure and its language among others the emphasis has been
increasingly placed on the need to define and describe the legal discourse in its own
context Therefore far from considering the legal text solely from its grammatical and
semantic point of view studies of legal discourse exploit the full range of linguistic
theory and are no doubt also influenced by the pragmatic flavour of other previous
multidisciplinary analyses Bhatia (1983 1987 1993) paved the way for the practical
83 ldquoSection 10B (2) of Cap 1 presumes the provisions of a statute to have the same meaning in each
authentic language text The two texts are taken to communicate an equivalent message in their own
fashion They are but two expressions of the same intent and together constitute one law embodying a
single meaning Words and expressions in one language should be deemed to bear the same legal effect
as their counterparts in the other language of the same legislationrdquo Ibid 84 February 1999 Legal Practice Law Drafting The Common Law and the Chinese Language
THE LANGUAGE OF THE COMMON LAW 127
application of genre theory by suggesting a comprehensive framework for analysing
non-literary genresmdashespecially LSP texts His studies of legislative texts examined in
detail their linguistic features in terms of preparatory qualifications cases and
conditions in an attempt to fill the gap caused by inadequate attention to training in
legal language in legal education system Bhatiarsquos work has shed considerable light on
the writing preferences of legal drafters Following Hallidayrsquos functional approach
Maley (1994) also researched legislative discourse by examining generic structure and
legal performatives He stressed the ways in which mandatory permissive or
discretionary elements in legislation determine the use of performative or operative
verbs (pp 20-21)
Let us look at the problem from the viewpoint of legislative drafting A rule of
law regulates behaviour in society It must be clearly formulated categorically stated
and accessible in terms of form The underlying logical structure of a rule of law and
its textual formulation are not always identical so recipients often have to construe
the relation between logical structure and the text Most importantly a rule of law
always exists as a logical proposition even if this not set forth formally in a statute
However when formally recorded one rule may be embodied in several texts
Although its textual formulation may sometimes be unclear or unambiguous the
logical structure of a rule of law always remains clear since the logical structure of the
legal rule determines the arrangement of its textual elements The so-called legislative
sentence is a sentence designed to confer rights or powers or to impose duties and can
also be used for prohibitions A mastery of the legislative sentence is useful for all
legal translators Legal rules expressed by the legislative sentence have a consistent
framework for their component parts divisions sections subsections and other
segments These linguistic conventions which may pose certain problems for the
THE LANGUAGE OF THE COMMON LAW 128
legal translator actually provide a framework for the legislative drafter The legal
translator should know how the rule was developed about the underlying intentions of
the drafter and about how the rule-maker wants the rule interpreted85 This may place
a heavy burden on the legal translator and it is also a burden that the legal translator
has to remove from othersrsquo shoulders Although a plain writing style was not a new
style for rules written in England ldquomost of the legal documents follow the basic rules
that were written 150 years ago by an English barrister by the name of George Cooderdquo
(Watson-Brown 1998 p 23) Coode developed a model legislative sentence which
has been adopted by drafters in most Commonwealth countries and in some American
states Coodersquos model has also influenced the drafting of clauses in legal documents
especially contracts86 Although Coodersquos analysis has been criticized by some legal 85 Generally there are three well-established interpretation rules supposedly to guide lawyers and judges
the literal rule the golden (or purposive) rule and the mischief rule The literal rule simply means
giving the text its ordinary everyday meaning and applying it exactly as written This rule came into
prominence in the 18th century The literal rule was founded on the assumption that words chosen by
Parliament in the Act (or any legislature in any law) clearly showed their intentions in passing that Act
(Holland amp Webb 1991 p 66) What the literalist would be looking for is the primary or most obvious
meaning of the word not any general meaning or secondary meaning (Ibid pp 166-167) The literal
rule is admittedly a workable criterion for statutory interpretation The golden rule meant that words
should be construed in their ordinary sense unless that would lead to absurdity or inconsistency in
which case the senses of the words might be modified to avoid that absurdity and inconsistency (Cross
1987 p 14) The mischief rule seeks to discover the real intention of the legislature and represents a
somewhat more purposive approach to interpretation which sets out the job of the judge as to determine
what defect in the common Law the statute set out to remedy and apply what is ascertained to be the
intention of parliament There are other three rules which guide the statutory interpretation the rule of
ejusdem generis (lsquoof the same kindrsquo) the rule of noscitur a sociis (lsquoa thing is known by its associatesrsquo
[also known as the rule of rank] and the rule of expressio unius est exclusio alterius (lsquothe mention of
one thing is the exclusion of anotherrsquo) (Cross 1987 p 136) 86 According to Coode most law is designed to change the position of a person or a class of persons by
conferring a right privilege or power or by imposing a duty To carry out these functions effectively a
legislative sentence should contain four elements the legal subject which is a description of the person
or class of persons who is given a power or duty or whose legal position is otherwise affected by the
THE LANGUAGE OF THE COMMON LAW 129
theorists as too rigid it remains a good starting place because it suggests the kind of
analysis drafters should attempt before starting to draft87 The complex and lengthy
sentences of the model were drafted expressly for the purpose of formulating legal
rules and enabling a drafting convention to be followed Since legal texts (statues
treaties contracts) defend the rights of a person or group or impose obligations their
drafters must pay ldquoscrupulous attention to making sure that the legal text is hermetic
and unambiguousrdquo (Taylor 1998 p 130) Admittedly the efforts to achieve a
hermetic and unambiguous text often result in a text that can be ldquoat times seemingly
impenetrable syntactically complex full of apparent redundancyrdquo (p131)
Another problem that the legal translator encounters is the use of passive
structures When using the passive voice a statement acquires an air of mystery as the
actor remains unknown until after the action is stated An omission of the actor
renders the statement even more mysteriousrdquo (p 23) Such an air of mystery is
operation of the law the legal action which is a description of the legal action or legally significant
impact that will result from the operation of the law and the case which is a description of the facts that
must have occurred the circumstances that must be present and the conditions that must be met for the
law to operate In the classic legislative sentence these three elements are arranged in the following
order
(1) the case is set out first in one or more subordinate clauses introduced by ldquoifrdquo ldquowhererdquo or
ldquowhenrdquo
(2) next comes the legal subject The legal subject is also the grammatical subject of the main
clause The legislative sentence ends with the legal actionmdasha description of what the legal subject may do or is
entitled to claim or must do or must not do 87 Admirable as it is Coodersquos model has certain problems One is that it relies on a left-branching
sentence structure Another problem is that it encourages drafters to equate a legal provision with a
self-contained legal unit on the one hand (the section article or clause) and with a self-contained single
grammatical unit on the other (the sentence) The final problem is that Coodersquos analysis of legal action
the third element of the legislative sentence is narrowly focused on rights duties and powers It
ignores definitions and other types of declarations
THE LANGUAGE OF THE COMMON LAW 130
preferred by the legal drafters since the passive voice conveys the kind of objectivity
and lack of bias that legal rules are supposed to exhibit Consequently the legal
translator may find this particular linguistic problem hard to solve since legal English
creates linguistic patterns that are particularly difficult to translate directly into
Chinese However it is possible to write legal rules as Watson-Brown suggests ldquothat
will reflect (upon translation) the same meaning without tortuous Chineserdquo (1998 p
23)88 The legal translator does not necessarily follow the sentence sequence of the
English legislative text Instead he can use sentence structures idiomatic to Chinese
as long as the original meaning can be delivered
As can be seen from the discussion above past research on legal translation was
under the influence of the linguistic approach to legal translation mainly concerned
with the linguistic features of legislative language Inspired by applied linguistics
Alcaraz amp Hughes (2002) put forward the idea of ldquoindirectrdquo legal translation which
aims ldquoto produce on the target reader an equivalent effect to that produced by the
source textrdquo (p 180) Instead of explaining how the equivalent effect could be
produced on the target reader they mainly discussed the linguistic features of
legislation and the linguistic problems confronting the legal translator in the aspects of
ldquomodifiersrdquo ldquoadverbsrdquo ldquosyntaxrdquo ldquothematization and ldquotextual coherencerdquo To deal
with such problems they suggested three techniques ie transposition expansion and
modulation (pp 186-192) However they seemed to have ignored a more significant
88 Waston-Brown (1998) also proposed some solutions to the English legal drafter in terms of avoiding
pitfalls in bilingual legislation
(3) Use the active voice the present tense and indicative mood
(4) Use an intuitive syntax leaving the verbal qualifications until the end of the sentence
(5) Use short sentences by deleting lsquoandrsquo when it joins two principal clauses and
(6) Learn Chinese syntax and attempt to match it with the English text (p23)
THE LANGUAGE OF THE COMMON LAW 131
problem besetting the legal translator namely the cultural problemŠarčevićrsquos (1997)
contention that legal translation is not linguistic transcoding did not prevent her from
approaching legal translation both from a linguistic and a cultural perspective She
studied syntactic features of the legislative text and noted that ldquothere is essentially one
basic underlying thought pattern hellip the basic logical structure of legal rules is
expressed by the formula if P then Qhelliprdquo basing her analysis on Coode (p 162) She
also discussed other stylistic features of legislation such as the use of negation and the
impersonal Šarčevićdid not find herself totally constrained by the linguistically
prescriptive aura of legal translation She suggested in fact that legal translators could
be creative in translation She realized that a ldquotranslatorrsquos greatest challenge when
translating the fact-situation of a legal rule is to find suitable ways of compensating
for conceptual incongruencyrdquo (p 149) She exemplified this conceptual incongruency
by citing an example from the Canadianrsquos experience of bilingual legislation In this
example the selection of the common law term ldquowilful conductrdquo as the equivalent for
dol in French caused confusion since the term ldquowilful conductrdquo ldquoincludes not only
acts performed with intention but also acts performed carelessly without regard to the
consequencesrdquo (p 150) Instead of providing a solution for the problem however she
merely commented that the use of descriptive paraphrase by Canadarsquos legal translators
was not a good way to overcome conceptual incongruency (p 151)
The researcherrsquos preoccupation with the linguistic problems of legal translation
may be justified if we view translation as a pure process of linguistic transcoding
However linguistics alone cannot help us to see the whole picture Roebuck and Sin
(1993) rightly pointed out
THE LANGUAGE OF THE COMMON LAW 132
The existence of semantic gaps only proves the truism that different languages have different
ways of organizing the semantic fields of their basic vocabularies Although there are hardly
one-to-one correspondences between them a simple predicate in one language can almost be
mapped onto several correlative predicates in another hellip Likewise the existence of syntactic
gaps only show that different languages have different rules for generating acceptable formal
structures which are simply habitual ways of ordering phrasal and sentential components hellip
Accordingly examples of semantic-syntactic gaps show only that symmetry rarely exists
between languages hellip Translation as a linguistic activity for facilitating communication
between different language communities must take that linguistic fact as its starting point but it
decides nothing Translationrsquos primary task is to convey the various types of meaning which are
independent of the conventionalized arbitrary features of human languages And exact
translation as a meaningful concept must be understood in that context and as a linguistic
activity must proceed under those constraints (pp 200-201)
Thus Linguistic problems are not as difficult as the theorists reckoned them to be The
translatorrsquos greater challenge is the cultural problems to be faced in the process of
translation of legislation (or bilingual legislation) as Sin (1992) pointed out
The creation of a Chinese Common Law vocabulary for the rewriting of the Common Law in
Chinese will signify a large-scale assimilation of the entire English legal tradition into Chinese
culture (p 98)
The construction of every legislative rule was a process of conceptualization and the
legal drafter ldquowill usually draft from a precedentrdquo as Watson-Brown observes (1998
p23) To summarize the aim of bilingual legislation is to rewrite the common law in
THE LANGUAGE OF THE COMMON LAW 133
Chinese and the two parallel legal texts namely English and Chinese share the same
system of reference ie the common law
54 Case Law Languagemdashthe Language of Judges
In the common law the notion of statutes as the primary source of law is a
recent development and beneath the burgeoning corpus of statues of the past years lie
the bulk of the common law the collection of judgesrsquo judgments that makes all the
rules by which disputes are resolved Judgments are law in action an abstract legal
rule is applied to a set of facts to solve a concrete problem and the solution is justified
Judges actually play an important and integral part in the common law system as it
has evolved In the common law system a judge is first called upon to find the law
next to interpret it then to articulate it and finally to apply it to the facts and the
situation presented in the courtroom It is the first two steps to find the law (with the
help of counsel) and to interpret it which come closest to the business of actually
making law Although much of the primary onus for the making of rules now lies on
the legislature it is still acknowledged that the common law system has historically
preferred to make law by adjudication than by legislation Consequently judge-made
law still plays and will play a significant part in the common law
In the case of Hong Kong where the law is built upon the common law judicial
precedents thus carry the same legal weight as legislation The legal rules and
principles that judges use to resolve present disputes will be applied to similar
disputes in the future As judicial precedents which are all reported in English are the
bases for the interpretation and application of statutes in the common law system it
THE LANGUAGE OF THE COMMON LAW 134
will be difficult for legal practitioners to cite authorities in bilingual judicial
proceedings if there are no Chinese supporting materials for the respective ordinances
Besides as a judgment carries legal weight the translated version should be written in
precise language that captures the exact legal meaning of the original Translation of
binding precedents is therefore no less important than the translation of statutes
However in Hong Kong only a number of selected judgments have been translated
into Chinese The following reason was provided by the Department of Justice
(2004)89
The principles of the Common Law are to be found in the judgments of the courts both in Hong
Kong and in other Common Law jurisdictions around the world The language in which those
judgments have been delivered over the years is almost exclusively English There are hundreds
of thousands of reported cases which form the basis of the Common Law and it would
obviously be impractical to attempt to translate these into Chinese While in future there is likely
to be an increasing number of judgments in Hong Kong delivered in Chinese English will
continue to be the only medium in which the majority of judgments from overseas is reported
Given the above-mentioned constraint there is no denying that translating English
judgments into Chinese is of great significance and we must now explore the
language of the judgments and the difficulties encountered in the translation process
To solve the problem of cultural transfer in translating common law judgments
into Chinese requires the legal translator to fully understand the language of the
judgments in the first place Judgments can be found in law reports These serve as the
89 The passage is quoted from the Department of Justice website Information based on the
Departmental publication Legal System in Hong Kong printed in 2004
THE LANGUAGE OF THE COMMON LAW 135
written record of the explanation that judges give of their reasoning and they enable
ready access to previous judgments90 Generally judgment as a form of law is
formal and authoritative The common law judge writes opinions as a narrator of the
law91 The prestige he enjoys in his professional milieu allows him to fully and openly
assert his own interpretation of the law and to present it in through argumentation
Consequently the decision-giving process involves two intertwined process namely
the interpretation of the legal rules that are being applied to the specific case and
factual situation and the argumentation supporting why a decision is made in one way
rather than another Although each judgment will to some extent reflect the individual
styles of the judge arriving at it it will always stand on these twin pillars of
argumentation and interpretation92 These modes in turn can shape the distinctive
features of the language of judgments93
90 A judgment can be divided into four components The first component is a brief description of the
important points in a particular case The second component is an introduction It gives the readers a
general idea of the case The third component is a list of cases referred to in the judgment The fourth
and the most important component is the main body of the judgment It is in this part that the opinions
of the judges are delivered 91 The main body of the judgments has two parts ratio decidendi and obiter dictum As the rationale of
particular judgment ratio decidendi states the underlying principle of law and represents the logical
basis of judicial decision Unlike obiter dictum which is the remark or observation made by a judge
while issuing a ruling ratio decidendi has binding force 92 After examining some technical and semi-technical legal terms that judges frequently use in giving
their decisions Alcaraz amp Hughes (2002) observed that ldquoin keeping with the British tradition of
strongly reasoned judicial opinion judgments are often couched in a style that is flavoured with the
personality of their makerrdquo (p 114) In addition to their role in convincing the parties judges also argue
about the appropriateness of the norm being applied (the stare decisis function of judgments) Thus
judicial opinions are also aimed at persuading their readers of the correctness of the decision reached
Modes and means of persuasion such as explicit argument rhetoric metaphor and syntax are
sometimes language-specific and this may cause difficulties to the legal translator 93 Since many legal disputes are battles over the meaning of a statute contract testimony or the
constitution judges must interpret language in order to decide why one proposed meaning overrides
another And in making their decisions about meaning appear authoritative and fair judges often write
THE LANGUAGE OF THE COMMON LAW 136
Judicial language thus constitutes a special genre and research into the language
of judges has revealed a number of linguistic and legal problems which can ensnare
the translation process Judgments are important texts in legal education and
constitute a considerable amount of the required reading of law professionals A
generic structure of judgments had been identified (Bhatia 1993) as well as a
relationship between the structural elements and the communicative functions of
declaring and justifying Alcaraz amp Hughes (2002) considered that linguistic problems
affect ldquoonly the tone and style of the judgment and are in no way concerned with
matters of lawrdquo (p 115) One prominent linguistic feature is the use of the first person
singular Another is the flavour of relatively colloquial expressions introduced in
order to ldquotemper the severity of the law to make the opinion sound more humane and
to create an impression of reader-friendlinessrdquo (p 116) Maley (1994) also approached
the use of the first person singular from the view of modality which he found played
an important role in the justifying function of judgments He cited a famous speech
delivered by Lord Atkin as an example of the semantics of modality Elaborating on
Hallidayrsquos distinction between two kinds of modality modalization and modulation
Maley explained
about the nature of linguistic interpretation Thus the language itself serves an interpretive function
Both legal interpretation and legal reasoning concern the application of legal rules Every rule is
formulated within a certain context but does not explicitly reflect that foundation The background
comprises the elements of the time the place the reason the process and the people who make the rule
Once a legal rule is written down in the form of language it loses its background simply because of the
inherent limits of language This linguistic constraint makes the application of legal rules all the more
difficult Where a judgment seeks to justify a particular interpretation of a norm the judicial opinion is
actually an exercise in persuasion it is a subtle interweaving of a statement of a legal norm and the
justification for both the normative content and the form in which it is stated Judges must be free to
use rhetorical techniques that are central to the persuasive force of a text
THE LANGUAGE OF THE COMMON LAW 137
Modalization expresses the varying degrees of probability and usuality while modulation
expresses the various degrees of obligation and inclination Both modalization and modulation
are expressed from the viewpoint of the speaker they can nevertheless be expressed as thoughts
they are objective or subjective In Lord Atkinrsquos speech hellip when he projects lsquo[persons] that I
ought reasonably to have in contemplationrsquo from lsquothe answer seems to behelliprsquo the latter [is] an
example of an objective modalisation and the former a subjective modulation That is Lord
Atkin is saying what in his opinion the law should be (1994 p46)
Maley (1994) thus concluded that ldquomodalisation and modulation are the chief
linguistic means of expressing the justificatory and declaratory functions of
judgmentrdquo (p 46) Unlike the consistent formal and authoritative language of the
legislation the language of judgments may be tainted with the personal style of
individual judges The legal translator should always take into consideration the need
to preserve the stylistic feature of judgments
Solan (1993) carried out a detailed examination of the linguistic aspects of the
law to illustrate ldquohow and why judges write about the structure and meaning of
language to justify their decisionsrdquo (p 1) Solan used various examples to illustrate
the way linguistics entered the process of judicial decision making analysis of the use
of adjectives in jury instruction analysis of the relationship between adverbs and
prepositional phrases and cases focused on the meaning of certain words in the
legislation Judges often faced linguistic issues when lawyers attempted to interpret
legal rules in the legislation or legal principles laid down in previous judgments in
favour of their own clients (p 28) The final decision rested with the judges
THE LANGUAGE OF THE COMMON LAW 138
hellip the judge hellip will often resort to legally recognized principles of interpretation such as
attempting to divine the intention of the drafters of the document On occasion these principles
are linguistic and it is upon these that I will focus hellip Included among the examples are a
linguistic-legal principles called the last antecedent rule principles governing the interpretation
of conjunction and disjunction (and and or) rules for the interpretation of pronouns and a
debate about the proper scope of adjectives (Solan 1993 p 28)
The above mentioned jurilinguistic principles are a useful starting point when trying
to understand the linguistic problems that the legal translator may encounter The ldquolast
antecedentrdquo rule is the doctrine of interpretation that states that the qualifying words
or phrases in a statute refer to the immediately preceding language unless common
sense indicates that they were intended to apply to something less obvious or more
distant It thus forms an interpretive guide that courts may use to decipher uncertain
statutory language94 In summary a linguistic approach gives us some valuable
insights into the language of judgments and their interpretative rules
In legal translation it is crucial for the translator to understand the underlying
legal principles and legal reasoning in order to transfer the culture of the case law into
Chinese As already shown above rules and principles in each subject of the law have
been developed into concrete and coherent constructions that make up the common
law today These rules and principles have been consistently developed by judges in
94 The andor rule is an interesting and controversial one Legal drafters try to be clear by using
ldquoandorrdquo However there are still many case laws interpreting these two conjunctions Although courts
generally prefer interpretations that make sense of language over ones that turn it into nonsense the
judicial interpretation of ldquoandorrdquo is sometimes an exception How this could be implemented in an
adversarial system was somewhat difficult to see since the interpretation of statutes and legal principles
was considered to be a question of law and therefore the domain of judges (Tiersma 1999 p 130)
THE LANGUAGE OF THE COMMON LAW 139
their decisions95 In section 33 of chapter 3 we have identified the very culture of the
common law as a set of legal concepts and legal principles The concrete
representations of this culture are evident in the various judgments Legal principles
derive from the process of legal reasoning while legal reasoning is based on legal
principles The two are inseparable in a judgment A definition of legal reasoning
given by Carter (1994) described its composition
Legal reasoning describes how a legal opinion combines the four elements the facts
established at trial the rules that bear on the case social background facts and widely shared
values When judges reason well their opinion harmonizes or lsquofits togetherrsquo well these four
elements (p 15)
Carter (1994) also pointed out that ldquoJudicial opinions hellip give meaning to all types of
legal rules hellip precedents in many cases are vehicles for rationalizationsrdquo (pp15
143)96 This means that only if we understand the judicial opinions can we understand
the meaning of legal concepts or principles and hence case law as a whole97 Maley
(1994) thus concluded that ldquocommon law judges do not regard the application of the
95 The common law system is based on the legal principle of deciding points in litigation according to
precedent This applies both to application of the common law and interpretation of statute Under this
principle decisions of courts on matters of law are binding on subordinate courts or tribunals and if
not binding are highly persuasive on the court itself or equivalent courts 96 It is argued that there are at least three things which legal theorists could mean by legal reasoning (a)
reasoning to establish the existing content of the law on a given issue (b) reasoning from the existing
content of the law to the decision which a court should reach in a case involving that issue which
comes before it and (c) reasoning about the decision which a court should reach in a case all things
considered 97 Reasoning by analogy is integral to legal reasoning in the common law Any theory of legal
analogizing that seeks to explain the way in which precedents are utilized must account for the
influence of legal principles on the creation of legal analogies and for the use of analogies as a means
to test and refine these principles
THE LANGUAGE OF THE COMMON LAW 140
principle of law to the facts of the case as a purely mechanical process Reasoning is
involved a kind of reasoning by analogyhellip In giving judgment judges hellip make
explicit the reasoning processes which have led them to that decision the cases they
have considered the analogies they have considered and rejectedmdashin short their
individual lsquofullest examinationrsquordquo (p 43) Legal analogizing thus plays an important
role in determining the scope of principles themselves98
Let us take an example from criminal cases to illustrate how legal principles in
the judgments might be identified In the common law tradition the vast majority of
criminal law is un-coded and the legal concepts and legal principles could be found
only in the judgments One essential legal concept in criminal law is mens rea This
focuses on the mental state of the accused and requires proof of a positive state of
mind such as intent recklessness or wilful blindness Some level of mens rea is
always a required element of the crime with which the accused is charged and must
be proven by the prosecution Therefore the principle of mens rea is the fundamental
principle of the criminal law In the famous mens rea murder case R v Nedrick 99 it
was made plain by Lord Lane CJ that the mens rea of intent could be inferred by a
jury when the defendant knew that death or really serious injury would come about as
a ldquovirtual certaintyrdquo of the act contemplated and done The House of Lords held in R v
Woollin100 reasoning by analogy that the principle of mens rea was applicable to the
present issue However it developed the principle of mens rea by suggesting that the
use by the trial judge is of ldquosubstantial riskrdquo rather than ldquovirtual certaintyrdquo Actually
98 Principles are empty unless tested by reference to concrete examples Any complete model of legal
reasoning and legal analogizing must simulate the manner in which principles influence the creation of
analogies and the way in which principles are themselves tested and refined on a case by case basis 99 [1986] 1 WLR 1025 100 [1998] 3 WLR 382
THE LANGUAGE OF THE COMMON LAW 141
there are other cases that address the principle of mens rea ie R v Moloney 101 and
R v Hancock and Shankland102 These cases worked together to clarify the legal
concept and legal principle of mens rea especially the meaning of intention in terms
of acts that cause grave bodily harm or death
We can see that judgments are part of a community and part of a tradition103
Judgments are law in action where abstract legal rules are applied to solve concrete
problems and its justification are provided Most importantly judgments state what
the law is and define the legal concepts and legal principles embodied in the law In
other words judgments make up the most substantial part of the referencel system of
the common law against which the legal terms should be construed Therefore we
need resort to judgments for the real meaning of a translated legal term in the
legislation in order to understand the concept it stands for and related legal concepts
and legal principles In this sense translation of judgments is one of the most
important ways of building a metalinguistic mechanism for the common law As
noted in section 223 of chapter 2 cultural transfer is eventually effected by
metalinguistic operation as such
101 [1985] 1 All ER 1025 102 [1986] 2 WLR 257 103 In this connection Goodrich (1990) remarked
The Common Law will always exceed its particular texts its particular references its positive
forms To know the law is a matter of knowing an antique and unwritten tradition that exists
outside of history beyond all texts in the inaugural realm of things divine and to be divined
(augured) In Cokersquos words even where it is a matter of reading the law it is a question of reading
not simply the words of the text but also the tradition that accompanies them ( p 117)
Chapter 6
Cultural Transfer in Translating the Common Law into Chinese
61 Transfer of the Legal Culture of the Common Law
611 Problems in Translating the Common Law into Chinese
As we saw in the previous chapter the language of the common law is a complex
collection of linguistic habits that have been developed over many centuries one that
judges lawyers and other legal professionals have learned to use strategically Its
distinctive linguistic features accordingly reflect the underlying conceptual thinking of
such users In the same chapter we found that the legal culture of the common
lawmdashits legal concepts and legal principlesmdashis intricately woven into the texture of
its language In this section we will further analyze how both the legal culture and the
language of the common law pose difficulties to the legal translator as she sets about
her work
The problems that arise when translating the common law into Chinese are
closely related to both the legal culture of the common law and the specific features of
English legal language and we can categorize them into two major groups
(1) Problems arising from cultural differences between English and Chinese
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 143
The most daunting aspect of translating the common law into Chinese is the
culture-specific quality of the source legal texts In many cases a difference in the
mere form of wording amounts to a difference in law
For instance if A lends money to B on mortgage and stipulates that the interest shall be 5 per
cent but if not paid promptly 6 per cent the latter part of the provision is void as a penalty Thus
B need pay only 5 per cent even if he does not pay promptly Yet if A had provided that interest
should be 6 per cent but if paid promptly 5 per cent the whole would have been good (Williams
1948 Jan pp 78-9)
In essence both provisions stipulate the same thing B to pay 5 per cent if he pays
promptly if not 6 per cent Yet the first formulation is not allowed by law whereas
the second is allowed Following the wording of the source text would seem to be a
play-safe strategy in legal translation and in the present case there is no immediately
apparent reason for the translator to deviate from the original wording But consider
the following case
If A gives property on trust for B lsquobut if B marries then for Crsquo the gift to C is struck out because
it tends to induce B to remain unmarried and the procreation of legitimate children is regarded as
a public interest Thus on this form of words B will take absolutely But if the words used were
lsquoon trust for B until he marries and thenceforth for Crsquo the gift over would be valid and B would
lose the property if he were to marry (Ibid p 79)
Here we meet the famous distinction between ldquobut ifrdquo and ldquountilrdquo in English law
Again it is obvious that both of the formulations under scrutiny intend to stipulate the
same thing B must give up the property to C once he marries However the
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 144
formulation using ldquobut ifrdquo is regarded as void whereas the one using ldquountilrdquo is valid
The translator may well find that her translation of the second formulation into
Chinese ldquo甲以信託形式將財產贈予乙直至乙結婚為止屆時財產將改贈予丙rdquo
looks rather clumsy and so turn instead to the wording of the first formulation which
looks simpler and more natural ldquo甲以信託形式將財產贈予乙 但如乙結婚 則改
贈予丙rdquo If she does this however she will have turned the original valid formulation
into an invalid formulation
As judicial decisions are sometimes arrived at purely on the particular words
used in a particular case changing the wording of the source text risks producing the
opposite legal effect in the target text This is why lawyers are so cautious over the
words they use This is also why the legal translator is often instructed not to deviate
from the wording of the source text
At a higher level the particular sentence structure of a statute may embody the
spirit of the common law According to Francis Cheung (1991) a penalty provision in
English criminal law is invariably formulated in the negative which is a manifestation
of a fundamental principle of the common law namely the ldquoresidual principlerdquo (pp
304-05) This principle accords citizens freedom to do whatever they like so long it is
not expressly prohibited by the lawmdashfreedom is whatever the law does not expressly
prohibit In contrast traditional Chinese law accords people freedom to do those
things allowed by the lawmdashfreedom is whatever the law allows To illustrate this
point he cited as an example the translation of a section of the Film Censorship
Ordinance 1988
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 145
15 (1) A person shall not exhibit a film in respect of which a certificate of exemption has been
issued under section 9 or a certificate of approval has been issued under section 13 unless the
certificate or a legible photocopy thereof is displayed and kept displayed in a conspicuous
position in or about the entrance to the part of the place intended to be occupied by persons
viewing the exhibition of the film during the period of exhibition of the film
The section was translated into the following two alternative versions
Version 1
15 (1) 任何人上映影片須在影片上映期間將根據第 9 條發給該影片的豁免證明書或其
清晰影印本或根據第 13 條發給該影片的核准證明書或其清晰影印本一直展示在用以容
納觀眾觀看該影片的場所入口或近入口處的當眼位置否則不得放映該影片
Version 2
15 (1) 無論何人不得上映根據第 9 條獲發豁免證明書或根據第 13 條獲發核准證明書的
影片除非在該片整段放映期間將上述證明書或其清晰影印本[或上述核准證明書或其
清晰影印本]展示在用以容納觀眾觀看該影片的場所入口處或近入口處的當眼位置
Cheung noted that Version 1 was more fluent but since it was formulated in the
affirmative and therefore unable to reflect the spirit of the residual principle it was
eventually not adopted On the other hand even though Version 2 sounded a little
unnatural in Chinese it was adopted as the official translation since it conformed to
the legal norm for penalty provisions
Thus in legislative translation the linguistic features of the source text often
dictate how it should be translated Preserving the linguistic features of the source text
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 146
is not as Vermeer and Snell-Hornby alleged transcoding but preserving the culture
of the source text
The language of the common law is also a manifestation of a series of
traditionally well-formed legal concepts These conceptions are the philosophical
foundations of the common law tradition and the basis of the legal principles
cultivated by legal reasoning unique to the conceptualization of the common law
Some common law terms for example are noted for their generality and abstractness
eg ldquoreasonable personrdquo or ldquodue processrdquo Common law language also employs
many abstract concepts that ldquodo not take their meaning from sensed experience but
are normative in characterrdquo (Farrar amp Dugdale 1990 p 77)67 The legal translator
must thus overcome the conceptual differences between English and Chinese Having
shown that legal concepts and legal principles are the major elements in the culture of
the common law we now need to discuss how they pose problems for the legal
translator The following example is taken from the frequently cited case Donoghue
(or MrsquoAlister) v Stevensonmdashthe ldquoPaisley snailrdquo case68 In the case Lord Atkin made
a famous speech which constructed the foundation of the modern law of negligence69
67 Farrar and Dugdale (1990) created a vivid simile to illustrate the importance of concepts in the
Common Law They remark ldquoIndeed conceptual thinking came to dominate the English Common
Lawhellip Concepts are more like chess pieces They can be maneuvered to produce certain results but the
players have a choice as to the move Similarly lawyers and judges often have a choice as to how they
will move the concepts They way in which they are moved and are applied to facts involves a process
of reasoning helliprdquo (p 78) 68 In this ground-breaking case a woman May Donoghue claimed to have been made ill by a bottle of
ginger beer she had bought in a cafeacute in Paisley Mrs Donoghue sued not the proprietor of the cafeacute but
the manufacturer of the drink She argued that the manufacturer had been negligent in not noticing that
the bottle contained a snail before filling it with ginger beer and sealing it Donoghue v Stevenson was
ground-breaking in Scots law as previously the customer would have been expected to sue the
shopkeeper rather than the manufacturer with whom she had no lsquocontractrsquo However in this instance
the drinkrsquos manufacturer was found liable for damages as they had neglected to provide a system to
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 147
Firstly it is evident that there are many terms peculiar to the Common Law such
as ldquoduty of carerdquo ldquoliability for negligencerdquo ldquoacts or omissionsrdquo ldquoreliefrdquo ldquoremedyrdquo
In the Common Law duty of care is the legal obligation as a citizen in societymdashit is a
question of law that requires the judge to determine if the duty is under a legal
obligation to exercise reasonable care in favour of the plaintiff Thus mastering the
cultural implications of the above legal concepts the ldquocultural immersionrdquo suggested
by Curran (1998 p 83) was a pre-requisite for the legal translator to comprehend
thoroughly the meaning of the English legal text As noted in section 52 of chapter 5
the effort to find Chinese equivalents for the above English terms would be futile
since there are no terms available in Chinese to express some of the most elementary
notions of the common law The legal translator in Hong Kong has to overcome the
difficulty of translating terms expressing concepts which are absent in Chinese
protect the public in such a way that lsquosnails would not get into the said bottle render the said
ginger-beer dangerous and harmful and be sold with said ginger-beerrsquo 69 Lord Atkinrsquos remarkable judgment in this case reads in part
At present I content myself with pointing out that in English law there must be and is some
general conception of relations giving rise to a duty of care of which the particular cases found
in the books are but instances The liability for negligence whether you style it such or treat it as
in other systems as a species of lsquoculparsquo is no doubt based upon a general public sentiment of
moral wrongdoing for which the offender must pay But acts or omissions which any moral code
would censure cannot in a practical world be treated so as to give a right to every person injured
by them to demand relief In this way rules of law arise which limit the range of complainants
and the extent of their remedy The rule that you are to love your neighbour becomes in law you
must not injure your neighbour and the lawyerrsquos question ldquowho is my neighbourrdquo receives a
restricted reply You must take reasonable care to avoid acts or omissions which you can
reasonably foresee would be likely to injure your neighbour Who then in law is my neighbour
The answer seems to bemdashpersons who are so closely and directly affected by my act that I ought
reasonably to have them in contemplation as being so affected when I am directing my mind to
the acts or omissions which are called in question (Donoghue (or MrsquoAlister) v Stevenson [1932]
All ER Rep 1 [1932] AC 562 House of Lords [1932] AC 562)
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 148
Secondly since a set of legal principles is formulated and developed by the courts
based on the significant legal concepts of the common law any lack of methods to
represent these legal principles constitutes another problem For example the common
law concept of tort consists of a breach by the defendant of a legal duty to take care not
to damage the plaintiff or his property and consequent damage from that breach Lord
Atkin in this leading case of Donoghue (or MrsquoAlister) v Stevenson held that while the
decided cases might each examine particular types of liability there must be a common
rationale He developed the argument that the decided cases had evolved to a general
principle which covered the immediate case In this case the applied principle was the
already existent neighbour principle which prescribed that you were to love your
neighbour This then became in law the prescription that you must not injure your
neighbour Lord Atkin then suggested a general test for when a duty is owed and the
lawyerrsquos question ldquoWho is my neighbourrdquo received a restricted reply ie you must
take reasonable care to avoid the acts or omission which you can reasonably foresee as
likely to injure your neighbourmdashwho then in law is my neighbour The answer
seemed to Lord Atkin to be persons who are so closely and directly affected by my act
that the actor ought reasonably to have them in contemplation as being so affected when
he was directing his mind to the acts or omissions which were called in question Thus
the legal duty was owed to persons whom one ought reasonably to have in mind as
being affected by onersquos particular behaviour70 The House of Lords in this case held
that manufacturers of products do have a duty to the ultimate consumer of their product
to take reasonable steps to prevent defects in its products which are likely to cause
damage to person or property The above reasoning established this as an important
case in the area of product liability In Lord Atkinrsquos approach we can note the common
70 This case is well-known as it sets out ldquothe circumstances under which a legal duty to take care will
ariserdquo (Shum 1992 p 205)
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 149
law spirit of stare decisis Lord Atkin did not ignore the precedents Instead he found
within them an underlying principle which he then applied In a sense Lord Atkin
looked backward before he moved the law forward to develop the legal concepts and
legal principles In translating such case law it is obvious that the underlying principles
are alien to Chinese but are a sine qua non for our current discussion of the culture of
the common law The legal translator thus faces the problem of finding a way to
represent such legal concepts and legal principles in Chinese
(2) Problems arising due to the differences between the syntactic arrangements word
order and language systems generally of English and Chinesemdashfor brevityrsquos sake
ldquolinguistic problemsrdquo71
Firstly frequent use of the passive voice is characteristic of the English common
law Voices are rather considered to have particular functions of their own than being
used for variation in the legal text The passive voice was sometimes viewed as
helping to convey the objectivity that law-makers seek to achieve ldquohellipthe passive of
the British formula renders the authority of the speaker more remote neutral and
abstract reducing the immediacyrdquo (Bowers 1989 p 28) In addition there are
instances where the passive is chosen for thematic reasons Also take the example in
sect13 of the translation of ordinance with the heading Apportionment of liability in
case of contributory negligence
Below is the English version
71 It is necessary to discuss linguistic problems since as we discussed in chapter 1 translation remains
linguistic transcoding Without a thorough understanding of the linguistic problems posed by the
differences between English and Chinese we cannot discuss the problem of cultural transfer properly
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 150
hellip a claim in respect of that damage shall not be defeated by reason of the fault of the person
suffering the damage but the damages recoverable in respect thereof shall be reduced to such
extent as the court thinks just and equitable having regard to the claimants share in the
responsibility for the damage (Amended LN 337 of 1989) (Cap 23 Sect 21)
The Chinese version reads as follows
hellip則就該損害提出的申索不得因受損害者有過失而敗訴但就該申索可追討的損害賠償
則必須減少而減少的程度是法院在顧及申索人對損害應分擔的責任後認為是公正與公
平的款額
Obviously the passive voice is employed above in order to foreground or thematize
ldquoclaimrdquo and ldquodamagesrdquo and these nouns take up subject position The legal translator
should consider whether it is appropriate to translate the English passive into Chinese
using sentences with ldquo被rdquo ldquo受rdquo or ldquo獲rdquo Therefore the Chinese translation follows
the English structure in conformity with the thematic emphasis by using the typical
topic-comment structure in Chinese
Secondly lengthy and complicated sentences are frequently used often
involving nominalization subordination and coordination all of them surface features
that help to make the common law seem so markedly complex72 Nominalization can
increase the inclusiveness of an expression but can also create a certain degree of
abstraction since the noun phrase may substitute for an entire subordinate clause As
72 A nominalization is a noun phrase that has a systematic correspondence with a clausal predication
which includes a head noun morphologically related to a corresponding verb
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 151
a result post-modification is largely used increasing the complexity73 The extensive
use of coordination and subordination structures in general leads to long and
complicated sentences in order to achieve the goal of inclusiveness precision and
clarity Consider the following sentences in Donoghue (or MrsquoAlister) v Stevenson
The liability for negligence whether you style it such or treat it as in other systems as a species of
culpa is no doubt based upon a general public sentiment of moral wrongdoing for which the
offender must pay
But acts or omissions which any moral code would censure cannot in a practical world be treated
so as to give a right to every person injured by them to demand relief
In the above two sentences the subjects ldquoliabilityrdquo and ldquoacts or omissionsrdquo are
followed with more or less elaborate post-modification ie the dependent clauses
introduced by ldquowhetherrdquo and ldquowhichrdquo respectively The legal translator needs to
understand the logical progression and legal reasoning underlying these complex
sentences when striving for semantic equivalence between English and Chinese
73 For varied forms of post-modification Crystal amp Davy suggest a four-fold division
a a preposition with a nominal group (ie a prepositional phrase) eg lsquothe defence of the free
worldrsquo
b a non-finite clause eg lsquothe diazo- and azo-compounds discussed aboversquo
c a dependent clause which may be introduced by a pronoun or simply attached directly to the
nominal it modifies eg lsquothe man I knowrsquo
d an adjective eg lsquo God the Father almightyrsquo (in Hiltunen 1989 p79)
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 152
612 Legal Translation as Cultural Transfer-- Two Levels of Transfer
In this section we will not only present a theoretical framework for analyzing
legal translation as cultural transfer but also provide principled methodologies for
legal translation especially for translating the common law into Chinese It has been
noted that legal translation as cultural transfer inevitably involves the linguistic and
conceptual adjustments of the translating language Translating the common law into
Chinese is thus a paradigm of cultural transfer as foreignization and necessitates the
importation of common law legal concepts and legal principles into Chinese How
exactly could common law culture be transferred into Chinese
Figure 61 which recalls the more general process diagram of Figure 32
illustrates the process of translating the common law into Chinese in order to achieve
the conceptual semantic equivalence noted in section 223 of chapter 2
ST (common law in English) TT (common law in Chinese)
ST is the
representa-
tion of SC
SC is
embedded
in ST
Text of the English
common law
(legislation and case
law)
Linguistic
transcoding
Text of the English
common law in
Chinese (legislation
and case law)
The missing link
between the
Chinese translation
and the culture of
the common law
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 153
SC (Culture of the common law) SC (Culture of the common law)
Figure 61 Process of Translating the Common Law into Chinese
The problem is one of cultural transfer Since section 4(1) of the Official
Languages Ordinance (Cap 5) provides that all ordinances shall subject to certain
exceptions be enacted and published in both official languages (ie English and
Chinese) Section 10B (1) prescribes the fundamental principle of equality between
the two language versions of Hong Kong laws It provides that both language texts of
an ordinance shall be equally authentic and that the ordinance shall be construed
accordingly This means the Chinese text is neither subordinate to nor a mere
translation of its English counterpart74 However such a stipulation of the ldquosection
alone is still not sufficient to make the Chinese text a meaningful representationrdquo (Sin
1998 p 205 the authorrsquos italics) As illustrated in figure 61 even though we conjure
up a Chinese text that translates the English common law (legislation or case law)
and use a range of techniques neologism borrowing etc to arrive at semantic
equivalence this still does not mean that the Chinese text is capable of as is the
English version representing the culture of the common law We still need to find out
how to in Sinrsquos (1998 p 195) words establish the ldquomissing link between language
74 BLIS website A paper Discussing Cases Where the Two Language Texts of an Enactment are
Alleged to Be Different
Culture of the
common law legal
concepts and legal
principles in Chinese
Culture of the
common law legal
concepts and legal
principles
Transference of
the legal culture
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 154
and lawrdquo mdashto be precise the missing link between the Chinese language and the
culture of common law In this connection Sin (1998) rightly points out
All large-scale cultural transfers begin in the absence of a readily usable language The first and
most natural response of the native culture is to make an attempt to naturalize the foreign
culture Where it has a close affinity to the native culture naturalization or minor adjustment
may be adequate But where it is one of great complexity or radically different the native
culture will find it necessary at some point to change and adjust its language so as to make it
suitable for assimilating it hellip In the absence of an established Chinese legal language translating
Hong Kong laws into Chinese without the benefits of naturalization and subject to enormous
constraints is in many ways tantamount to creating a new form of Chinese Special lexical and
syntactic devices were required to cope with the rich and highly technical vocabulary of the
Common Law as well as its distinctive mode of thinking (pp 136-37)
We can see that cultural transfer is first and foremost linguistic transfer As has been
shown in section 211 any translation necessarily involves transcoding on the
linguistic level Where no Chinese term exists to express common law concepts new
terms have to be created Sager also noted ldquoNew terms are regularly introduced into
the language either to fill a gap created by the introduction of a new concept or to
replace an existing less efficient termrdquo (1990 p 114) The Chinese language needs to
be adjusted to accommodate new concepts representing one level of cultural
transfermdashtransfer at the linguistic level However common law Chinese cannot
acquire its new meanings unless these are understood with reference to the English
common law To explain this point Cao (2004) remarks
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 155
It is a fact that when Common Law concepts are translated into Chinese very often new words
need to be created as such concepts do not exist in Chinese Even after the new linguistic terms
are brought into being in Chinese through translation their referential objects continue to be
found in English Common Law not Chinese law and need to be understood with reference to
Common Law hellip Legal concepts and their translations are relative relational and referential If
we see a legal concept as an idea a network of cross-referential sign-functions that is a
complex sign-system a translated legal concept can grow and expand its meanings and take on
meanings from two sign systems linguistically and culturally hellip We need to read a translated
legal concept with reference to the legal system it refers to not just in what language it is
re-presented (pp 172-73)
Cao rightly points out the principle of understanding the translated law after the initial
linguistic transfer since the culture behind it could only be identified in the English
common law instead of common law Chinese
Since the present study concerns itself not only with identifying such a linguistic
transfer but also justifying it we draw attention to the fact that such an adjustment is
more dramatic culturally than linguistically Regarding this Sin (1998) presents a
convincing argument
Before the Common Law integrates into the thought-world of the Chinese language the Chinese
text of Hong Kong law is as it stands a mere linguistic recoding of its English counter-parthellipIts
meaning is transparent only to those who have taken part in the process of translation but
opaque to uninitiated eyes Without the support of a legal culture the semantic link between
Chinese and the Common Law exists only between the two texts As has been noted in cultural
translation one cannot recode in one stroke a text and the culture behind it The culture has to be
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 156
developed hellip Yet the legal culture is in a very real sense already existing but embodied only in
English not in Chinese hellip Particularly it is there in the heads of Hong Kongrsquos bilingual
Lawyers who have the culture at their disposal hellip Culture always comes with the reader not the
text (p 138)
It may well seem difficult for the common Chinese language user to read cultural
meaning from the existing common law Chinese since the meaning of the common
law Chinese has to be construed against the English common law before the whole
conceptual system of the common law can be imported into the Chinese language By
pointing out that legal culture is critical to the understanding of common law Chinese
Sin highlights the significance of developing in Chinese the legal culture of the
common law Given that any legal culture resides within the competence and mastery
of legal professionals proficient in both Chinese and English one may ask how a
broadly analogous and comprehensible culture could be developed for the common
people As Sin noted that the meaning of common law Chinese is intelligible to the
legal translator who fully understands the process of translation providing the
justification of the linguistic transfer would be an effective way to tranfer the culture
which the reader has to read into the Common Law Chinese
As has been discussed in section 223 both Jakobson (1959) and Feyerabend
(1987) made clear the significance of metalinguistic operations in introducing cultural
concepts and establishing new languages in target language This applies especially to
legal translation since we can we not only formulate new languages but also
implement these languages by constructing new concepts of law In this sense the
legal translator is using metalanguage as the tool by which languages are established
in terms of other languages For example as indicated in section 422 Meijier (1950)
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 157
explained that Shenrsquos memorials were critical in understanding how and why the
foreign legal terms were translated In other words memorials as metalanguage are
vital for transmitting alien legal concepts into Chinese because they provide the
necessary theoretical framework and working principles It is now clear that apart
from linguistic transfer translation as cultural transfer is ultimately a conceptual
transfer at the metalinguistic level so that to give an account of cultural transfer in
legal translation is ultimately to give an account of how or why legal translators make
translational judgments corresponding to legal and cultural concepts Thus linguistic
transfer aiming to import the culture of the common law inevitably leads to the second
level of cultural transfermdashtransfer at the conceptual level
It is clear from the foregoing discussion that the theoretical framework for
cultural transfer in translating the common law into Chinese accommodates two levels
of transfer linguistic transfer ie transfer at the linguistic level which involves the
adjustment of Chinese language and conceptual transfer at the metalinguistic level
On this account Sin (1989 1993 1996) proposed the following general principles in
connection with translating the common law into the Chinese
(1) Fixing the semantic reference system
(2) Adjusting the target language
(3) Building metalinguistic devices to fill the conceptual gap
Cao (2004) echoes Sinrsquos first principle ldquoSuffice it to say that the Chinese translations of
common law concepts in Hong Kong need to be understood with reference to the common
law if the lsquotwo systemsrsquo are to remainrdquo (p 173) As for the second principle adjustment
on the linguistic level is a must The Chinese language has to be amplified to
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 158
accommodate new concepts Regarding the third principle there are several ways of
constructing a metalinguistic mechanism by which the ldquoconceptual gaprdquo (Joseph 1995
p34) could be bridged the ldquomissing linkrdquo (Sin 1998 p 195) could be reconnected and
the culture of the common law could be eventually transferred into Chinese
(1) Write commentaries or articles explaining why and how the translation was
done including explanatory remarks in the preface identifying the objective and
approach add footnotes in the translated work or appendannotations whenever
possible
(2) Translation of related legal works into Chinese
(3) Compiling English-Chinese legal dictionaries
Although the arduous labours of Hong Kongrsquos legal translators have succeeded
in translating a considerable body of common law terms into Chinese these are by
themselves far from sufficient to enable an understanding of the Common Law
concepts that they are supposed to convey The development of metalanguage fosters
the ability to treat language not just as a way of expressing meaning but as an object
of thought in its own right The justification of the translation in consequence can be
identified in the metalanguage where the cultural concepts are ultimately perceived
and transferred The reader once guided can turn to the metalanguage where the
usage of words in Chinese is modified and where the manner in which Common Law
concepts were translated into Chinese is explained As has been clear from our
foregoing discussion legal translation as cultural transfer takes place at two
levelsmdashlinguistic and conceptual In the next section we will analyze how these two
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 159
levels of transfers can be carried out presenting detailed analyses of selected
translations
62 Cultural Transfer in Translating the Common Law into Chinese -- Analysis
of Selected Translations
Thus far we have examined general problems in translating the common law into
Chinese and proposed the theoretical framework for viewing legal translation as cultural
transfer We have noted that transfer on the linguistic level requires adjustments of the
Chinese language thus establishing linguistic equivalents in Chinese for the source
language Such a conceptual semantic equivalence between the common law Chinese
and the original common law would eventually be achieved on the metalinguistic level
Metalanguage has proved to be effective device in transferring the culture of foreign laws
into Chinese As discussed in section 61 there are three major methods of constructing
the metalanguage for transferring the culture of the common law into Chinese In this
connection the proposed theoretical framework needs to be applied on two levels for a
thorough analysis of the cultural transfer involved 1) explain the linguistic transfer ie
adjustments of the Chinese legal language legal vocabulary in particular and 2) justify
the conceptual transfer at the metalinguistic level ie employment of metalinguistic
devices We will now explore such a two level transfer by analyzing selected translations
from the viewpoint of translated common law terminology
When translating an item of common law terminology into Chinese the legal
translator needs to conjure up a corresponding linguistic sign in Chinese which can
represent the same concept Since translation is much more than the substitution of lexical
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 160
and grammatical elements between two languages a problem arises from the very
beginning if the translator aims at finding the exact equivalent Where no such equivalent
exists the translator has to form (or redefine) a term to represent the original concept The
concept-formation process is what happens when ldquotranscodingrdquo the common law
terminology ie use Chinese to express common law concepts It has been noted that
linguistic adjustments representing a transfer on the linguistic level are indispensable for
concept-formation where there are no equivalents or only partial equivalents Chinese
legal vocabulary needs expanding and adjusting with common law concepts new to
Chinese being introduced in large numbers
Sager (1990) pointed out that the use of ldquolexical innovationrdquo including
neologisms to introduce new concepts (p 30) We can categorize the techniques
involved into two major kinds They are
(1) Lexical expansion (redefinition) by selecting an existent term in the target language
as the equivalent of the term in the source language a new definition is given to this
translating term which eventually results in the expansion of the lexical meaning
(2) Neologism a new word form may be created denoting the meaning of the
corresponding word in the SL There are several ways of coining new words in the TL
(a) Calque ie reproducing the morpheme structure of the SL lexical unit within the
means of the TL to create a new TL lexeme This approach is considered a species of
literal translation75
75 Cai Qilin (2002) points out that calque is the major technique used in translating Buddhist texts in
ancient China
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 161
(b) Paraphrase ie describing or rendering the meaning of a translated term which
has no counterpart in the TL76
(c ) Direct borrowing ie using transcription or transliteration where the TL lexicon
adopts the SL term
We will further discuss the use of above mentioned techniques and present various classes
of examples of translated common law terminology Some of these examples will also
show how the principles were adopted by the Bilingual Laws Advisory Committee77
when searching for appropriate linguistic equivalents for English legal terms As noted by
Jin amp Sin (2004) ldquoBLAC needs to scrutinize the translation by taking into account both
the legal concepts and linguistic rulesrdquo (p 90)78
(1) Translation of technical terms
For group onemdashtechnical terms which are unique to common law language and
culturemdashthe problem is that there is no Chinese equivalent What the translator has to
tackle is how best to conjure up Chinese equivalents for such technical terms given
always that such equivalents are likely to remain unreliable or speculative tools for
elucidating common law meanings or concepts
76 Also called ldquodescriptive paraphraserdquo by Šarčević (1997 p 252) 77 Under Section 4C (1) of the Official Languages (Amendment) Ordinance 1987 the independent
committee was established by the Governor on 28 October 1988 to scrutinize the translation of the
English legislation enacted before 1989 produced by the Law Drafting Division It is abbreviated as
BLAC 78 The original Chinese text is ldquo委員會審閱的內容既涉及法律概念也涉及語言規範rdquo
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 162
Valuable experiences drawn from the arduous work completed by the Hong Kong
translation team under LDD which completed the project of translating the English
common law into Chinese before 1997 reveal two possible major techniques
(a) Create new words in accordance with terminological creation principles
Forming a new term in English may involve techniques such as prefixing suffixing
and compounding As Chinese characters are pictographic they cannot be inflected as an
English word can but Chinese can form semantic representations by putting together two
or more existing linguistic forms to create a new term The principle means of word
formation is composition which has both advantages and disadvantages On the one hand
composition provides a convenient way of combining the meanings of two words to
express a new meaning Readers tend to derive the meaning of a new term which is
composed of two or more existing words simply by adding the meaning of the
components but without understanding the real meaning of the new term However when
coining new terms in Chinese composition remains a major tool Let us consider some
examples
Example 1 Chattels
The official translation for ldquochattelsrdquo is shichan (實產)79 In the common law
among the many terms relating to property chattels denotes the concept of personal
property contrasting with property relating to land The Chinese equivalent for chattels
needs to denote the concept of ldquohellip any kind of property which having regard either to 79 In Rule 27 of Chapter 6A the Chinese version for the expression ldquohellip and chattels in the possession
of the debtorrdquo is ldquo債務人所管有的hellip實產rdquo
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 163
the subject-matter or the quantity of interest therein is not freehold hellip in a more narrow
and more modern sense hellip means movable property or effects which belong personally to
the owner helliprdquo (Jowittrsquos Dictionary of English Law p 328)80
The BLAC first proposed to translate it as dongchan (動產) Later they found that
ldquo動產 as a Chinese legal concept was not an equivalent for lsquochattelrsquo embodied in the
legal concept behind the lsquoBills of Sale Ordinancersquohellip the Common Law concepts of
lsquopersonal propertyrsquo and lsquoreal propertyrsquo were not only alien to the Chinese legal concepts
it was also difficult to find their exact equivalents in the European legal system or
Canadian bilingual legislationrdquo (Minutes of the 3rd meeting of BLAC 17th September
1992 p 4) As shi (實) can be construed as shiwu (實物) ie an article or a thing thus
shichan (實產) can indicate the concept of chattels to some extent One may argue that
shi (實) can also mean shizaide 實在的 (concrete) if taken this sense real estate is also a
kind of property that is concrete ie shizaide (實在的) The Chinese equivalent cannot
pose a real contrast with real estate However it is already the best choice we have This
proves that a complete and precise understanding of the translated terminology requires
frequent reference to the common law semantic system
Example 2 Chose in action
The official translation for the term ldquochose in actionrdquo is jufa quanchan (據法權產)81
In the common law chose in action is a rather complicated and evolving concept relating
80 Further references to this dictionary will be made in the thesis and will be abbreviated as ldquoJowittrsquosrdquo 81 In Section 9 of Chapter 23 the Chinese version for the expression ldquohellip or other legal chose in actionrdquo
is ldquo或其他的法律據法權產rdquo
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 164
to property since it is a property right which can only be claimed or enforced by legal
action as distinguished from one which is enforceable by the taking of physical
possession
BLAC once considered using wuxin dongcha (無形動產) to translate this term
However they later found it unacceptable since ldquolsquochose in actionrsquo referred to property
derived from court it would be wrong to translate it as ldquo無形動產rdquo which referred to a
different conceptrdquo (Minutes of the 10th meeting of BLAC p 28) BLAC also proposed
quanwu (權物) or quanchan (權產) for ldquochoserdquo alone as it is a kind of personal property
and ldquotherefore lsquochose in actionrsquo will be translated as lsquo法據權物rsquo or lsquo法據權產rsquo and
lsquochose in possessionrsquo will be translated as lsquo實據權物rsquo or lsquo實據權產rdquo( Minutes of BLAC
Meeting Translation of the terms relating to property 1992)
However jufa quanchan (據法權產) was finally adopted as the equivalent for chose
in action Obviously jufa (據法) is a better expression than faju (法據) for it sounds more
natural and more compatible with the Chinese way of semantic expression Jufa (據法)
can be properly construed as gengju falu (根據法律) while faju (法據) sounds more
awkward Quanchan (權產) is better than quanwu (權物) since chose is considered as a
kind of personal property Therefore the translation for property should be consistently
chan (產) instead of wu (物) In Mainland China there are mainly two translations for this
term One translation is quanli dongchang (權利動產) which emphasizes that it is a kind
of quanli 權利 (right) relating to property (Xu 2004 p 296) The other translation is
sutiwu (诉体物) which sounds rather awkward and the emphasis is placed on the meaning
of susong 诉訟 (action) (Shi trans 1998) The official translation in Hong Kong is the
best of the three available since it effectively conveys the legal meaning of the English
term and seems more transparent to the readers
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 165
Example 3 Fee simple
The term ldquofee simplerdquo is translated as yongjiu chanquan (永久產權)82 In the
common law ldquofee simplerdquo describes the absolute title to land The term consists of two
words ldquofeerdquo and ldquosimplerdquo Fee means an estate of inheritance in real property while
simple means absolute or without limitation Thus fee simple is the largest recognized
estate in land a title without limitation or end The legal meaning of such a technical term
is clear Accordingly the Chinese equivalent of this term typically consists of two
existing Chinese words yongjiu (永久) and chanquan (產權) meaning permanent title to
real property The Chinese equivalent is easily understood One can see that this is
ownership which lasts forever but this in fact conveys only one essential part of the
meaning of fee simple The full and exact meaning resides in and must be retrieved from
the common law Fee simple is not only permanent ownership of indefinite duration but
something freely transferable and inheritable and is thus used to describe ldquoa freehold
estate of inheritance absolute and unqualified It stands at the head of estates as the
highest in dignity and the most ample in extentrdquo (Jowittrsquos p 779)
Example 4 Estoppel83
82 In Section 6 of Chapter 1014 the Chinese version for the sentence ldquohellip shall vest in the trustees in
fee simplerdquo is ldquo須以永久產權形式歸屬受託人rdquo 83 According to Jowittrsquos estoppel is ldquoa rule of evidence whereby a party is precluded from denying the
existence of some state of facts which he has previously asserted An action cannot be founded on an
estoppel hellip Unlike other evidence an estoppel must be pleaded An estoppel may be waivedrdquo (p 725)
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 166
The translation for the ldquoestoppelrdquo is burong fanhui fa (不容反悔法)84 Estoppel is a
very complex legal term dealing with the role of conscience and truth in a court
proceeding It ldquohellip is a principle of justice and of equity It comes to this when a man by
his words or conduct has led another to believe in a particular state of affairs he will not
be allowed to go back on it when it would be unjust or inequitable for him to do sordquo
(Denning MR p241)85 The doctrine of estoppel evolved over a period of one hundred
years to become a general principle in the common law
The Chinese translation of this technical term is phrasal in form and combines the
meanings ldquonot permittedrdquo (burong 不容)ldquodenyrdquo (fanhui 反悔) and ldquorulerdquo (fa 法)86 We
can partly understand the meaning of this newly created Chinese term from its form
However we still need to resort to the common law to understand it fully87 In Mainland
China there are several different translations for this term such as jinzhi fangong (禁止翻
供)jinzhi fanhui (禁止反悔)bude fouren (不得否认) (Shen 1993 p 65)jinzhi
fanyan(禁止反言) (Li 1988 p 596) and jin fanyan (禁反言) (Yang 1997 p 124) By 84 In Section 98 of Chapter 528 the Chinese version for the expression ldquolaw of estoppelrdquo is ldquo不容反悔
法rdquo 85 Denning MR in Moorgate Mercantile Co Ltd v Twitchings [1976] 1 QB 225 CA at p241 86 Susie Dent (2004) a language expert has an observation about the coined words The
extraordinary thing about new words is that probably only about one percent of them are new Most are
old words revived and adapted (p 8) Thus Semantic change of an old word namely specialisation
generalisation and metaphorical change of a word is a common way of coining new words 87 Stroundrsquos Judicial Words and Phrases also gives an interpretation of the term
Estoppel is a complex legal notion involving a combination of several essential
elementsmdashstatement to be acted upon action on the faith of it resulting detriment to the actor
Estoppel is often described as a rule of evidence as indeed it may be so described But the
whole concept is more correctly viewed as a substantive rule of law hellip Estoppel is different
from contract both in its nature and consequences But the relationship between the parties
must also be such that the imputed truth of the statement is a necessary step in the constitution
of the cause of action But the whole case of estoppel fails if the statement is not sufficiently
clear and unqualified (p 943)
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 167
comparison the official translation in Hong Kong is better since it conveys the legal
meaning of the English term more precisely emphasizing that estoppel is an important
legal principle in the common law
We can see that compound terms are essential in creating Chinese equivalents for the
technical terms Sager (1990) laid out the principles for such term creation88 However
he also acknowledged that the communicative dimension of term creation should be
considered relatively less important Perfect communication could never be achieved as it
required that ldquohellip the recipientrsquos state of knowledge after reception of the text corresponds
exactly to the senderrsquos intention in originating the messagerdquo (Sager 1990 p 100) In the
present case the target readers could be both legal specialists and ordinary people and
their knowledge of the law might differ greatly It is not possible for translators to take the
knowledge scope of all their readers into consideration To assume that a Chinese
translation can ever be produced which will be fully understood by Chinese native
speakers is entirely fallacious since the English common law is opaque for most English
native speakers To transfer the cultural meaning of common law terminology will always
requires conceptual adjustments of the translating language ie Chinese
(b) Adopting an existing word and assigning a new meaning to it89 88 Sager (1990) pointed out that ldquothe International Organization for Standardization (ISO) has for many
years been concerned with providing guidance on the creation of terms hellip ISO document ISOR 704
(Naming Principles)rdquo (pp 88-89) Sagerrsquos highly idealistic requirements include ldquoThe term must relate
directly to the concept the term must be lexically systematic hellip there should be no synonyms
whether absolute relative or apparent hellip terms should not have homonyms hellip be monosemicrdquo (pp
89-90) 89 The English lexicographer Susie Dent (2004) observes of coined words The extraordinary thing
about new words is that probably only about one percent of them are new Most are old words revived
and adapted (p 8) Thus semantic change of an old word namely specialization generalization and
metaphorical change is a common means of coining ldquonewrdquo words
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 168
Creating a new word may not always be the best way of translating terms of art in
the common law In some circumstances lexical expansion (redefinition) is another
option Examples include plaintiff (yuangao ren 原告人) defendant (beigao ren 被告人)
petitioner (chengqing ren 呈請人) respondent (dabian ren 答辯人)90 The legal translator
adopts the existing Chinese legal terms as the translations for the above three technical
terms in the common law However we should be aware that as Chinese equivalents for
common law terms they have different connotations under different legal systems
(2) Translation of semi-technical terms
Semi-technical terms ldquoare much more numerous and their number is constantly
growing as the law changes to meet the developing needs of a societyrdquo (Alcaraz amp
Hughes 2002 p 17) Moreover their semantic meanings are much more complicated
thus constantly setting traps for the translator and creating a labyrinth of semantic
connotation ambiguity partial synonymy and context-dependence A number of such
legal terms may not have a fixed legal meaning in the source text as they will carry
different and specific legal meanings in differing contexts these meanings being
90 BLAC came to a final decision after a number of meetings It once had the following list showing
the proposed Chinese translations for ldquodefendantrdquo ldquoespondentrdquo etc
Existing translation LDDrsquos
Proposal
1 Plaintiff 原告人 原告人
2 Defendant 被告人 答辯人
3 Respondent 答辯人 應訴人
4 Petitioner 入稟人 入稟人
5 Accused 被告 被告
(Minutes of the 22nd meeting of BLAC p 7)
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 169
determined either by the definitions given within the context or by knowledge imported
from common legal practice When translating most of such terms there is no need to
deliberately create new equivalent terms in Chinese since most of them already have
Chinese equivalents for their ordinary meanings As such terms can be further divided
into three sub-categories a variety of translation methods will be discussed
(a) For the first typemdashwhere the legal meaning of the term is shared with its core
meaning the established Chinese equivalent will be adopted However we need to
refer to metalinguistic devices to redefine the meaning in a common law context The
following examples illustrate the nature of the problem
Example 1 Abandonment
Since this term has several legal meanings in the common law one of the official
translations for the term is fangqi (放棄)91 The core meaning of the term is to leave
completely to give up or withdraw One of its legal meanings is shared with its core
meaning ie ldquothe relinquishment of an interest or claimrdquo (Jowittrsquos p 3) So it could
be the ldquoabandonment of a vessel by the crewrdquo ldquothe surrender of a child to an adopted
parentrdquo or an abandonment of possession a right an undertaking or a contract
(Strouds Judicial Dictionary of Words and Phrases p 4)92 In all the above contexts
the existent Chinese term fangqi (放棄) is adopted to convey the said legal meanings
Example 2 Attempt
91 The heading Section 6 of Chapter 221G is ldquoabandonment of applicationrdquo and the Chinese version
reads ldquo申請的放棄rdquo 92 Further references to this dictionary will be made in the thesis and will be abbreviated as ldquoStroudrsquosrdquo
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 170
The official translation for ldquoattemptrdquo is qitu (企圖) The legal meaning of the term is
shared with its core meaningmdashto make an effort at something However as a common
law offence the term attempt is a rather complex legal concept and has been used in a
technical way Attempt ldquois an offence to do any act which is a step not being a merely
preparatory one towards the commission of an offencerdquo (Roebuck 1995 p 73)93 Thus
the legal intention or intent is an essential constituent of the offence of attempt to commit
a crime BLAC once proposed to borrow weixu zui (未遂罪) as used in Mainland China
and Taiwan as the translation However it later found that the concept behind weixu zui
ldquo未遂罪rdquo did not coincide exactly with that of ldquoattemptrdquo in the common law So after
rounds of discussions it finally adopted the existing Chinese term expecting that legal
experts or readers would turn to the numerous case laws to interpret the Chinese
equivalent of the term (Minutes of 10th meeting of BLAC p 12)94
Example 3 Confession
The official translation for ldquoconfessionrdquo is gongren(供認)95 The act of telling or
making known something that is seen as wrong or damaging to oneself is the core
meaning of the term In its legal usage it refers to telling the crime one has committed
93 It is ldquoan endeavour to commit a crime or unlawful act the doing of some offence an act done with
intent to commit a crime and forming part of a series of acts which would constitute its actual
commission if it were not interruptedrdquo (Jowittrsquos p 115) 94 Roebuck (1996) used the Chinese equivalent weixu zui (未遂罪) in the book Digest of Hong Kong
Criminal Law (p 39) However in the Index and Glossary of the book attempt was translated as qitu
zui (企圖罪)
95 In Section 51 of Chapter 227 the Chinese version for the expression ldquothe confession of the
defendant rdquo is ldquo被告人的供認rdquo
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 171
which can be admitted as evidence96 While gongren (供認) is capable of conveying the
termrsquos fundamental concept it should always be construed with reference to its common
law legal context This involves noting inter alia that ldquoIn civil procedure a confession is
a formal admission In criminal law a confession is an admission of guilt made either
judicially that is in the course of a judicial proceeding or not Judicial confession may
operate as an estoppel and if plenary is sufficient to found a conviction as where a
prisoner pleads guilty An extrajudicial confession never operates as an estoppelrdquo
(Jowittrsquos p 415)
Example 4 Negligence
The term ldquonegligencerdquo is officially translated as shuhu (疏忽)97 The core
meaning of the term is failure to act with the prudence In the common law
ldquonegligence is not just a state of mind but rather the failure to meet an objective
standard of behaviour the standard of conduct expected of a reasonable person helliprdquo
(Roebuck 1995 p 20) Since part of the termrsquos legal meaning overlaps with its
ordinary meaning the ordinary Chinese equivalent was adopted as its legal equivalent
In the common law the term ldquonegligencerdquo is a rather complex legal concept in the
law of tort The concept of negligence is central to the tort system of liability The
negligence concept centres on the principle that every individual should exercise a
96 Stroudrsquos gives interpretation for the term ldquoconfessionhellipis an admission the words of which
considered objectively and in their context expressly or substantially or inferentially admit guilt
(Anandagoda v R [1962] 1 WLR 817)rdquo (p 547) 97 In Chapter 71 the Chinese version for the expression ldquonegligence or other breach of dutyrdquo is ldquo疏忽
或其他不履行責任rdquo
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 172
minimum degree of ordinary care so as not to cause harm to others98 Thus duty of
care breach of the duty causality and injury are four essential elements of the offence
of negligence There is a long list of judicial interpretations for this term running to 21
entries in Stroudrsquos Again the legal concept of negligence could only be properly
construed against the semantic referential scheme of the common law
Example 5 Public Place
The term ldquopublic placerdquo is translated into gongzhong defang or gongzhong
changsuo (公眾地方公眾場所) which at first glance seems the same as the termrsquos
ordinary meaning in Chinese However a close examination would show that the
legal meaning of the term is not exactly the same since ldquothis expression occurs in
many Acts of Parliament which declare such and such a thing to be an offence if done
in a lsquopublic placersquo In each case the meaning depends upon the context and upon the
object of a statute A place may be a public place at one time and not at other timesrdquo
(Jowittrsquos p 1461) Strouds also has 21 entries for case law definitions and the Hong
Kong Ordinances also contained their own definitions99 The legal meaning of the
98 The term negligence has ldquotwo meanings in the law of tort it may mean either a mental element
which is to be inferred from one of the modes in which some torts may be committed or it may mean
an independent tort which consists of breach of a legal duty to take care which results in damage
undesired by the defendant to the plaintiff rdquo (Jowittrsquos p 1227) 99 Section 3 Interpretation of words and expressions of Chapter 1 INTERPRETATION AND
GENERAL CLAUSES ORDINANCE in the Hong Kong Ordinances stipulates
public place (公眾地方公眾埸所) means-
(a) any public street or pier or any public garden and
(b) any theatre place of public entertainment of any kind or other place of general resort
admission to which is obtained by payment or to which the public have or are permitted to have
access
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 173
term is thus heavily context-dependent100 It should be noted that translation of such a
semi-technical term usually needs much research on the part of the legal translator
including an examination of its different common law contexts
(b) For the second typemdashwhere part of the legal meaning of the term overlaps with its
core meaningmdashwe can once again use the ordinary Chinese equivalent plus lexical
expansion or we can create a new term The legal meaning of these terms can be
inferred from various interpretations of cases Therefore frequent reference to the
cases is a better way to understand meanings in different contexts Examples include
the following
Example 1 Discharge
The two main entries for ldquodischargerdquo in the official translations are jiechu or jieyue
(解除 or 解約) In its ordinary usage the core meaning of discharge is to relieve of
obligation responsibility etc In its legal usage meanings differ with different contexts
and part of the legal meaning overlaps with the ordinary meaning When used in the sense
of ldquoto discharge a right or obligationrdquo101 or to be ldquofreed from hellip debts provable in the
100 Roebuck (1995) also pointed out the different interpretation of the term in different contexts in the
Hong Kong case laws
The phrase lsquopublic or a section of the publicrsquo was discussed in Wong Pik-har [1987] HKLR 373
private premises may also be a public place A shop is a public place while it is open Ng
Chun-yip [1985] HKLR 427 Similarly the corridor of a domestic building is at all times a
public place hellip In Lam Shing-chow CA 18385 it was held that a common corridor on the
twelfth floor of a private building was not a public place because neither the public nor a section
of the public were permitted access to it (pp 164170) 101 For example in section 33 of Chapter 29 ldquoa good dischargerdquo is translated as ldquo充分的責任解除rdquo
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 174
bankruptcyrdquo (Jowittrsquos pp619-20)102 the existing Chinese equivalent jiechu (解除) was
adopted When used in the law of contract a discharge of contract means that the contract
is no longer binding Therefore another Chinese term jieyue(解約)103 was adopted to
express this concept
Example 2 Malice
The term ldquomalicerdquo is officially translated as eyi (惡意)104 When used as an ordinary
term malice means desire to cause pain injury or distress to another However this term
as applied to the common law does not necessarily mean that which must proceed from a
spiteful malignant or revengeful disposition but a wrongful act injurious to another The
Chinese equivalent eyi (惡意) also means spiteful mind but should be construed with
reference to its common law meaning105 We will further analyze in this section the
translation of malice in the context of translating the case law into Chinese to show the
significance of building a metalanguage and developing the semantic referential system of
the common law in Chinese
Example 3 Remainder
102 For example in section 30 of Chapter 401 ldquodischarge from bankruptcyrdquo is translated as ldquo解除債
務rdquo 103 For example in section 18 of Chapter 23 ldquodate of dischargerdquo is translated as ldquo解約日期rdquo 104 In Section 51 of Chapter 221 the Chinese version for the expression ldquostands mute of malicerdquo is ldquo出
於惡意而保持緘默rdquo 105 According to Jowittrsquos malice is ldquoa formed design of doing mischief to another technically called
militia praecogitata or malice prepense or aforethought hellip malice in common acceptance means
ill-will against a person but in its legal sense it means a wrongful act done intentionally without just
cause or excuserdquo (p 1136)
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 175
The official translation for the term ldquoremainderrdquo is shengyu quanyi (剩餘權益)
When used as an ordinary term remainder means something that remains or is left In its
legal usage remainder means the interest in land or property owned by a person who
enjoys no benefit from the property now but expects to come into possession in due
course of time and the term is thus used in rather technically in the law of property
Therefore a new compound term shengyu quanyi (剩餘權益) was created to express
this concept The term is obviously composed of two Chinese terms shengyu (剩餘
remaining) and quanyi (權益 interest)
(c) The third typemdashwhere the legal meaning of the term totally deviates from its ordinary
meaningmdashcan be treated in the same way as terms of the first type ie terms of art or
legal terms having a technical meaning The two major approaches are the creation of
a new term or the adoption of existing term with redefinition
Example 1 Abandonment
The other official translation for the term as used in the expression ldquonotice of
abandonmentrdquo is weifu tongzhi (委付通知)106 This legal meaning is totally different
from the core meaning It should be thus noted that ldquo the word lsquoabandonrsquo is one in
ordinary and common use and it in its natural sense well understood but there is not
a word in the English language used in a more highly artificial and technical sense
that the word lsquoabandonrsquo in reference to constructive total loss it is defined to be a
cession or transfer of the ship from the owner to the underwriter and of all his
property and interest in it with all the claims that may arise from its ownership and
all the profits that may arise from it including the fright then being earned (per Martin 106 We can find the term in Section 57 of Chapter 329 Marine Insurance Ordinance
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 176
B Rankin v Potter 42 LJCP 169 at p 200)rdquo (Stroudrsquos p 3) Therefore a new
Chinese term was created as the equivalent for this term in order to convey effectively
the common law legal concept
Example 2 Personal Representative
The official translation for the term ldquopersonal representativerdquo is yichan daili ren
(遺產代理人) The ordinary meaning of the term is a person who manages the affairs
of another In its legal usage it means ldquoexecutors and administrators whether acting
with regard to personal property or with regard to real propertyrdquo (Jowittrsquos p 1356)
This legal meaning deviates from the termrsquos ordinary meaning and a new Chinese
term was coined to express the concept instead of using its equivalent in Chinese as
ordinary term ie geren daibiao (個人代表)107
Example 3 Warranty
The two official translations of ldquowarrantyrdquo baozheng (保證) and baozheng tiaokuan
(保證條款) capture two different legal meanings The core meaning of the term is a
guarantee or assurance One of its legal meanings overlaps with the core meaning and is
thus translated as baozheng (保證)108 The other legal meaning is ldquoa subsidiary term in a
contract as distinct from a vital term which is called conditionrdquo (Jowittrsquos p 2979)109
107 Stroudrsquos interpretation of this term reads ldquothis phrase (except when otherwise controlled by a
context) is synonymous with legal representativerdquo (p 2014) 108 The heading Section 33 of Chapter 329 is ldquoNature of warrantyrdquo and the Chinese version reads ldquo保
證的性質rdquo 109 Section 2 of Chapter 26 gives the interpretation of the term ldquowarrantyrdquo
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 177
Thus in the law of contract warranty is different from condition since a breach of
condition justifies the termination of the contract while a breach of warranty does not110
This legal meaning deviates from the termrsquos core meaning and is thus officially translated
into baozheng tiaokuan (保證條款) which is a newly created compound term in Chinese
One might well think that baozheng tiaokuan (保證條款) has a close connection with
baozheng (保證) but as a matter of fact they express two different common law concepts
Another suggested translation is ciyao tianjian (次要條件) which is also a testimony to
the value of neologism and may convey the legal meaning of warranty against condition
more precisely111 In this case the creation of a new term would seem a better choice
Thus far we have illustrated the process of translating common law terminology
where adjustments of the Chinese legal vocabulary on the linguistic level and frequent
reference to the semantic referential system of the common law are both indispensable
It will be remembered that in section 61 of this chapter we have already provided a
summary of the metalinguistic tools that could be employed by the legal translator on
ldquowarranty (保證條款) means an agreement with reference to goods which are the subject of a contract
of sale but collateral to the main purpose of such contract the breach of which gives rise to a claim for
damages but not to a right to reject the goods and treat the contract as repudiated
(Amended 59 of 1989 s 20) 110 Lord Denning in Oscar Chess Ltd v Williams [1957] 1WLR 370 111 Zhao (1995) also discusses the translations of condition and warranty She remarks
In Chinese legal terminology we have zhuyao tiaokuan (主要條款 major terms) and ciyao
tiaokuan (次要條款 subordinate terms) But the Chinese contract law does not take the same
approach as Common Law to distinguish between terms in order to determine remedies hellip It
is submitted that the better choice will be the use of functional equivalents zhuyao tiaokuan
(主要條) and ciyao tiaokuan (次要條款) to express ldquoconditionrdquo and ldquowarrantyrdquo Both Chinese
terms can achieve the desired legal effects (pp 300-01)
Functional equivalence is not a good choice for translating the common law into Chinese since it
will result in confusion between the legal terms used in different legal systems
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 178
the conceptual level to effect cultural transfer Let us scrutinize these methods of
constructing a metalinguistic mechanism
(1) Appending translatorrsquos preface or footnote or any other commentaries or
explaining why and how the translation was done in related articles
The classic example here is the ldquoMemorialsrdquo in which Shen Jiaben expounded the
translated concepts of foreign laws already referred to in section 422 Especially
where the translation of Hong Kong Ordinances is concerned we find that legal
translators strive to spell out explanatory remarks identifying the translation objective
and approach and explain why and how the translation was done in related articles
The Bilingual Laws Information System (BLIS) is a valuable database of laws of
Hong Kong providing both English and Chinese versions of the current laws of Hong
Kong a glossary and other useful information which testifies to the impressive
translation project completed by the former Legal Department under the supervision
of the Bilingual Laws Advisory Committee (BLAC)112 The minutes of BLAC
meetings also serve as important metalanguage explaining how and why the
translations are made as shown by our discussions above Another method which is
particularly important is the translatorrsquos notes which he adds to the translated text to 112 Thus the Law Drafting Division of the Department of Justice as the statutory body of translating
the Common Law into Chinese has created as its flagship product the BLIS (Bilingual Laws
Information System) one of the largest ever legal databases and a valuable metalinguistic tool With its
many products including a CD-ROM English-Chinese Glossary of legal terms published in 1995 and a
Chinese-English Glossary of Legal Terms published in December 1999 the Law Drafting Division of
the Department of Justice has made very significant efforts to enhance the learning of common law
terminology and promote the Chinese semantic referential system of the common law It also writes
articles on bilingual legal issues for the well received magazine Hong Kong Lawyer
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 179
give some specifications or provide further information Necessary knowledge of the
context can be given more effectively through explanations in the text or in footnotes
But in translating the common law legislation this format may not prove practical If
we look at the current English Ordinances of Hong Kong we find that Chapter One
Interpretation and General Clauses Ordinance provides overall guidance on how to
interpret the Chinese equivalent for the English terminology with reference to the
common law context Every chapter also has a section headed ldquoInterpretationrdquo which
gives the proper construction of some English terms used in the ordinance
supplemented with their Chinese equivalents This is a significant step providing a
conceptual link between English terms and their Chinese equivalents and in fact
serves much the same function s a translatorrsquos note If we look at the ldquoDiscussion
Paper on the Laws in Chineserdquo prepared by the Attorney Generalrsquos Chambers of Hong
Kong we find there a statement concerning the use of metalanguage ldquothe
Interpretation and General Clauses Ordinance should be amended hellip to deal with the
problem of a discrepancy between the meaning of the English text of a law containing
an expression of the Common Law and the Chinese text using an expression which is
not one of the Common Lawrdquo Also the methodologies employed in the process of
establishing well-formed Chinese equivalents for common law terminology have been
clearly set out by the Law Drafting Division of the Department of Justice in a number
of articles in Hong Kong Lawyer the official journal of the Law Society of Hong
Kong113 113 An article provided by The Law Drafting Division of the Department of Justice examines the need
for the gradual development of standard Chinese terms to explain Common Law and statutory concepts
An extract reads
When selecting the Chinese term we must consider the lsquoadequacyrsquo and lsquoacceptabilityrsquo of the
term hellip Usually semantic mapping is used for legal translation There are two ways of semantic
mapping One is to employ an existing Chinese term to represent a Common Law concept The
other is to coin a new Chinese legal term by combining existing morphemes Bilingualism in the
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 180
(2) Translation of related legal works into Chinese
The following legal works have already been translated into Chinese (a) reports
of Chinese cases in the Hong Kong Law Reports and Digest and Hong Kong Cases (b)
important cases provided by the Judiciary and some law reports have been published
in both English and Chinese versions (c) Hong Kong Lawyer as the official
magazine of the Law Society of Hong Kong carries a section which provides the
Chinese translations of key legal phrases taken from judgments (d) several law
digests have been published including Chinese Digest of Hong Kong Contract
Law(1995) Chinese Digest of the Criminal Law of Hong Kong (1996)Chinese Digest
of the Criminal Procedure Law of Hong Kong (1996) and Chinese Digest of the
Common Law of Hong Kong114 In addition to the above works it is also desirable to
translate specialized Common Law dictionaries into Chinese such as A Dictionary of
Modern Legal Usage115 Strouds Judicial Dictionary of Words and Phrases and
compile books focusing on the legal concepts of Common Law such as Digest of Case
Law Principles
Common Law necessarily involves the use of Chinese A collection of Chinese Common Law
terms that are stable and clear will assist greatly in the development of bilingualism in the
Common Law For this purpose if there is standardisation of the translation of Common Law
concepts these concepts will be matched more readily with their Chinese equivalents This is
beneficial for the lsquorootingrsquo of the Common Law in the Chinese language and provides standard
Chinese references for Common Law concepts hellip Standardisation of the translations will
expedite the absorption of Common Law concepts by the Chinese language Standardisation of
translations for Common Law concepts is also beneficial for judicial interpretationhellip
Nevertheless a translation produced with due regard to all these factors will be much more
concerned with lsquoadequacyrsquo and may lack lsquoacceptabilityrsquo as it presently stands (in ldquoThe Common
Law and the Chinese Languagerdquo Hong Kong Lawyer February 1999) 114 This is a project conducted by Roebuck Derek and King-kui Sin 115 In its first edition A Dictionary of Modern Legal Usage became a classic in its field The first
comprehensive guide to legal style and usage it filled a gap in reference literature by giving practical
advice on how to write clear jargon-free legal prose
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 181
(3) Compiling an English-Chinese legal dictionary
Another efficient way to build the semantic referential system for the Chinese
equivalents of common law terms is to compile a dictionary with commentary We
have demonstrated that the basic requirement in translating terminology is to achieve
semantic equivalence However semantic equivalence alone is not enough since
meanings can often only be worked out when terms are considered in context and
when the cultural concept of terms is properly transferred Such contextual knowledge
can be supplied by amplifications in the translated text (footnotes) or separately in
appendices (glossaries) Adequate cross-referencing of entries thus seems an ideal
metalinguistic tool to establish a common law semantic reference system116 The
Hong Kong English-Chinese Legal Dictionary (2005) published by Butterworth is a
good recent example of its kind
To illustrate the two levels of cultural transfer and further justify the conceptual
transfer at the metalinguistic level further analysis of selected translations will be
furnished The foregoing discussion shows where new terms are created in Chinese
their meaning may seem transparent and can be easily identified Yet the reader still
needs to resort to metalanguage to understand the concepts of the newly-created terms
In translating semi-technical terms legal translators often employ lexical expansion
using an existing Chinese term to express the new common law concept This makes
it difficult for the reader to determine whether the term is common law Chinese or
116 Trsquosou amp Kwok (2003) also point out the immaturity of English-Chinese dictionaries in Hong Kong
There are many comprehensive English dictionaries of law (eg Garner 1999) but standard
references for legal Chinese in Hong Kong have not matured to the same level Most of them
exist in the form of a glossary with only very crude definitions if any (eg Department of
Justice 1998 Department of Justice 1999 Li amp Poon 2000) (p 612)
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 182
ordinary Chinese In such a case it is even more important to resort to metalanguage
as a mirror for cultural transfer at the conceptual level
The analysis of translated legal terms serves as the paradigm of cultural transfer
at the lexical level Discussions of translated legislative texts and judgments would
further illustrate the operation of cultural transfer In addition translation of the
judgments itself is of vital importance to construct the metalanguage since judgments
are not only important because they settle specific disputes and contain solutions to
legal problems but also because they have shaped much of the culture of the law ie
legal concepts and legal principles We shall take the example of translations of the
term ldquomalicerdquo in the legislation and case law as a simplified case to illustrate cultural
transfer on the textual level We will analyze how the legal concepts and legal
principles relating to ldquomalicerdquo are developed in the case law117
117 Poon (2005) points out that BLAC used to refer to the case law in defining the Common Law terms
She also uses the example of ldquomalicerdquo defined thus
In law an act is malicious if done intentionally without just cause or excuse (per Bayley J
Bromage v Prosser 4B amp C 255)
1 ldquoMaliciouslyrdquo means and implies an intention to carry out an act which is wrongful to the
detriment of another (Mogul Co v McGregor[1892] AC 25 (HL))
2 The word ldquomalicerdquo refers not to intention but to motive (R v Tolson (1889) 23 QBD 168)
3 Where any person wilfully carries out an act injurious to another without lawful excuse he
does it maliciously (per Lord Blackburn R v Pembliton (1874) LR 2 CCR 119)
4 Where a person has a malicious intent against another and in carrying it out injures a third
person he is guilty of malice against the person he has injured (per Coleridge v Latimer 17
QBD 359)
5 ldquoMaliciouslyrdquo in S 16 Offences Against the Person Act 1861 means ldquowilfully or intentionally
and without lawful excuserdquo (R v Mowatt [1968] 1 QB421)
6 For a person to be guilty of ldquomalicious woundingrdquo mere recklessness is not enough (W (A
Minor) v Dolbcy [1983] Crim LR681) (p 319)
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 183
Example 11 (legislation)
In an action for a libel contained in any newspaper it shall be competent to the defendant to set up
as a defence that the libel was inserted in the newspaper without actual malice and without gross
negligence hellip (Cap4 Sect 21)
The official translation is as follows
在因任何報刊刊載的永久形式誹謗而進行的訴訟中被告人有權提出在該報刊刊登的永久形
式誹謗並不含實際惡意亦無嚴重疏忽hellip(第 4 章 第 21 條)
We see that ldquomalicerdquo is translated as eyi (惡意) which is also an ordinary Chinese
term Evidently the legal translator has employed the technique of lexical expansion to
give it new meaning On the linguistic level the common law term ldquomalicerdquo has been
successfully encoded as eyi (惡意) in Chinese and we can appropriately say that eyi
(惡意) is the semantic equivalent of ldquomalicerdquo Now let us see how translations of the
excerpted case law transfer the legal culture at the metalinguistic level By translating
the excerpted judgments the concept of ldquoactual malicerdquo in the common law and
related legal principles especially in defamation cases can be transferred into
Chinese
Example 12 (judgment)
There are two sorts of malice malice in fact and malice in law the former denoting an act done
from ill-will towards an individual the latter a wrongful act intentionally done without just cause
or excuse118
118 Bayley J in Bromage v Prosser
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 184
Translation by the author is as follows
惡意分兩種事實惡意與法律上的惡意前者指對他人出自的惡意行為後者是蓄意的錯誤
作為且沒有確當的原因或辯解
Example 13 (judgment)
Express or actual malice is ill will or spite towards the plaintiff or any indirect or improper
motive in the defendants mind which is his sole or dominant motive for publishing the words
complained of
Translation by the author is as follows
顯明惡意或實際惡意是在被告的思想中對原告存有或非直接的不恰當的動機且此動機
為被告在發佈他所被控的言辭時獨有或主要動機
Example 14 (judgment)
Malice could also be established by inference if the court was satisfied that the defendant did not
believe what she said was true or she knew or believed that the defamatory statements were
false119
Translation by the author is as follows
惡意可被推定建立如法庭信納被告不相信她自己所說的是事實或她知道或相信誹謗的陳述
是假的
119 HO PING KWONG V CHAN CORDELIA [1989] 2 HKC 415
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 185
Example 21 (legislation)
Where a person kills another in the course or furtherance of some other offence the killing shall
not amount to murder unless done with the same malice aforethought (express or implied) as is
required for a killing to amount to murder when not done in the course or furtherance of another
offence (Cap339 Sect 2)
The official translation is as follows
(1) 凡殺人行為並非在犯其他罪行的過程中或為了進行其他罪行而作出而該殺人行為
必須具備某種(不論是明示或默示的)的預懷惡意(下稱ldquo前述預懷惡意rdquo)方足以構成謀
殺罪則任何人如在犯其他罪行的過程中或為了進行其他罪行而殺死他人其殺人
行為除非具備與前述預懷惡意相同的預懷惡意否則不構成謀殺罪(第 339 章 第 2
條)
When faced with such a legislative text the legal translator must delve into the
cultural concepts of the specified legislation in order to produce a Chinese legal text
with the same meaning The ordinance belongs to an important branch of the
Common Lawmdashthe criminal law and deals with one offence in criminal law murder
The doctrine presumes malice aforethought on the basis of the commission of a felony
inherently dangerous to human life Now let us look at how the concept of ldquomalice
aforethoughtrdquo is defined in the case law120
120 Roebuck (1995) also explained malice aforethought (express or implied) in his Hong Kong
Criminal Law which provided the Chinese translation of the judicial interpretations lt杀人罪條例gt第 2 條第(1) 款提到ldquo明示的或默示的rdquo 惡意預謀明示的惡意指殺人的故
意默示的惡意指重傷的故意[見常威強 Tsang Wai-keung(1973)]HKLR 159 一案 (p 84)
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 186
Example 22 (judgment)
There is no doubt that murder is killing with malice aforethought and there is no doubt that
neither the word malice nor the word aforethought is to be construed in any ordinary sense
The whole phrase is to be interpreted according to principles that have been laid down in
decided cases Next it is clear that there is malice aforethought if a person kills with intent to kill
or do grievous bodily harm see R v Vickers121
Translation by the author is as follows
毫無疑問謀殺就是ldquo有預懷惡意的rdquo 殺人且毫無疑問的是ldquo惡意rdquo 一詞與ldquo預懷rdquo 一詞都不
可用它們平常的意思來理解這個詞組應按照先例中定下的法律原則來解釋其次很明
顯凡有人意圖殺人或嚴重傷人必有預懷惡意存在
Example 23 (judgment)
We are not here concerned with the meaning of malice in the Common Law definition of murder
still less with its meaning in relation to the law of libel and slander where indirect motive is of
importance There is no case other than R v Syme and R v Johnson (with which we will presently
deal) in which it has ever been suggested that indirect motive has anything to do with the
meaning of the word maliciously in Acts creating criminal offences122
Translation by the author is as follows
在此我們並不是要討論在惡意一詞在普通法謀殺罪定義中的意思更不是要討論它在誹謗
法中的意思在這兩者中非直接的動機佔有重要位置 沒有其他案例能象在 R v Syme
121 All England Law Reports1973Volume 3 R v Hyam - [1973] 3 All ER 842 122 All England Law Reports1969Volume 3 R v Solanke - [1969] 3 All ER 1383
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 187
和 R v Johnson 案件中(這是我們目前審理的案件)非直接的動機與ldquo惡意地rdquo 一詞在法例
中構成刑事罪行的意思更為相關
We can observe that the common law standard of malice generally required the
tort law to support an award of punitive damages In the law of slander we can see
that malice is one of the elements of liability and the plaintiff may meet a case of
privilege thus made out on the part of the defendant by proving actual malice that is
actual intent to cause the damage complained of In dealing with the criminal law an
act malicious in common speech means that harm to another person was intended to
come of it and that such harm was desired for its own sake as an end in itself
Therefore as discussed in section 61 legal translation as cultural transfer takes place
at two levelsmdashlinguistic level and conceptual level When translating the term
ldquomalicerdquo in the legislation the legal translator produces the Chinese equivalent for the
term on the linguistic level by adjusting the translating language Metalinguistic
devices should be built in order to transfer all the cultural elements behind this legal
term into Chinese One effective method is to translate the judgments related to the
legal concept under review The above translations of excerpted legislation and
judgments serve as a simple example of the type of work needed to establish the
metalanguage of the common law in Chinese
Using study of cultural transfer in legal translation in this thesis as its basis a
more comprehensive examination of the translation of legislation and judgments
relating to legal terminology could be an interesting field of further research This
might include the translation of legislation and judgments relating to legal
terminologies studied previously such as abandonment fee simple chose in action
chattel confession and warranty to name a few To conclude transfer of the culture
of the common law into Chinese requires adjustments on both the linguistic and
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 188
conceptual level in particular the building of metalinguistic tools in Chinese until the
whole semantic reference system of common law Chinese is eventually laid bare
Chapter 7
Concluding Remarks
We began this study by reflecting on the notion of cultural transfer in translation theory
As noted in the introductory chapter translation theorists expended much effort in developing
theories centering on linguistic transcoding especially on linguistic equivalence The
characterization of translation as cultural transfer is an outcome of the cultural turn in
translation theory
We have particularly in section 21 noted that the notion of cultural transfer when
employed to characterize translation as a socio-cultural activity as opposed to a mere act of
linguistic transcoding can be understood in two diametrically opposite senses On the one
hand it is taken to mean the mapping of cultural elements of the source text onto their
equivalents in the culture of the target text On the other hand it is taken to mean the
importation of the source culture into the target culture which necessitates linguistic and
conceptual adjustments of the translating language Understood this way translation as
cultural transfer requires that a choice be made between the two basic translation strategies
ie domestication and foreignization The cultural concepts of the source language may be
either domesticated in order to facilitate cross-cultural communication or foreignized by
making both linguistic and conceptual adjustments of the target language As has been
pointed out in section 22 translation as cultural transfer is no longer a matter of finding
linguistic equivalents between languages but rather an operation of creating conceptual
semantic equivalence on the metalinguistic level Thus understood foreignization is simply a
metalinguistic operation whereby cultural transfer is effected
CONCLUDING REMARKS 190
The clarified notion of cultural transfer is vital for understanding legal translation as
cultural transfer both in respect of its theoretical foundations and practical applications In
section 22 we noted that when translating a legal text for the purpose of producing another
authentic version of the same text the legal translator is bound to foreignize the language of
the latter version to a certain extent in order to establish semantic equivalence between the
two versions Translation of the common law into Chinese thus serves as a paradigm of
cultural transfer in legal translation
That being the case our understanding of legal culture must be carefully reconditioned
by its practical reference to the common law and account for the evidence of its transference
in the legal text itself As analyzed in section 31 the very notion of legal culture has been
understood in previous studies either as peoplersquos conceptions of law or the combination of
peoplersquos conceptions and practices of law However it is not possible for the legal translator
to deal with legal culture in the sense of the practices and behaviors by legal professionals as
the final encounter of the legal translator is the legal text which embodies peoples conception
of law The aspect of legal culture which informs and underpins legal translation is the
conceptual thinking shared by legal professionals We argued in section 33 that the common
law is a deep-rooted historically molded conceptual thinking shared by legal professionals
Its legal culture is mainly reflected in two aspects legal concepts and legal principles We
also investigated in section 34 the legal culture of traditional and modern Chinese law
showing that borrowing from other legal systems and transfer of foreign laws into China has
shaped the modern Chinese law
In our analysis in section 41 of the transfer of legal culture we classified legal
transplant into two kinds legal imposition at the socio-political level and legal translation at
the socio-linguistic level On the one hand a fairly wholesale transplantation of legal system
CONCLUDING REMARKS 191
is possible for socio-political reasons even without any translation of the imported law into
the indigenous language On the other hand it is often through legal translation that foreign
laws are introduced to the indigenous people at the socio-linguistic level Compared with
legal imposition legal translation is a more fruitful way of legal transplant and cultural
transfer as is evident from Chinarsquos long history of legal translation It has also been shown in
our analysis of the memorials prepared by legal translators that the successful transfer of a
legal culture always requires the adjustments of the translating language by means of
metalinguistic devices
As this study is both a theoretical inquiry and a case study chapter 5 examined the
specific features of the common law language in which the legal concepts and legal principles
are embodied We argued that differences between the Chinese language and common law
English should not be emphasized at the expense of the translatability of the common law
legislation into Chinese Legislative translation is no doubt a limiting case of translation For
it is mandated by law that its different language texts must convey the same legal meaning so
as to regulate the same social behaviour among the people it governs If this condition cannot
be satisfied if it can be shown that equivalence in meaning is in principle unattainable then
not only will legislative translation become a futile endeavour but the foundation of all
multilingual legal systems will also collapse
To show how semantic equivalence is possible in legislative translation we proposed in
section 61 a theoretical framework for effecting cultural transfer at two different levels One
is linguistic transfer ie transfer at the linguistic level which involves the adjustments of the
Chinese language and the other is conceptual transfer at the metalinguistic level We then
carried out a detailed analysis of selected translations The focus is placed on the analysis of
the translation of common law terminology We made clear in section 62 how the two levels
CONCLUDING REMARKS 192
of transfer take place Not only should the legal translator produce the Chinese equivalents on
the linguistic level by adjusting the Chinese language but with the use of metalanguage
heshe transfers the cultural concepts into Chinese and establishes the semantic reference
system for common law Chinese ie a special domain of the Chinese language developed
for incorporating the common law
Basing our views on the works of legal and translation scholars in Hong Kong we have
shown in this study that equivalence in meaning indeed does not exist between languages as
they stand This has led many to dismiss the whole notion as illusory However equivalence
in meaning is by nature not a descriptive term Rather it is a stipulative term That is to say
two terms are equivalent in meaning if and only if they are stipulated to be so Equivalence in
meaning is established by the metalinguistic device of definition It is created not found In
the case of legislative translation this metalinguistic device operates on the legislative level
ie as part of the legislative process In other words in legislative translation equivalence in
meaning between the different language texts of the law is established by legislation not
through translation on the object-language level
Translation is of course not merely a matter of language Many things are involved in
the process Nevertheless however complicated the process is translation is invariably a
process beginning with a text and ending with another textmdashit is always from language to
language always a cross-linguistic event Whether we call this transcoding or recoding
translation remains essentially an operation with words Even when one follows cultural
theorists such as Vermeer and Snell-Hornby and re-labels translation a cross-cultural event
what we see in the end-product ie the target text remains a matter of words The
dichotomy between translation as transcoding and translation as cultural transfer is as has
CONCLUDING REMARKS 193
been shown in this study totally misguided There can be no cultural transfer without
transcoding as culture is for the most part embodied in language
As with translating Buddhist scriptures into Chinese translating the common law into
Chinese is a paradigm case of cultural transfer But again legal culture is illusory unless and
until it is embodied in language We have shown that the culture of the common law covers
the whole conceptual framework and socio-cultural background whereby the various
components of the common law are understood Part of that culture manifests itself in the
mere form of words and has to be preserved by following the same form of words in the
translation In such cases translating words is at the same time translating culture The
dichotomy between word and sense on the one hand and between word and culture simply
breaks down here But a large part of the culture of the common law can only be found
beyond the words of the law That part like equivalence in meaning cannot be handled by
translation on the same object-language level It must be handled either at the metalinguistic
level or in a separate object-level translation Once we have a clear view of how language
works and how it can be used to do what we want it to do many of the problems in
translation studies can be clarified and resolved
If this study can help clarify some of the fundamental problems concerning the notion of
translation as cultural transfer it will have achieved its intended skopos
Bibliography
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195
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196
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198
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amp Maxwell
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199
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Managing Global Transitions 4(3) 231-247
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development Hong Kong New York Oxford University Press
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201
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principles and procedures involved in Bible translating Leiden E J Brill
Nida E A (1975) Exploring semantic structures Wilhelm Frink Verlag
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202
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203
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Philadelphia John Benjamin Publishing Company
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204
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205
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206
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207
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Watson A (2001a) Legal transplants and European private law Electronic Journal
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Watson B (1998 April) Have our English language documents passed their
lsquouse-byrsquo date Hong Kong Lawyer 1998 23
Wesley-smith P (1993) The common law of England in the Special Administrative
Region In R Wack (Ed) Hong Kong China and 1997 essays in legal theory
(pp5-40) Hong Kong Hong Kong University Press
Wesley-smith P (1994) The sources of Hong Kong law Hong Kong Hong Kong
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White JB (1990) Justice as translationmdashAn essay in cultural and legal criticism
The University of Chicago Press
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Cross-Cultural Application of Blackrsquos Theory of Law A Bell and Howell
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Wong H M (1999 November) The myth of legal bilingualism in Hong Kong Hong
Kong Lawyer 31-32
208
Chinese Works
蔡奇林 (2002) lt六群比丘」與「六眾苾芻」 - 兼談佛典仿譯及其對漢語的影
響gt 「漢文佛典語言學國際學術研討會」論文 佛學研究中心學報 2004
年第 9 期台北市 台灣大學文學院佛學研究中心
httpccbsntuedutwFULLTEXTcfb_cbsj-2htm
何勤華等編著 (1994) 中西法律文化通論 復旦大學出版社
江必新 (2003) 中國法文化的淵源與流變 北京市 法律出版社
金聖華冼景炬 (2004) 香港法律中譯的幾個問題 翻譯學報 2004 年第九期
香港 香港中文大學翻譯系
梁治平主編 (1994) 法律的文化解釋 生活`讀書`新知三聯書店
劉作翔 (1999) 法律文化理論 北京商務印書館
沈達明編著 (1993) 英美合同法引論 北京對外貿易教育出版社
楊楨 (1997) 英美契約法論 北京北京大學出版社
周長齡 (1997) 法律的起源 北京中國人民公安大學出版社
張德美 (2003) 晚清法律移植研究 北京清華大學出版社
張晉藩 (1992) 清律研究 北京法律出版社
趙秉志主編 (1996) 香港刑法 北京 北京大學出版社
張中秋 (2003) 比較視野中的法律文化 北京市 法律出版社
iv
Acknowledgments
Research is a journey of exploration Writing this dissertation has been a
challenging intellectual journey accompanied by moments of frustration
disorientation and even self-doubt One person my supervisor Dr Sin King-kui has
guided me through the twists and turns of this journey But for his patience mentoring
and encouragement I could not have completed this dissertation nor could I have
appreciated both the rigours and the joys of true scholarship He has my deepest
gratitude
I must also thank Dr Zhu Chun-shen and Dr Cheng Po-suen of my Qualifying
Panel for their valuable comments on the draft of the dissertation as well as their
unfailing support throughout my candidacy I should like too to thank the friendly
staff of the General Office of the Department who have given me enormous clerical
support in the course of my research
My thanks also go to my colleagues in the Department of Translation The
Chinese University of Hong Kong for their kind concern during the progress of my
research and their warm words of encouragement
I would like to extend a special note of thanks to my teachers in the Department
of Foreign Languages and Literature Fudan University for introducing me to the
beauties and intricacies of translation In particular I would like to thank Prof Huang
Yong-min Prof Lu Gu-sun Prof Xiong Xue-liang and Prof He Gang-qiang for
helping and encouraging me in my pursuit of further translation studies
v
I am also grateful to my fellow students and dear friends Kiki Baby Ace Sarah
Samantha Joyce Beatrice Xiao Hu Zhang Wan-min Wu Qing Shen Yuan Jiang
Qin Wen Stella Edison April Wu Xiao Sting and Lois for sharing the pains and
joys of my study
Finally I owe more than I can say to my husband Alex my sister Ciecely and
other family members for their love and unfailing support I thank my parents from
the bottom of my heart for their faith in me and for the love and support that enabled
me to embark on an academic career It is to them both that I dedicate this humble
piece of work
vi
TABLE OF CONTENTS
Title Page i
Abstract ii
Acknowledgments iv
PART I
Theoretical Framework and Historical Background
Chapter 1 Introduction 1
11 Translation Theory From Interlingual Translation to Intercultural
Translation 1
12 The Emergence of Cultural Transfer in Translation Theory 4
13 Legal Translation Theory In Search of Goal and Strategy 8
14 Rationale for the Study 12
Chapter 2 Translation as Cultural Transfer 14
21 Clarification of the Notion of Cultural Transfer 14
211 Cultural Transfer vs Transcoding 14
212 Vermeerrsquos View of Translation as Cross-cultural Transfer 24
213 Snell-Hornbyrsquos View of Translation as Cultural Transfer 28
214 Domestication vs Foreignization 35
vii
22 Legal Translation as Cultural Transfer 40
221 Legal Transplant and Legal Translation 40
222Translating the Common Law into Chinese as Cultural Transfer 46
223 Metalinguistic Devices and Cultural Transfer in Legal Translation 51
Chapter 3 The Concept of Legal Culture in Legal Translation 57
31 Previous Studies of Legal Culture 57
311 Law and Culture 57
312 Legal Culture as Conceptions of Law 62
313 Legal Culture as Both Conceptions and Practices of Law 66
32 Clarification of the Concept of Legal Culture 69
33 The Legal Culture of the Common Law 73
34 The Legal Culture of Traditional and Modern Chinese Law 77
Chapter 4 The Transfer of Legal Culture 89
41 Legal Transplant and Transfer of Legal Culture 89
411 Introduction 89
412 Legal Transplant Legal Imposition and Legal Translation 92
42 Transfer of the Legal Culture of Foreign Laws in China 98
421 Transplant of Foreign Laws since Late Qing Dynasty in China 98
422 Transfer of the Legal Culture of Foreign Laws in China 103
viii
PART II
Case Study of the Translation of the Common Law
into Chinese in Hong Kong
Chapter 5 The Language of the Common Law 106
51 The Translatability of the Common Law 106
52 Legal Terminology and Legal Concepts 112
53 The Language of the Legislative Texts and Bilingual Legislation 120
54 Case Law Languagemdashthe Language of Judges 133
Chapter 6 Cultural Transfer in Translating the Common Law into Chinese
61 Transfer of the Legal Culture of the Common Law 142
611 Problems in Translating the Common Law into Chinese 142
612 Legal Translation as Cultural TransfermdashTwo Levels of Transfer 152
62 Cultural Transfer in Translating the Common Law into Chinese
-- Analysis of Selected Translations 159
Chapter 7 Concluding Remarks 189
Bibliography 194
Chapter 1
Introduction
11 Translation Theory From Interlingual Translation to Intercultural
Translation
Traditionally regarded as a sub-field of linguistics translation was for a long
time treated as an important means of interlingual communication As Jakobson (1959)
put it ldquotranslation properrdquo was the transposition of a text from one language to
another ldquointerlingual translationrdquo as he called it ldquoinvolves two equivalent messages
in two different codesrdquo However he conceded that there was no full equivalence
between code units (1959 p 233) Jakobsonrsquos view was shared by theorists like
Catford and Nida who emphasized transference of meaning across languages and the
resultant linguistic equivalence Fidelity to the original text was considered the most
important principle governing translation and the search for best equivalence became
its primary goal Translation studies in this period stressed the textual elements
Catford for instance emphasized the correspondence of lexicon and grammar (1965)
Nida and Taber classified ldquoformal correspondencerdquo and ldquodynamic equivalence as two
major types of equivalence ldquoFormal correspondencerdquo is concerned with the message
itself and ldquodynamic equivalencerdquo with the effect (1964 1982) They acknowledged
that there were not always formal equivalents between language pairs Focusing on
the language function and relating linguistic features to the context of both the source
and target text House (1977) set out his notions of semantic equivalence and
pragmatic equivalence and proposed that the function of a text be determined by the
situational elements of the source text A more elaborate discussion of the notion of
INTRODUCTION 2
equivalence can be found in Baker (1992) who examined the notion of equivalence at
four different levels in relation to the translation process ie the word level the
grammatical level the textual level and the pragmatic level Taken together these
levels encompass all aspects of translation process
While characterizing translation as an interlingual rather than a socio-cultural
activity scholars such as Catford and Nida did not lose sight of the role that cultural
elements play in the process of translating Catford drew a distinction between
ldquocultural untranslatabilityrdquo and ldquolinguistic untranslatabilityrdquo (1964 pp101-03) Nida
examined cultural problems in translating (1981) Newmark (1988) in particular
examined untranslatable culturally specific items and put them into different
categories (p 95) However he rejected the ldquoprinciple of equivalencerdquo underlying
Nidarsquos theory of dynamic equivalence and suggested two approaches to translation
namely communicative translation which aims to produce on the target reader effects
similar to those on the source reader and semantic translation which aims to render
ldquoas closely as possible the semantic and syntactic structures of the second languagerdquo
(1988 pp 39-41) The former gives priority to the response of the target language
reader while the latter foregrounds the meaning of the original The appropriateness of
these two methods depends on the text-type and the purpose of the translation
The cultural dimension is central to both the polysystem theory of Zohar (1990)
and Touryrsquos (1980) descriptive approach The polysystem theory treats any semiotic
(poly)system (such as language or literature) as a component of a larger (poly)system
or culture Translated literature is therefore a system operating as a part of larger
social cultural and historical systems of the target culture The correlations between
literature and other cultural systems for instance language society or ideology could
INTRODUCTION 3
be seen as a functional relationship within a cultural whole By employing the notion
of norm in his treatment of translation criticism Toury (1980) pointed us in a new
direction for translation studies As he sees it translation criticism consists in the
study of metatexts produced in a given receiving culture under certain discernible
socio-cultural constraints Translation criticism therefore performs the task of
reconstructing such constraints as are operative in a particular translation It sets out to
identify constraints of translation behaviour describe the decision-making process the
translator has gone through and formulate hypotheses capable of being tested by
further studies Touryrsquos idea can be said to have inspired the ldquocultural turnrdquo in
translation studies in the 1990s
It was around this time too that translation theory began to undergo a rather
radical transformation Translation was increasingly seen as involving a conscious act
of manipulation that moved the author toward the reader and made texts as palatable
in the target language and culture as they were in the source language and culture The
ideals of equivalence and faithfulness were now being seriously questioned The
cultural turn in translation studies shifted away from purely linguistic analysis
redefining translation as intercultural communication and focusing on the
socio-cultural and ideological dimensions of translating For Lefevere (1992)
translation was essentially rewriting and manipulation He remarked
On every level of the translation process it can be shown that if linguistic considerations enter
into conflict with considerations of an ideological and or poetological nature the latter tend to
win out (p 9)
INTRODUCTION 4
Another cultural theorist Venuti (1995) who drew a distinction between
domestication and foreignization also insisted that translation must take into account
the value-driven nature of the socio-cultural framework within which it is carried out
Culture and cultural elements are no longer seen as impediments to successful
linguistic transfer Rather culture is an encompassing framework within which
effective translation operates The cultural turn widens the scope of translation by
revealing that the translator not only works with the language pair in question ie the
source text and the target text but also with the two cultures ie the source culture
and the target culture Translation is now considered a purposive activity The
outcome or product of translation is understood in a wider context and the factors
affecting the translatorrsquos decision making process are given special emphasis
12 The Emergence of Cultural Transfer in Translation Theory
The characterization of translation as cultural transfer is an outcome of the trend
mentioned in section 11 According to Vermeerrsquos (1996) skopos theory translation is
a cross-cultural transfer a form of human interaction determined by its purpose or
ldquoskoposrdquo Following Vermeer Snell-Hornby (1988) denounced linguistic transfer as
inadequate contending that translation should instead be seen as a cross-cultural event
Translation as cultural transfer has become a dominant view resulting from the
ldquocultural turnrdquo in translation theory and a ldquoshift of emphasisrdquo from ldquoformalist phaserdquo
to ldquobroader issues of context history and conventionrdquo (Bassnett 1998 p 123)1
1 Back in 1990 Bassnett and Venuti observed that major changes in translation studies had taken place
They remarked
INTRODUCTION 5
Hatim (2001) also labelled this ldquoinfluential trend in recent translation studiesrdquo as ldquothe
cultural modelrdquo an approach contrary to the linguistic model which dominated early
translation studies in the last century (p 44) Snell-Hornby (2006) described the
ldquocultural turn of the1980srdquo as the trend driven by the theoretical impetus from various
sources such as descriptive translation studies skopos theory and deconstructionism
(p 47)2
Snell-Hornby (1988) first employed the term ldquocross-cultural transferrdquo in
subscribing to Vermeerrsquos view that translation was not the trans-coding of words or
sentences between languages but a ldquocross-cultural transferrdquo (p 46) She argued that
in traditional linguistic oriented theory ldquothe text was then seen as a linear sequence of
units and translation was merely a trans-coding process involving the substitution of a
sequence of equivalent unitsrdquo and that the equivalence-centred studies carried out by
Jacobson Nida and Catford were crippled by the very concept of equivalence (pp
16-19) She contended that the pursuit of equivalence was an incurable illusion based
on the false presumption of absolute symmetry between languages and was thus a
distortion of the fundamental problems in translation Her denunciation of equivalence
was best represented by the following remarks
The object of study has been redefined what is studied is the text embedded in its network of
both source and target cultural signs and in the way Translation Studies has been able to utilize
the linguistic approach and to move out beyond it (p 12) 2 Toury (2007) noted the influence of cultural studies in translation He remarked
The last decade has been marked by the foregrounding of cultural concerns in all the sciences of
man including the ones interested in language and language behavior This development has
already brought along substantial changes in the way phenomena lsquoin the world of our
experiencersquo are approached which students of translation were among the first to applaud - and
adopt There were even colleagues who nicknamed the 1980s the era of rsquocultural turnrsquo in
Translation Studies (eg Bassnett and Venuti 1990) even though it is not always all that clear
what this term was meant to cover (p 1)
INTRODUCTION 6
In this study the view is also taken that equivalence is unsuitable as a basic concept in translation
theory the term equivalence (the authorrsquos italics) apart from being imprecise and ill-defined
(even after a heated debate of over twenty years) presents an illusion of symmetry between
languages which hardly exists beyond the level of vague approximations and which distorts the
basic problems of translation (1988 p 22)
In explaining the nature of translation she noted that ldquolanguage is not seen as an
isolated phenomenon suspended in a vacuum but as an integral part of culturerdquo (p
39)3 Apart from the definition given by Goodenough and Gohring Snell-Hornby
also subscribed to Vermeerrsquos concept of culture in translation She remarked
This new definition correlates with the concept of culture now prevalent in translation theory
particularly in the writings of Vermeer hellip and is the one adopted in this study hellip the concept of
culture as a totality of knowledge proficiency and perception is fundamental in our approach to
translation If language is an integral part of culture the translator needs not only proficiency in
two languages he must also be at home in two cultures In other words he must be bilingual and
bicultural (cf Vermeer 1986) (1988 pp 40 42)
According to Snell-Hornby Vermeer was among the first to argue that the linguistic
approach was far from adequate for understanding the nature of translation and that
3 Commenting on the definition provided by American ethnologist Ward H Goodenough and German
scholar Heinz Gohring Snell-Hornby(1988) remarked
There are three important points common to both definitions quoted above but which are
especially prominent in Gohringrsquos German adaptation firstly the concept of culture as a totality
of knowledge proficiency and perception secondly its immediate connection with behaviours
(or action) and events and thirdly its dependence on norms whether those social behaviours or
those accepted in language usage (p 40)
INTRODUCTION 7
translation was first and foremost a cross-cultural transfer In this regard Vermeer
remarked
Translation is not the trans-coding of words or sentences from one language to another but a
complex form of action whereby someone provides information on a text (source language
material) in a new situation and under changed functional cultural and linguistic conditions
preserving formal aspects as closely as possible (Snell-Hornby 1990 p 82)
Rather than giving emphasis to the equivalence of linguistic units such as words
or sentences Vermeer began to view translation as a complicated action in a broader
socio-cultural context In his skopos theory translation is a form of human interaction
determined by its ldquoskoposrdquo or purpose Following in the footsteps of Vermeer
Snell-Hornby took a cultural approach abandoning linguistic equivalence as the goal
of translation She held that the translatorrsquos cultural knowledge proficiency and
perception underpinned not only his ability to ldquoproduce the target text but also his
understanding of the source textrdquo (p 42) In other words understanding of the cultural
elements of both the SL and TL was a pre-requisite in translation However she did
not explain how translation could take place between cultures without taking
linguistic equivalence into consideration
The notion of cultural transfer has been given different and even conflicting
interpretations in the literature and the range of empirical facts judged to be relevant
to the study of cultural transfer varies from theory to theory In addition any study of
translation must deal with the language pair in question and translation is always a
verbal representation of the source text In the next chapter we will scrutinize the
notion of cultural transfer and examine the questions at issue
INTRODUCTION 8
13 Legal Translation Theory In Search of Goal and Strategy
In traditional translation theory legal texts were regarded as a species of LSP
text and their translation was accordingly treated as a kind of technical translation In
recent translation theory a change in perspective has occurred along with the
emergence of approaches centered on cultural and communicative factors described in
section 11 The translation of legal texts has increasingly been regarded as a
communicative act no longer a mere operation on the technical linguistic elements to
achieve verbal and grammatical parallelism as well as equivalence in legal meaning
Moreover the translator is no longer considered a passive mediator but rather an
intercultural operator whose choices are increasingly recipient-oriented and based not
only on strictly linguistic criteria but also on extra-linguistic considerationsmdashfirst and
foremost the function of the translated text in the target culture In this section we
will look at studies in legal translation with respect to its goal and strategy
Wilss (1982) observed that at the outset of translation studies it was generally
agreed that the goal of all translation was to achieve equivalence by producing the
closest possible equivalent text In normal practice the legal translator was expected
to produce a strictly literal translation to retain the elements of the original texts The
basic unit of translation was still the word Basic changes in syntax were permitted so
as to respect the grammatical rules of the target language
Approaching legal translation from the perspective of communication Sager
(1997) held that recent translation theory had taken into consideration cultural
differences between the source and target languages as well as the purpose of the
translated text He also noted that the concept of equivalence had been modified to
INTRODUCTION 9
text-type equivalence as opposed to textual equivalence Rejecting the static view of
linguistic equivalence and characterizing translation ldquoas one possible step in a
communication process between two culturesrdquo Sager proposed an approach to
translation based on communication theory with a view to ldquoredefining the relationship
between source and target textrdquo (pp 26 27) The translator was considered as an
information mediator who needed to identify the writerrsquos intention the readerrsquos
expectation the text-type in question and possible ways to reconstruct them In
relation to translation strategy he also pointed out that the traditional concept of
translation which aimed to preserve both content and intention applied only in the
case of translation of a letter or a technical instruction from one language to another
Sagerrsquos communicative approach represents a shift of focus from source text to target
text and frees the legal translator from the rigid grip of linguistic equivalence
However Sager did not explain how the legal translator could reconcile the writerrsquos
intention with the readerrsquos expectations and in what ways the goals of translation of
legal language as a special text-type differed from goals in translating other text-types
Functionalists who focus their attention on the concepts of skopos and
target-orientedness no longer take the source text as the only standard for assessing a
translation Instead translation is now assessed on the basis of its adequacy for the
communicative purpose within the target culture (Vermeer 1984 Nord 1991 1997)
As for the applicability of this approach to legal translation functionalists have
claimed that their theory is comprehensive and applicable to all text-types in all
situations (Vermeer 1982 p 99) But doubts have been raised as to whether the
functional approach could be validly applied to LSP texts and in particular to legal
texts (Trosborg 1997) The main objections are centred on the typical
recipient-orientedness of the functional approach which seems inappropriate for legal
INTRODUCTION 10
language which is governed by rigorous rules of interpretation In response to such
objections Šarčević (1997) argued that legal translation should no longer be regarded
as a process of linguistic trans-coding but an act of communication in the mechanism
of law (p 55) She criticized scholars who focus their attention primarily on language
and the linguistic elements of the text for ignoring the fact that legal translation was
also receiver-oriented and that legal communication could be effective only if
interaction was achieved between text producers and receivers (pp 55-56) She thus
redefined the goal of legal translation as the production of a text with the same
meaning and effect as the original text with special emphasis on effect The translator
should also preserve the unity of a single instrument by striving to produce a text that
would be interpreted and applied by the courts in the same manner as the other
parallel texts of that instrument particularly the original (p 72) In order to achieve
this goal a thorough understanding of the legal cultures in which the translation
ultimately functions is a must as translation problems emerge as a result of different
legal histories and cultures Legal translators could only overcome the problems posed
by different legal cultures with a clear knowledge of the fundamental differences
between legal systems For Šarčević understanding the legal cultures of ST and TT is
vital for legal translation Like functionalists she attaches a great deal of importance
to the communicative function of legal translation However she does not explain
how the legal translator could simultaneously achieve the same meaning and the same
effect as the source text
Taking the view that legal texts form a specific genre with their own unique
linguistic framework and generic knowledge text typology as recently developed has
positive implications for the goal and theoretical methodologies of legal translation
Trosborg (1997) held that distinguishing between political texts legal texts and other
INTRODUCTION 11
text-types was of great significance as they required different translation approaches
Defining genre analysis as ldquothe study of situated linguistic behavior in
institutionalized academic or professional settingsrdquo Bhatia (1997) adopted a
genre-based approach to translation He noted two crucial characteristics of genre
analysis One is that genre analysis is not ldquoan extension of linguistic formalismrdquo in the
sense that it examines the use of language to achieve the communicative purpose
rather than linguistic equivalence The second is that genre theory explores ldquoall
aspects of socio-cognitive knowledge situated in disciplinary cultures in order to
analyze construction interpretation and use of linguistic communication to achieve
non-linguistic goalsrdquo (p 205) Therefore the genre-based approach to legal translation
is by nature a pragmatic study of the use and effect of language within a particular
legal culture For Bhatia the goal of legal translation must include the ldquoaccessibility
of the target text for a specific audiencerdquo and he therefore advocated the method of
easification ldquoa process of making a text-genre more accessible to an intended
readership without sacrificing its generic integrityrdquo (p 209) He held that this
genre-based approach to the teaching and learning of translation had the advantage of
encouraging the learner He remarked
hellip this awareness of participation in the ownership of the genres of legal culture is what Swales
(1990) calls raising rhetorical consciousness in the learner (or translator) (p 212)
Accordingly cultural awareness is a pre-requisite for the legal translator While
Bhatiarsquos approach to legal translation is genre-based his emphasis on legal culture is
similar to Šarčevićrsquos view He also held that the goals of legal translation should
include the readability of the target text
INTRODUCTION 12
We can see from the discussion above that legal translation has been
approached from three different perspectives There has been a shift from producing
the closest possible equivalent text to producing a text with the same meaning and
effect as the other parallel text(s) a shift of focus in translation theory from fidelity to
the source text to the readability of the target text and a shift from the merits of
interlingual equivalence to the demands of cross-cultural communication Awareness
of the differences between the cultures of different legal systems is of paramount
importance in legal translation In the next chapter we will re-examine the goal of
legal translation and show in the light of a clarified notion of cultural transfer that
cultural transfer as domestication is not appropriate for the kind of legal translation
which aims to produce an authentic version of the law
14 Rationale for the Study
The rationale for the present study is twofold Firstly cultural transfer is
arguably the most discussed but least understood concept in recent translation
theory In the absence of a clear notion of what this concept means it is difficult to
arrive at a judicious understanding of the nature of translation Secondly legal
translation in particular legislative translation as carried out in Hong Kong can serve
as an exemplary case study for understanding the multi-faceted problems relating to
the concept of cultural transfer As will be shown cultural transfer in Snell-Hornbyrsquos
sense ie domestication at the cultural level is totally inappropriate for legal
translation The question we have to address is what does ldquocultural transferrdquo mean in
legal translation and how is it effected
INTRODUCTION 13
The translation of the English legislation enacted before 1987 into Chinese in
Hong Kong was clearly a mammoth legal project4 While this was completed before
the handover of the sovereignty of Hong Kong to the Peoplersquos Republic of China on 1
July 1997 a good part of the common law including case law has yet to be translated
or represented in one form or another in Chinese It is hoped that the theoretical
inquiry into cultural transfer in legal translation undertaken by the present thesis can
provide some insights into the future development of bilingual legislation in Hong
Kong
4 English had been the language of the law since Hong Kong became a British colony in 1842 and
remained so until Section 4 of the Official Language Ordinance as amended in 1987 stipulated that
ldquo[a]ll Ordinances shall be enacted and published in both official languagesrdquo The Interpretation and
General Clauses Ordinance as amended in 1987 defined ldquoofficial languagerdquo as ldquothe English language
and the Chinese languagerdquo
Chapter 2
Translation as Cultural Transfer
21 Clarification of the Notion of Cultural Transfer
211 Cultural Transfer vs Transcoding
Despite years of debate translation scholars are still wrestling over whether a
translation should be literal or free In traditional theory literal translation has been
characterized as a word-for-word transmission of a text from one language into
another The adequacy of translation has traditionally been judged on the basis of the
degree of lexical and grammatical correspondence between the source and target
languages Such correspondence is often defined in terms of equivalence Thus
fidelity to the original text is considered the most important principle of translation
and the main task of the translator is to find the best equivalence On the other hand
free translation has been characterized as a sense-for-sense transmission not
constrained by the lexicon or grammar thus giving the translator absolute freedom as
to how to render the source text in the target language Challenging the rigid
dichotomy of word and sense Snell-Hornby (1988) contended that it was rooted in
the ldquoillusion of equivalencerdquo (p 13) and as we have already noted advocated the
notion of cultural transfer as a complete break with the traditional theory She pointed
out that this new orientation had in fact already been put forward by several German
scholars in the 1980s She said
TRANSLATION AS CULTURAL TRANSFER
15
What is dominant in the three new basic approaches recently presented in Germany hellip is the
orientation towards cultural rather than linguistic transfer secondly they view translation not as
a process of transcoding but as an act of communication thirdly they are all oriented towards
the function of the target text (prospective translation) rather than prescriptions of the source text
(retrospective translation) fourthly they view the text as an integral part of the world and not as
an isolated specimen of language These basic similarities are so striking that it is not exaggerated
to talk of a new orientation in translation theory (pp 43-44)
Adopting Vermeerrsquos view that translation is a ldquocross-cultural eventrdquo
Snell-Hornby argued that translation was not simply as ldquoa matter of languagerdquo but a
ldquocross-cultural transferrdquo (p 46) As has been noted in section 11 Vermeer (1996) in
his endeavour to establish skopos theory held that translation was not the
trans-coding of words or sentences from one language to another but a complex form
of action Skopos theory is basically a functional theory and ldquoits concern is the
potential functionality of a target-text (translationtranslatum) under target-culture
(lsquorecipientsrsquo) conditionsrdquo (1996 p 31) Vermeer emphasized that the target culture
constrained the choices available to the translator urging her to pay special heed to
the convention of the target culture and the expectations of the target reader which in
turn pre-determine the function of the translation In refuting the concept of
equivalence he contended
It is not the source-text equivalence (or more loosely correspondence) requirement which
guides the translation procedure but the skopos eg to show target-text recipients how a
source-text iswas structuredrdquo (1996 p 51)
TRANSLATION AS CULTURAL TRANSFER
16
One of the main factors in the skopos of a communicative activity is ldquothe (intended)
receiver or addressee with their specific communicative needsrdquo (1996 p 46) He
claimed that skopos theory applied to all translations and the function of the
translation in the target text could differ from that of the source text The same text
could therefore be translated in different ways depending on its function and the
translatorrsquos main task was to produce a new text that satisfies the cultural expectations
of target receivers
As Vermeerrsquos and Snell-Hornbyrsquos proposed new orientation was intended as a
revolt against the prevailing linguistic approach we now need to look back at the
major tenets of this earlier turn
Catford is generally acknowledged to be the founder of the linguistic school in
translation theory In defining translation as ldquothe replacement of textual material in
one language (SL) by equivalent textual material in another language (TL)rdquo (1965 p
20) Catford presupposed the existence of linguistic equivalence between SL and TL
For him textual material was not ldquothe entirety of a SL textrdquo but mainly the ldquogrammar
and lexisrdquo (p 20) He further made a linguistic break-down of SL and TL into what he
called ldquoextentrdquo ldquolevelsrdquo and ldquoranksrdquo employing equivalence as a key concept
throughout (p 21) He said
The central problem of translation practice is that of finding TL translation equivalents A
central task of translation theory is that of defining the nature and conditions of translation
equivalence (p 21)
TRANSLATION AS CULTURAL TRANSFER
17
Thus in Catfordrsquos view the central problem and task of translation centre around the
concept of equivalence He further distinguished between ldquotextual equivalencersquordquo and
ldquoformal correspondencerdquo two basic translation equivalences in his theory (p 27)5
Equivalent units in the TL vary in size from the entire text to any portion of the text
having a wider scope than formal correspondence In his view textual equivalence is
represented by the occurrence of a TL textual equivalent for a specific SL item
allowing equivalence-probabilities to be established between the two (p 30)
Thus for Catford establishing equivalence-probabilities is an ideal goal of
translation as these allow translation to be carried out in a manner similar to
mathematics
On the other hand formal correspondence as Catford pointed out is best
exemplified by translation between two languages both of which operate with
ldquogrammatical units at (all) five ranksrdquo (for example English and French)6 While
formal correspondence is harder to achieve as it requires the nearest match between
TL and SL grammatical categories and can only be fulfilled through textual
equivalence Catford maintained that the former is still ldquoan essential basis for the
discussion of problems which are important to translation theory and necessary for its
applicationrdquo in translation practice (pp 32-33) Observing that there are always ldquosome
departures from the formal correspondencerdquo what he called ldquoshiftsrdquo he conceded that
5 The definitions of textual equivalence and formal correspondence are given as follows
A textual equivalence is any TL text or portion of text which is observed on a particular occasion
by methods described below to be the equivalent of a given SL text or portion of text A formal
correspondence on the other hand is any TL category (unit class structure element of structure
etc) which can be said to occupy as nearly as possible the lsquosamersquo place in the lsquoeconomyrsquo of the
TL as the given SL category occupies in the SL (Catford 1965 p27) 6 The five ranks are sentence clause group word morpheme (Catford 1964 p32)
TRANSLATION AS CULTURAL TRANSFER
18
formal correspondence can only be approximate in nature He further distinguished
between two major types of ldquoshiftsrdquo level shifts and category shifts In general terms
they are linguistic units in SL which have TL equivalents belonging to a different
linguistic level or category (1965 p 73) Thus Catford was well aware that
ldquotranslation equivalence does not entirely match formal correspondencerdquo That is why
he resorted to textual equivalence (p 82) He was also aware that even textual
equivalence is not always achievable because of two kinds of un-translatability
linguistic and cultural Linguistic un-translatability occurs when there is no lexical or
syntactical substitute in the TL for an SL item whereas cultural un-translatability is
due to the absence in the TL culture of a relevant situational feature for the SL text
We are now in a better position to assess Snell-Hornbyrsquos critique of Catfordrsquos
linguistic theory of translation Her main criticism7 centres around the foundation of
his linguistic approach which seems to her shaky
Catford bases his approach on isolated and even absurdly simplistic sentences of the type
propagated in theory of transformational grammar as well as on isolated words from such
examples he drives ldquotranslation rulesrdquo which fall far short of the complex problems presented by
real-life translation (1988 p 20)
Anyone who has read Catford carefully can see that this criticism is totally
unfounded According to Catford translation textual equivalents are discovered by
two methods namely by consulting the linguistic intuition of competent bilingual
7 Snell-Hornby also dismissed Catfordrsquos definition of textual equivalent as circular (1988 p20) She
is correct on this point as Catford did use the term ldquoequivalentrdquo to define ldquotextual equivalentrdquo (see
footnote 5 above)
TRANSLATION AS CULTURAL TRANSFER
19
informants or translators or through a formal procedure of commutation and
observation of concomitant variation the latter being ldquothe ultimate testrdquo (1965 pp
27-28) But Snell-Hornby completely and conveniently ignores the second method
directing her attack solely on the first
Anyone with experience in translation knows all too well the opinions of the most competent
translators can diverge considerably and the hellip [first method] ismdashfor a rigorously scientific
disciplinemdashhopelessly inadequate (1988 p20)
This criticism fails to do justice to Catford He made it very clear that consulting
the linguistic intuition of competent bilingual informants or translators works only for
simple cases but that for complicated cases the formal procedure may be used (p 28)
To illustrate this point let us adapt Catfordrsquos examples Suppose we have the
following sentence pair
1a 我的兒子六歲
1b My son is six
If we change ldquo兒子rdquo of 1a to ldquo女兒rdquo to obtain
1c My daughter is six
then the changed portion of 1b namely ldquodaughterrdquo can be taken to be the equivalent
of the changed portion of 1a namely ldquo女兒rdquo ie ldquodaughterrdquo = ldquo女兒rdquo The method
applies not only to lexical words but also to structural words Consider the following
sentence pair
2a 地上有黃金
2b There is gold on the ground
TRANSLATION AS CULTURAL TRANSFER
20
If we change ldquo上rdquo in 2a to ldquo下rdquo to obtain
2c There is gold under the ground
likewise the changed portion of 2b namely ldquounderrdquo can be taken as the equivalent of
the changed portion of 2a namely ldquo下rdquo ie ldquounderrdquo = ldquo下rdquo
Of course the procedure is not always so straightforward Finding a translation
equivalent may involve the very complicated procedure of comparing a great number
of sentence pairs However complicated it can nonetheless be carried out rigorously
and each of its finding subjected to very strict tests
What is most noteworthy about Catfordrsquos second method is that it is an empirical
and probabilistic one Translation equivalence is ldquoan empirical phenomenon
discovered by comparing SL and TL textsrdquo (p 27) Well aware of the fact that
equivalence between an SL item and a TL item is not always a one-to-one
correspondence Catford assigned a probability value to each equivalent pair ranging
from 0 (zero equivalent) to 1 (one-to-one) The following is Catfordrsquos own example
[I]n a French short story of about 12000 words the preposition dans occurs 134 times The
textual equivalent of this in an English translation is in in 98 occurrences into in 26 from in 2
and about and inside in one occurrence each there are six occurrences of dans where the
equivalent is either nil or not an English preposition hellip In terms of probabilities we can state the
translation equivalences as follows dans = in 73 dans = into 19 dans = from 015 dans =
aboutinside 0075 This means that if you select any occurrence of dans at random in this text
the probability that its translation equivalent on that occasion is in is 73 the probability that it is
into is 19 etc (1965 p 30)
TRANSLATION AS CULTURAL TRANSFER
21
Catford further distinguished between two types of probability value namely
unconditioned probabilities and conditioned probabilities the latter being values
affected by contextual and co-textual factors (pp 31-32) He went on to make the
following remark
Provided the sample is big enough translation-equivalence-probabilities may be generalized to
form lsquotranslation rulesrsquo applicable to other texts and perhaps to the lsquolanguage as a wholersquomdashor
more strictly to all texts within the same variety of the language (p 31)
Thus nothing is further from the truth than accusing Catford of deriving
translation rules from ldquoabsurdly simplistic sentencesrdquo as alleged by Snell-Hornby
Quite on the contrary for Catford they are derived from a big enough samplemdash a big
enough corpus in contemporary linguistic terminology More crucially his approach
is in all important respects the same as the corpus-based approach in translation
studies today which aims to extract translation rules from a huge parallel corpus of
translated texts Catford can thus properly be said to be the pioneer of the
corpus-based approach in translation studies
Three further points must be made about Catfordrsquos linguistic approach
particularly since it has been so unfairly and widely criticized even to the extent of
making it something of a dead horse in translation studies today
First Catfordrsquos linguistic approach is by no means built on the ldquoillusion of
equivalencerdquo For he expressly states that ldquothe SL and TL items rarely have lsquothe same
meaningrsquo in the linguistic senserdquo (p 49) ldquosince every language is formally sui generis
and formal correspondence is at best a rough approximationrdquo (p 36) Translation
TRANSLATION AS CULTURAL TRANSFER
22
equivalence is therefore not based on sameness in meaning but on functional
interchangeability in the same context (p 49) Put briefly a TL sentence T is a
translation equivalent of an SL sentence S if T and S have overlapping meanings
relevant to the context in question (pp 37-39) such that T ldquocan function in the same
situationrdquo as S (p 49)8 Accordingly the aim of translation is Catford argued to
select TL equivalents ldquonot with the same meaning as the SL items but with the
greatest possible overlap of situational rangerdquo (p 49) Catfordrsquos ldquotranslation
equivalentrdquo looks very much the same as Nidarsquos ldquoclosest natural equivalentrdquo but it
differs from the latter in one crucial aspect in that it is invariably context-dependent
whereas the latter can be context-free
Another equally important point about Catfordrsquos linguistic approach can best
been seen from the following passages
hellip[A] manifestation of the lsquosame meaningrsquo or lsquomeaning-transferencersquo fallacy is seen in the view
that translation is a lsquotranscodingrsquo process a well-known example being Weaverrsquos remark
lsquoWhen I look at an article in Russian I say ldquoThis is really written in English but it has been
coded in some strange symbols I will now proceed to decoderdquo
This implies either that there is a one-to-one relationship between English and Russian
grammaticallexical items and their contextual meanings or that there is some pre-existent
lsquomessagersquo with an independent meaning of its own which can be presented or expounded now in
one lsquocodersquo (Russian) now in another lsquocodersquo (English) But this is to ignore the fact that each
8 While Catford explained this point in great detail in Chapter 5 Meaning and Total Translation we
cannot elaborate on it here
TRANSLATION AS CULTURAL TRANSFER
23
lsquocodersquo (ie each language carries with it its own particular meaning since meaning hellip is lsquoa
property of languagersquohellip
hellip
Our objection to lsquotranscodingrsquo or lsquotransference of meaningrsquo is not a mere terminological quibble
There are two reasons why translation theory cannot operate with the lsquotransference of meaningrsquo
idea In the first place it is a misrepresentation of the process and consequently renders the
discussion of the conditions of translation equivalence difficult in the second place it conceals
the fact that a useful distinction can be made between translation and another process which we
call transference In transference hellip there is indeed transference of meaning but this is not
translation in the usual sense (pp 41-42)
Meaning does not get transferred in translation and translation is not a process of
transcoding This comes out loud and clear in Catford Translation for him is not a
process of code-switching according to rigid mechanical rules based on one-to-one
formal correspondence between SL and TL items as Nord has alleged (1997 p 7)
nor is it a process of transcoding of pre-existent naked meaning So the Catford that
Snell-Hornby and many others have attacked turns out to be not merely a straw man
but ironically also a comrade in arms
A third important point to note about Catfordrsquos linguistic approach is that it is by
no means incompatible with the so-called cultural approach As has been shown
Catfordrsquos approach is an empirical and probabilistic one Its aim is twofold first to
find TL equivalents (in his sense) by way of comparing actual samples of SL and TL
texts with the resultant TL equivalents serving as translation rules and second to set
out the conditions for justifying TL equivalence Unlike Snell-Hornby and many other
theorists Catford never told us how to translate So in this sense his linguistic
TRANSLATION AS CULTURAL TRANSFER
24
approach can be said to be theory-free He only told us how to find translation
equivalents which is exactly what corpus linguists do nowadays A corpus might
contain TL texts produced in the light of different or even conflicting theories but
Catfordrsquos approach would still be applicable Accordingly the cultural approach
advocated by Snell-Hornby and others of a similar persuasion is not really a rival
approach and hence there is not much sense in talking about an emancipation from
the linguistic theory of translation that Catford represents
212 Vermeerrsquos View of Translation as Cross-cultural Transfer
The tenets of the cultural school as represented by Vermeer and Snell-Hornby
can be reduced to three statements
1 Translation is not simply a matter of language and it does not take place
merely between languages
2 Language is an integral part of culture and hence translation from one
language to another is a cross-cultural transfer and
3 The source text in itself does not dictate how it is to be translated what
dictates the translation is the specific purpose in question
This counters the lay view of translation described well enough by Snell-Hornby
as follows
hellip translation is simply a matter of words or individual linguistic signs which are replaced by
equivalent words signs or units in the target language The translator so it is assumed therefore
TRANSLATION AS CULTURAL TRANSFER
25
needs either simply a good command of the vocabulary in both languages involved or a good
dictionary (1992 p 2)
Such a naive static and mechanical view is as Snell-Hornby endeavoured to show
rooted in the false belief in the existence of equivalence between languages ie a
one-to-one correspondence between SL and TL items Yet her critique of such a
notion was directed not so much against lay people as against Catford and other
descriptivists such as Toury and Koller But it is really hard to see how such a view
of translation could be attributed to Catford who expressly dismissed it as fallacious
We do not want to labour this point but let us just say this Vermeer and
Snell-Hornbyrsquos vehement opposition to the linguistic approach is totally misguided
In place of the false dichotomy of word vs sense they have ushered in the false
dichotomy of transcoding vs cultural transfer As has already been shown by Catford
there is no such a thing as transcoding What then is cultural transfer
Vermeer answered the question with a metaphor
What does it mean to translate hellip Suppose you take a tree from a tropical climate to a temperate
zone Will it not need special care Will it not be considered something out of the ordinary by
whoever sees it It will never be the same as before neither in growth or in the eyes of its
observers hellip With a translation it is not much different One will have to decide before
translating whether it is to be ldquoadaptedrdquo (to a certain extent) ie ldquoassimilatedrdquo to target culture
conditions or whether it is meant to display and perhaps even stress its ldquoforeignrdquo aspect One
will have to make a choice In both cases the text will be ldquodifferentrdquo from what it was in its
ldquonormalrdquo source-culture conditions and its ldquoeffectrdquo will be different Assimilation does not
necessarily mean making a text look like an ordinary target-culture text(eme) ie making it look
TRANSLATION AS CULTURAL TRANSFER
26
ldquoas though it were not translationrdquo Assimilation need not take place on the ldquosurfacerdquo level
alone paradoxically enough assimilation on other levels can lead to an ldquoalienationrdquo
(Verfremdung) on the surface level (1995 p 39)
Translation is likened to the transplant of a tree onto foreign soil for a specific
purpose The translated text (the transplanted tree) has been adapted or assimilated to
a culture (foreign soil) different from the original (home soil) One important point to
note here is assimilation can take place on different levels the target text is not
necessarily a completely domesticated textmdashit may indeed turn out to be alien to the
target culture This is a point which has been overlooked or suppressed by Vermeerrsquos
followers who have identified Vermeerrsquos functional approach with domestication
Since the notion of skopos is an all-embracing one it is in principle able to
accommodate all kinds of approach to translation
hellip skopos theory hellip allows for transferring (or demands the transfer of) as many features of the
source-text surface-structure as possible into target culture surface-structure features in such a
way that target-culture addressees can appreciate the literariness of the translation in a way
comparablesimilarcorresponding to source-culture addressees who are able to appreciate their
source-text (1995 p 50)
[Note in the original The term ldquotransferrdquo is not strictly applicable Nothing is physically
transferred]
The passage is worth noting in two important respects The original footnote clearly
shows that Vermeer was not comfortable with the word ldquotransferrdquo It would be
interesting to see what word he would or could have used in its place ldquoTranscodingrdquo
would have definitely been ruled out as by it he meant translation which takes place
TRANSLATION AS CULTURAL TRANSFER
27
merely between languages guided by the principle of equivalence This is not a trivial
observation For ldquotranslation as cultural transferrdquo was used by him to mark a new
orientation in translation studies So it is legitimate to press the question of what he
meant by ldquocultural transferrdquo The tree transplanting metaphor cited above suggests
that in translation a text is transferred from one culture to another with the two
cultures in question remaining unchanged This is in line with the definition Vermeer
gave in his seminal paper entitled ldquoTranslation as a cultural transferrdquo (1986) However
the passage just cited implies that transcoding in the sense that purely linguistic
features of the source text are ldquocarried over tordquo9 or reproduced in the target text can
be one possible purpose of translation This seems to defeat the whole purpose of
skopos theory which asserts that ldquotranslation is not the transcoding of words or
sentences from one language to anotherrdquo (1986 p 33) A closer look at his remarks
on the ldquoequivalence postulaterdquo of Touryrsquos theory will reveal something even more
devastating for skopos theory however
hellip there is a methodological difference between Touryrsquos approach and that of skopos theory
According to the latter a lsquotransferrsquo (by any strategy) of a great number of source-text phenomena
to a target-text still depends on the skopos (purpose) of translating It is not the source-text
equivalence (or more loosely correspondence) requirement which guides the translation
procedure but the skopos eg to show target-text recipients how a source-text iswas structured
(or for some other purpose hellip) The skopos is hierarchically higher than the equivalence postulate
Such a procedure is then not retrospective (as is the case when taking the source-text structure as
the highest element in the hierarchy) but prospective in the sense that the skopos demands a full
consideration of source-text structures for a given purpose In such a case the difference between
9 ldquoCarry overrdquo was also used by Vermeer as a synonym of ldquotransferrdquo (1990 p 50)
TRANSLATION AS CULTURAL TRANSFER
28
Touryrsquos approach and that of skopos theory is one of focus in practice the result may look much
the same (Ibid p 51 Italics mine)
The passage clearly shows that Vermeer was in fact not really against the equivalence
postulate or transcoding as he expressly stated that the difference between Touryrsquos
approach and his is ldquoone of focusrdquo ie Touryrsquos focus is on the source-text
(retrospective) whereas his is on the target-text (prospective) and that both
approaches may lead to much the same target text We can thus see that the kind of
transcoding he deplored was in the final analysis transcoding without a purpose
whereas he saw transcoding with a purpose as both possible and legitimate His
opposition to the linguistic approach turns out to have been overstated
The fundamental principle of skopos theory according to Vermeer is that it
ldquostrictly regards translating from the point of view of a text functioning in a
target-culture for target-culture addressesrdquo (1990 p 50) Translation as cultural
transfer is therefore translating a text from one culture to another according to a
specific function What is transferred (understood in a figurative sense) is the text not
the culture of the text But here Vermeer simply failed to see there are situations
where ldquocultural transferrdquo means ldquothe transfer of one culture to anotherrdquo and
legislative translation is a typical case of cultural transfer in this sense
213 Snell-Hornbyrsquos View of Translation as Cultural Transfer
In line with the central arguments of the new theoretical orientation which I
have just discussed Snell-Hornby held that translation was a cultural transfer rather
TRANSLATION AS CULTURAL TRANSFER
29
than a linguistic transfer and that translation as a cultural transfer was oriented
towards the function of the target culture and also facilitated cross-cultural
communication To illustrate this point Snell-Hornby (1998 pp 94-5) cited her own
experience in India When walking along the streets of Southern India about twenty
years earlier she was repeatedly approached by local people who asked her a question
in their native language which literally means ldquoWhere are you goingrdquo in English She
was obviously puzzled by this strange question Later she found out that it was a local
form of greeting when people met in the street A mere transcoding would yield
ldquoWhere are you goingrdquo which in her view was problematic because it was likely to
cause a communication break-down She pointed out how this showed the limitations
of mere transcoding by neglecting the twin facts that language was dependent on
cultural and social norms and that translation was essentially a cross-cultural event
Instead an appropriate translation would be ldquoHow are yourdquo as it complied with the
conventions of greeting in English and thus effected a cultural transfer
The starting point of Snell-Hornbys framework is reasonable in the sense that
the pursuit of absolute equivalence or symmetry between languages is futile and it is
doubtless the case that cultural elements must been taken into account when doing
translation If her thoughts on the incident lead her merely to the above conclusion
her argument about the cultural account in translation would be sound However in
analyzing the appropriate translation for the Indian way of greeting she distinguished
two translation methods one is the mere transcoding and the other is what she called
ldquocultural transferrdquo In her view linguistic transcoding and cultural transfer are
apparently two distinct methods of translation Linguistic transcoding is reduced to
linguistic transference without any cultural account By contrast cultural transfer
indicates the rendering of source text smoothly and idiomatically such that the English
TRANSLATION AS CULTURAL TRANSFER
30
speaking reader would perceive the translation as conventional and familiar Thus the
important units of translation are seen as products of culture that emerges from their
distinctive social settings instead of strings of words or sentences or even whole texts
According to Snell-Hornby translation should be oriented towards the function of the
target text rather than submit to the prescription of the source text She remarked
The text cannot be considered as a static specimen of language (an idea still dominant in
practical translation classes) but essentially as the verbalized expression of an authorrsquos intention
as understood by the translator as reader who then recreates this whole for another readership in
another culture This dynamic process explains why hellip the perfect translation does not exist
(1988 pp 1-2)
We shall see from the above that in proposing the translator ldquorecreates this whole
for another readership in another culturerdquo Snell-Hornby holds that translation as
ldquocultural transferrdquo should conform to the cultural norms of the target language and
familiarize the source culture to the extent that target readers could identify it with
their own culture As has been shown the term ldquocultural transferrdquo is used by
Snell-Hornby as the antithesis to ldquolinguistic transcodingrdquo It is clear what she means
by ldquolinguistic transcodingrdquo a naiumlve simplistic static and mechanical manner of
translation which consists in matching SL and TL words solely by relying on a
bilingual dictionary a view of translation rooted in the false belief in the existence of
equivalence (a one-to-one correspondence) between languages However it is by no
means so clear what she means by ldquocultural transferrdquo particularly what she means by
ldquotransferrdquo ie what gets transferred in translation
TRANSLATION AS CULTURAL TRANSFER
31
She regularly stresses two points in her work First language is an integral part
of culture and also of the world Understanding a text requires an understanding of its
socio-cultural context and this applies to both the source text and the target text
Second translation is an act of communication oriented towards the function of the
target text not a mere linguistic operation prescribed by the source text These two
points seem clear enough but again what gets transferred in translation is not at all
clear
Her discussion of the translation approach of Hans G Houmlnig and Paul Kussmaul
(in Snell-Hornby 1988 pp 45-46 1990 pp 83-84) which she endorsed gives us
some idea of what she means
Houmlnig and Kussmaulrsquos starting point is the conception of the text as what they call lsquothe
verbalized part of a socio-culture (1982 58) the text is imbedded in a given situation which is
itself conditioned by its sociocultural background The translation is then dependent on its
function as a text lsquoimplantedrsquo in the target culture The basic criterion for assessing the quality of
a translation is called the lsquonecessary grade of differentiationrsquo which represents lsquothe point of
intersection between target text function and socio-cultural determinantsrsquo (1982 53)
To illustrate this they quote two sentences each naming a famous British public
school
In Parliament he fought for equality but he sent his son to Winchester
When his father died his mother couldnrsquot afford to send him to Eton any more
They then quote two extreme types of German translation
TRANSLATION AS CULTURAL TRANSFER
32
hellipseinen eigenen Sohn schickte er auf die Schule in Winchester
hellipkonnte es sich seine Mutter nicht mehr leisten ihn nach Eton zu schicken jene teure englische
Privatschule aus deren Absolventen auch heute noch ein Grossteil des politischen und
wirtschaftlichen Fuhrungsnachwuchses hervotgecht10
The first translation is under-differentiated the mere name ldquoWinchesterrdquo does not
carry the same meaning for a German reader as for an English one The second is
over-differentiated however correct the information on British public schools may be
it is superfluous to the text concerned In the first of the two sentences it is the
double-faced hypocrisy of the father (hence the exclusive elitist character of public
schools) that is stressed while the second focuses on an impoverished widowed
mother (and the expensive school fees) As the necessary grade of differentiation for
the texts in question the authors therefore suggest
Im Parlament kampfte er fur die Chancengleichheit aber seinen eigenen Sohn schickte er auf
eine der englischen Elisteschulten [elite schools]
Als sein Vater starb konnte seine Mutter es sich nicht mehr leisten ihn auf eine der teuren
Privatschulen [private schools] zu schicken (1990 pp 83-84)
Here Snell-Hornby agrees with Houmlnig and Kussmaulrsquos approach which rejects
the orthodox demand to preserve as much of the original as possible so as to achieve
equivalence in translation Preserving ldquoWinchesterrdquo in the German translation is an
under-translation because for German readers the name ldquoWinchesterrdquo would just be
10 Snell-Hornbyrsquos translation ldquohellipthat expensive English public school which even today produces
many of the future leaders in politics and managementrdquo
TRANSLATION AS CULTURAL TRANSFER
33
the name of a city perhaps even unable to call up the notion of there being a school
there let alone Winchester College the oldest public school in England On the other
hand filling in too much background information is an over-translation distracting
readers from the impoverished condition of the widowed mother The suggested
translations in which ldquoWinchesterrdquo is translated as ldquoone of the elite schools and
ldquoEtonrdquo as ldquoone of the expensive private schoolsrdquo give as much information as
necessary for the functions of the two English sentences to allow German readers to
understand the socio-cultural meaning of ldquoWinchesterrdquo and ldquoEtonrdquo So we are not
translating ldquowordsrdquo but ldquowords-in-textrdquo (1988 p 45) What gets transferred in
translation should be the socio-cultural meaning of words not their surface meaning
of words
In a paper entitled ldquoTranslation as a Cultural Shock Diagnosis and Therapyrdquo
(1992) Snell-Hornby describes how erroneous mechanical matching of equivalents
in translation can give rise to interlingual miscommunication and cultural shock An
amusing example reads
Nice German business man 36 wants to become a black woman Every letter will be answered
(p 2)
The shock obviously unintended is due to matching the German ldquobekommenrdquo (=
getfind) to the English ldquobecomerdquo Examples like this abound11
11 The English translation of a sign in China reads ldquoCarefully fall into the riverrdquo The Chinese
original reads ldquo小心堕河rdquo
TRANSLATION AS CULTURAL TRANSFER
34
On the syntactic level following the conventions of the source text would give
rise to stiltedness in the target text Very often equivalent syntactic forms are not
acceptable in the target language (1990 pp 6-7) The following are English
translations of a hotel advertisement in German The one on the left is the original
translation which stays close to German syntax and the one on the right is a rewriting
according to English advertising conventions
To enjoy Viennarsquos unique atmosphere Come and enjoy the unique
atmosphere
In one of the cityrsquos guesthouses of Viennamdashand stay in one of
the cityrsquos finest Pensionen
University City hall Parliament A few minutesrsquo walk from the
University
Burgtheatre and Vortivkirche City Hall Burgtheatre and
Vortivkirche
In the immediate vicinity
hellip hellip
The upshot of her discussion is this ldquoTranslation is not a merely a matter of
language but primarily one of knowledge of which language forms only a partrdquo (p
7) And translation should free itself from the inexorable grip of words and avoid
inflicting cultural shocks by conforming to the linguistic and cultural norms of the
target language Let us return for a moment to the questions arising from the two
approaches to translating the Indian greeting examined by Snell-Hornby namely
linguistic transcoding and cultural transfer For her the way to effect cultural transfer
is to match the original Indian greetings to an idiomatic expression in English In this
TRANSLATION AS CULTURAL TRANSFER
35
way the translation actually functions the same way as the original does but may fail
to preserve the original patterns and to reflect the real meaning expressed in the
original text In other words the cultural transfer that Snell-Hornby advocates
involves conformity with the conventions of the target culture In addition
Snell-Hornby only recognizes the importance of the source culture in the
understanding of source text Instead she places great emphasis on the target culture
since she holds that the translator should be oriented towards the target culture
producing translation that is representative of the culture of target language instead of
the culture of the source language Evidently translation as cultural transfer in this
sense involves inadequate transference of the source culture Cultural transfer is in the
final analysis ldquocommunication across culturesrdquo (p 7) very similar to what Newmark
called ldquocommunicative translationrdquo
214 Domestication vs Foreignization
In maintaining translation as cultural transfer Snell-Hornby is in fact adopting a
target-culture-oriented position For her the source culture is important only for
understanding the source text but the target culture in fact plays a far more vital role
since it shapes the target text which is what actually facilitates cross-cultural
communication Thus viewed translation as cultural transfer is in effect
cross-linguistic communication at the cultural level a mapping of the source culture
onto the target culture in other words a functional assimilation of the source culture
into the target culture
TRANSLATION AS CULTURAL TRANSFER
36
As is well known such an approach is contrary to the one advocated by
Schleiermacher For him there are only two options for the ldquotruerdquo translator Either to
move the reader towards the writer or to move the author towards the writer
(Robinson 1997 p229) He opted for the first remarking
To achieve this the translator must adopt an lsquoalienatingrsquo (as opposed to lsquonaturalizingrsquo) method
of translation orienting himself or herself by the language and content of the ST He or she must
valorize the foreign and transfer that into the TL (quoted in Munday 2001 p 28)
Adopting Schliermacherrsquos categorization of these two translation strategies
namely ldquoalienatingrdquo and ldquonaturalizingrdquo Venuti (1992) argues that the former strategy
could exert a positive influence on the target culture while the latter might inhibit
innovation on the part of the target language and culture Having examined past
examples of the decisive role of domestication in forming certain foreign cultural
identities in the target culture he had come to realize that translators had tended to
achieve the goal of communication by naturalizing foreign texts in order to conform
to domestic conventions However the domestication of a foreign culture could result
in misrepresentations of that culture Worse still it could paralyze the ability and
willingness of the target reader to accepting new elements from a foreign culture
Venuti came to the conclusion that although translation is bound to be domestication
to some degree foreignization ldquopromises a greater openness to cultural differencesrdquo
(p 23) Like Schliermacher he subscribed to foreignization which he believed was
the proper way to effect the transfer of the source culture as it allowed the target
language to be influenced and amplified by the source language and open the way to
novelty and innovation in the target language Thus translation as ldquocultural transferrdquo
leaves a choice open to each individual translator Either she chooses foreignization
TRANSLATION AS CULTURAL TRANSFER
37
preserving the alien elements in the target text or she chooses domestication ironing
these out to make the target text readily comprehensible to the reader The choice in
practice depends on the particular skopos that the translator intends
It is crucially important to understand the opposed notions of ldquodomesticationrdquo
and ldquoforeignizationrdquo very clearly if we wish to understand precisely what is involved
in effecting cultural transfer Whether a translation exhibits domestication or
foreignization can only be determined where the context reveals cultural asymmetry
and is examined as such12 In other words it is only when directly confronted with the
problem of translating a culture-specific item that the translator has to make a choice
between the two strategies A common misunderstanding is that the translator is
always engaged in make such a choice even when translating items that are not
culture-specific Consider the translation of the two English terms ldquoInternetrdquo and
ldquoSarsrdquo into Chinese For each term we can have at least two translations yinte wang
(英特網) and hulian wang (互聯網) for ldquoInternetrdquo shashi (沙士) and fei dianxing
xing feiyan (非典型肺炎) for ldquoSarsrdquo It is interesting to note that the linguistic
formation of the translated terms yinte wang (英特網) and shashi (沙士) may seem
ldquoforeignrdquo to the Chinese reader and hence are considered as ldquoforeignizedrdquo terms
However both ldquoInternetrdquo and ldquoSarsrdquo are terms which represent non-culture-specific
concepts ldquoyinte wang (英特網) and shashi (沙士) differ from hulian wang (互聯網)
and fei dianxing xing feiyan (非典型肺炎) only in that they are transliterations rather
12 In an attempt to define translation strategy Kwiecinski (2001) provided a rather comprehensive
definitionldquohellip translation strategy hellip may be definedhellipas a textually manifest norm-governed
intersubjectively verifiable global choice of the degree in which to subscribe to source-culture or
target-culture concepts norms and conventionrdquo (p 120) Despite the complicated modification of the
word ldquochoicerdquo one thing we could see clearly is that translation strategy always involves a choice in
relation to culture-specific elements
TRANSLATION AS CULTURAL TRANSFER
38
than semantic translations a difference solely in translation technique The question
of whether this is foreignization simply does not arise here Likewise hulian wang
(互聯網) and fei dianxing xing feiyan (非典型肺炎) though readily comprehensible
in their linguistic form are not cases of domestication because no foreign culture is
involved here Put differently whether a translation is a case of domestication or
foreignization cannot be determined by the naturalness or foreignness of its linguistic
form alone
So what do we actually do as translators when we come across culture-specific
items If we choose to domesticate we just need to find an item in the target language
as a linguistic substitute leaving the target language as it is For example translating
the English idiom ldquothere is no smoke without firerdquo into wufeng buqi lang (無風不起
浪) (no waves without wind) actually replaces the English idiom with a similar one in
Chinese both mean that there must be a reason for the result No linguistic and
conceptual adjustment on the part of the target language is required Any peculiarity
in this way of expressing causality in English is no longer discernible in the
translation ie the cultural meaning of the source language has been domesticated or
naturalized
In contrast to foreignize means to import the source culture into the target
culture This can be achieved in two ways One is to foreignize at both the linguistic
and conceptual levels ie calling on the target language to make both linguistic and
conceptual adjustments Take the example of the English translation of the Chinese
term li (禮) one of the key concepts in Confucianism When it is translated as li (禮)
using the technique of transliteration (direct borrowing) it evidently introduces to the
target reader a new linguistic form Adjustment also needs to be made on the
TRANSLATION AS CULTURAL TRANSFER
39
conceptual level so that the English reader can understand the cultural meaning of the
coined English term li in the light of Confucianism The other way is to foreignize
only at the conceptual level ie without involving any linguistic adjustment In the
same example when li (禮) is translated as ldquomoralityrdquo ldquoproprietyrdquo or ldquoritualrdquo the
translator uses an existing English word as its equivalent However when the
translator makes it clear to the English reader that ldquomoralityrdquo ldquoproprietyrdquo or ldquoritualrdquo
should not be understood in their usual senses in English but should be re-defined and
understood with reference to Confucianism an intention to foreignize is revealed We
can see that in either case conceptual adjustment is a must while linguistic adjustment
is not really essential However there are as will be shown cases when where a
particular linguistic structure in the source text may embody the culture of the source
language In such cases the translator has to preserve the linguistic features of the
source text and linguistic and conceptual adjustments of the target language are
required In a nutshell cultural transfer as foreignization requires the translator to
import the culture-specific elements into the target culture regardless of whether the
foreignness is reflected in the linguistic form of their translations The discussion
above only serves as a simplified model for discussing the theoretical framework of
effecting cultural transfer we will introduce It will be elaborated further in the next
section
It is now clear that ldquocultural transferrdquo when employed to characterize translation
as a socio-cultural activity rather than a mere act of linguistic recoding has in fact
been understood in two diametrically opposite senses On the one hand it has been
taken to mean the mapping of the cultural elements of the source text onto their
functional equivalents in the culture of the target text an approach which aims to
facilitate cross-cultural communication without making any linguistic or conceptual
TRANSLATION AS CULTURAL TRANSFER
40
adjustment on the part of the target text by way of domestication On the other hand
the term ldquocultural transferrdquo has also been taken to mean the importation of the source
culture into the target culture an approach which requires linguistic and conceptual
adjustments on the part of the target language
22 Legal Translation as Cultural Transfer
221 Legal Transplant and Legal Translation
The tree transplanting metaphor that Vermeer uses to illuminate translation
studies has a close counterpart in studies of comparative law namely legal transplant
which according to Alan Watson (1974 p 21) is ldquothe moving of a rule or a system
of law from one country to another or from one people to anotherrdquo And interestingly
enough just as there is a perennial debate in translation studies over the translatability
of law there is one in comparative law over the transplantability or transferability of
law
Legrand a strong opponent of the whole idea of legal transplant contends that
the word ldquotransplantrdquo itself already implies its impossibility
To ldquotransplantrdquo according to the Oxford English Dictionary is ldquoto remove and repositionrdquo ldquoto
convey or remove elsewhererdquo ldquoto transport to another country or place of residencerdquo
ldquoTransplantrdquo then implies displacement For the lawyerrsquos purposes the transfer is one that
occurs across jurisdictions there is something in a given jurisdiction that is not native to it and
that has been brought there from elsewhere What then is being displaced (1997 p 111)
TRANSLATION AS CULTURAL TRANSFER
41
For Legrand law is not simply ldquobare propositional statementsrdquo which can travel
across jurisdictions and can be understood without regard to ldquohistorical factors and
habits of thoughtsrdquo (Ibid p 113) Instead propositional statements work together with
their invested meaning to jointly constitute ldquorulesrdquo (Ibid pp 116-17) But because a
legal rule is culture-specific it is bound to be understood differently when integrated
into another legal system (Ibid p 117) Thus ldquoas the understanding of a rule changes
the meaning of the rule changes And as the meaning of the rule changes the rule
itself changesrdquo (Ibid p 117) Legrand remarks
In the words of Eva Hoffman lsquo[i]n order to transport a single word without distortion one would
have to transport the entire language around itrsquo13 Indeed lsquo[i]n order to translate a language or
a text without changing its meaning one would have to transport its audience as wellrsquo14 hellip
So the transplant does not in effect happen a key feature of the rulemdashits meaningmdashstays
behind so that the rule that was lsquotherersquo in effect is not itself displaced over lsquoherersquo hellip Meaning
simply does not lend itself to transplantation There always remains an irreducible element of
autochthony constraining the epistemological receptivity to the incorporation of a rule from
another jurisdiction15 therefore limiting the possibility of effective legal transplantation itself
The borrowed form of words thus rapidly finds itself indigenized on account of the host culturersquos
inherent integrative capacity (Ibid p 118)
hellip
[So] [a]t best what can be displaced from one jurisdiction to another is literally a meaningless
form of words To claim more is to claim too much In any meaning-ful sense of the term lsquolegal
transplantrsquo therefore cannot happen No rule in the borrowing jurisdiction can have any 13 Original note 16 Eva Hoffman Lost in Translation (Minerva 1991) at 175 14 Original note 17 Ibid at 272 15 Original note23 Eg FSC Northrop lsquoThe Comparative Philosophy of Lawrsquo 45 Cornell Law Quarterly (1960) 617 at 657 lsquoin introducing foreign legal and political norms into any society those norms will become effective and take root only if they incorporate also a part at least of the norms and philosophy of the native societyrsquo
TRANSLATION AS CULTURAL TRANSFER
42
significance as regards the rule in the jurisdiction from which it is borrowed This is because as it
crosses boundaries the original rule necessarily undergoes a change that affects it qua rule The
disjunction between the bare propositional statement and its meaning thus prevents the
displacement of the rule itself (Ibid p 120)
Legrandrsquos argument is simply this Anything culture-specific cannot be transplanted
from one culture to another without change Law as underpinned by its rules is
culture-specific Therefore law cannot be transplanted from culture jurisdiction to
another without change The impossibility of legal transplant also entails the
untranslatability of law A text of law when translated from one culture jurisdiction
to another will no longer preserve the meaning of the original text ie it is not the
text of the same law just as in Vermeerrsquos botanical metaphor the text was not be the
same as before16
In response to Legrandrsquos criticism Watson (2006) makes two points which are
relevant to the present study and worth discussing at some length First taken to the
extreme no word means exactly the same even for people who speak the same
language in the same country ldquoBreadrdquo for a poor village housewife does not have the
same meaning as for the wealthy Parisian businessmen (p 2) The same is true for law
within the same country Watson gives the following example
16 In an attempt to avoid the difficulties inherent in the transplant metaphor Langer (2004 pp 32-35)
used translation as a metaphor to explain the circulation of legal ideas rules practice and institutions
First it retains the comparative dimension as it distinguishes between the source text and the target text
of the law Secondly it can explain the loss of meaning Thirdly it can explain the transformation
which the source legal system undergoes as a result of its exchange with the target legal system
Finally it can explain ldquothe transformation which the linguistic and social practices of the target legal
system undergo under the influence of the translated text While these are valid points they cannot
resolve the transplantability problem because the translatability of law is the question at issue here
TRANSLATION AS CULTURAL TRANSFER
43
The possession of cocaine is hellip illegal That means one thing to the petty dealer who sees it as
his sole hope of escaping from his ghetto quite another to the recreational user quite another to
non criminals who live in the same street as the gangs quite another to law enforcement officers
It is banal to notice that the same legal rule operates differently in two countries it operates to
different effect even within one (p 2)
The point he makes here is a valid one Since we cannot say that a legal rule always
remains the ldquosamerdquo within a single jurisdiction we are even less entitled to speak of
its remaining the it is ldquosamerdquo transplanted from one jurisdiction to another
Secondly legal transplant does not preclude different interpretations of the
transplanted law Watson remarks
hellip where a written statutory law is the same within two countries its judicial interpretation may
well differ because of tradition and ways of legal thinking hellip But it is no rare thing for
academics to notice and pass on to practitioners the nature of these differences The very fact
that the statutory rule is the same may well cause legal thinking on it in different countries to
converge
I think I have no need to stress that I have long held that a transplanted rule is not the same
thing as it was in its previous home17 Nor need I stress my long-held view that it is rulesmdashnot
just statutory rulesmdashinstitutions legal concepts and structures that are borrowed not the lsquospiritrsquo
of a legal system Rules institutions concepts and structures might almost be termed tangibles
can easily be reduced to writing and are accessible (pp 2-3)
17Original note 4 See most recently Alan Watson La Out of Context Athens GA 2000 p 1
TRANSLATION AS CULTURAL TRANSFER
44
Watson then goes on to cite from legal history examples of legal transplants on a
grand scale (pp 4-8) which we need not consider for our present purpose The point
that needs stressing is that even though the transplanted law is likely to be given a
different interpretation recognition of the difference may still lead to convergence
Law is of course culture-specific Yet a good part of it is embodied in language It is
through translation that the law of a country is made accessible to other cultures And
as history has shown translation has been a major channel of cultural transfer
However there are many who while conceding that the aspects of law
mentioned by Watson are transplantable through translation the cultural significance
of law is not For instance Hiller contended
During the colonial period language from a British statute was imported into many of its
colonies18 whereby it was a crime for any person ldquobeing armed and having his face
blackened hellip (to) appear in any forest hellip or in any high roadrdquo under a wide variety of stated
circumstances The offence was ostensibly designed to deal with poachers and similar
wrongdoers Arming andor blackening onersquos face was enough to constitute a capital crime in
Britain19 The obvious cultural significance would have been lost in translation The language
would have been rather absurd in an African or Asian setting (1978 pp 157-58)
18 Original note 16 For example the Nigerian Criminal Code Cap 43 sec 417 (e) makes it a felony
for a person to have ldquohis face blackened with intent to commit a felonyrdquo Similarly see Kenya
Penal Code Cap 63 Sec 308 (3) (a) and Uganda Penal Code Cap 106 Sec 285 (1) (e) 19 Original note 17 George I c 22 (emphasis added) The statute enacted in 1713 became known as
ldquoThe Waltham Black Actrdquo simply as ldquoThe Black Actrdquo For a fascinating discussion of the Act see E
P Thompson Whigs and Hunters The Origin of the Black Act New York Pantheon Books 1975)
The Act is reproduced in full in Appendix I of the book
TRANSLATION AS CULTURAL TRANSFER
45
But what Hiller failed to see here is it is not the language that is absurd it is the
law (the ldquoBlack Actrdquo as it is called) When translated into an African or Asian
language the legal meaning of that law is not lostmdashthe person who understands its
translated version knows exactly what it prohibits but finds it absurd as he lives in a
country where hunting is a main source of food Indeed he does not understand why
there is such a law in his country If he is educated enough he may find out the reason
from a book on the history of English law Yet he may still not understand why such a
law is imposed on his people There may be a whole lot of whyrsquos he asks But one
thing he understands is If he does not want to get into trouble with the law he must
not blacken his face and appear in a forest or on a highway with a weapon If the
translation makes him understand that it has done what it is supposed to do
The Black Act was of course culture-specific enacted to address a particular
problem in England But this historical fact does not in any way render it
untranslatable into an African or Asian language Suppose its Chinese translation
reads ldquo任何人不得塗黑臉孔 攜帶武器出現在樹林中或公路上rdquo The translation
says what the Act says The ldquocultural significancerdquo which Hiller did not see in the
translationmdashlost in the translationmdashis not part of what the Act says This is a point
Hiller seems to concede But he goes on to say
hellip [T]ranslationmdashno matter how accuratemdashis not an adequate solution to the problem of
transferability of law The reason lies in the facts that both law and languages are carriers of
culture and that each culture has its own integrity and internal consistency20 These are the
20 Original note 20 ldquoWe may figure the task of the judge if we please the task of a translator the
reading of signs and symbols given from without None the less we will not set men to such a task
unless they have absorbed the spirit and have filled themselves with a love of the language they must
TRANSLATION AS CULTURAL TRANSFER
46
reasons not only why an imported law or institution will not work in the importing country the
way it did in the exporting country21 but more importantly why the importation of foreign
elements into a culture will lsquoskewrsquo the receiving culture in profound ways hellip (pp 158-59)
The successful transplant of a foreign law is of course not solely dependent on an
accurate translation Whether a foreign law can work in the importing culture or not is
a socio-cultural problem not a translation problem Translation can only do what it
can do It can only render a foreign law comprehensible to people of the importing
culture So we can well agree with Hiller that translation ldquois not an adequate solution
to the problem of transferability of lawrdquo Here ldquotransferabilityrdquo means ldquosuccessful
transplantrdquo not ldquosuccessful communicationrdquo While successful transplant requires
successful communication as a pre-condition translation alone cannot transfer the
socio-cultural conditions of a foreign law to the importing culture and makes it work
there The kind of transfer translation effects is linguistic and conceptual not
substantive
222 Translating the Common Law into Chinese as Cultural Transfer
When Hong Kong became a British colony in 1842 the British brought along a
whole lot of ldquoculture-specificrdquo things tangible and intangible of which the common readrdquo B N Cardoro The Notes of the Judicial Process (New Haven Yale University Press 1923) p
174 21 Bob Seldman stresses for example why we cannot assume that every properly socialized person will
know the law if that law is a product of a foreign system On ignorantia juris generally see R B
Seldman supra note 4 at 689 He says by way of illustration ldquoHowever well the system for the
promulgation of laws may work in England it may not and does not work adequately in Africardquo Id at
697
TRANSLATION AS CULTURAL TRANSFER
47
law was one Surprisingly enough it did not seem to occur to Legrand or Watson that
legal transplant as in the case of Hong Kong could pre-empt many of the questions
that triggered their long debate First the transplant was not from one jurisdiction to
anothermdashit was carried out within the same common law jurisdiction as Hong Kong
became a common law jurisdiction the moment the British flag was hoisted (or legally
even earlier) Second for nearly a century and a half the law was in the same
language as its home state namely English Third the law was administered and
practised by professionals from its home state or from other common law
jurisdictions or from the local community who spoke and were trained in the same
language of the law In a word except for some adaptations in areas such as marriage
and succession the common law was transplanted to Hong Kong en bloc Thus the
legal culture however estranged it was from the majority of citizens who were
Chinese-speaking was unmistakably a common law culture
The translation of the common law into Chinese was therefore by no means
carried out in an alien culture from the outset Rather it was carried out in the
transplanted culture of the common law There was no sharp distinction between
source and target cultures in the first place
Under the bilingual legislation system of Hong Kong the English text and its
Chinese counterpart must fulfill two conditions First they must have equal legal
status Second they must convey the same legal meaning The first condition must be
and was in fact met by legislative measures22 However how the second condition
can be met is still not clear to many translation scholars and practising law translators
22 The Interpretation and General Clauses Ordinance (Cap 1) was amended in 1987 to accord both
language texts of the law equal legal status
TRANSLATION AS CULTURAL TRANSFER
48
Some like Snell-Hornby have contended that equivalence in meaning is a chimera
an illusion or an unattainable goal Thinking along the line of Vermeerrsquos skopos
theory we have a definitive purpose here whatever we do and however we do it the
Chinese text must convey the same legal meaning as the English text in other words
the two texts must be equivalent in legal meaning If equivalence were indeed an
illusion then no multilingual legal system would be viable
Let us now re-examine the goal of legal translation now that we have a clearer
notion of cultural transfer in mind Legal translation is certainly among the varieties
of translations where the translator is subject to stringent semantic constraints at all
levels due to the peculiar features of the language of English law on the one hand and
the culturally mediated nature of legal discourse on the other To maintain the
authenticity of the law the cultural concepts which are specific to the original legal
system could not be replaced by functionally equivalent concepts of the Chinese
language Thus cultural transfer by way of domestication is not appropriate in legal
translation The authoritative status of legislation dictates that the goal of legislative
translation is to reproduce a legal text in the target language which conveys the same
legal meaning as the source text It requires the legal translator to adjust the target
language in such a way that the legal meaning of the source text could be expressed
by the target language Cultural transfer as foreignization is best exemplified in the
translation of a particular legal system from one language to another in the present
case the translation of the common law into Chinese
While Hong Kong ceased to be a British colony on July 1 1997 it has been
allowed to retain English law under Chinarsquos policy of ldquoOne Country Two Systemsrdquo
The laws previously in force namely the common law rules of equity ordinances
TRANSLATION AS CULTURAL TRANSFER
49
subordinate legislation and customary law together with the use of English as an
official language have been preserved under the Basic Law of the Hong Kong
Administrative Region
As has been noted the authoritative status of legal texts requires that the goal of
legal translation is to reproduce a legal text in the target language which has the same
legal meaning as the source text Regarding this Roebuck and Sin (1993) defined the
goal of translating the common law into Chinese 23
In attempting to create in Chinese an authentic version of a Common Law rule or principle it
is essential that the Chinese express exactly the same message as the original rule in English
insofar as its meaning is prescriptive (p 193)
23 Sin (1992) set out some basic conditions for the semantic equivalence in translating the Common
Law into Chinese in terms of bilingual legislation
All discussion about semantic equivalence will become futile if we do not focus on the aspect or
aspects of meaning relevant to a particular purpose So we can now define semantic equivalence
between two legal sentences in the following way
(1) Semantic equivalence = sameness in meaning with reference to the relevant
aspect(s)
(2) A sentence S in Language L is = S and Srsquo have the same meaning with reference to the
semantically equivalent to a relevant aspect(s) and S and Srsquo have the same
sentence Srsquo in Language L reference scheme
(3) The legal meaning of a sentence S = The prescriptive value of S
(4) A sentence C of the Chinese version = C and E have the same prescriptive value ie they
of the Common Law has the same prescribe the same behavior under the same
legal meaning as a sentence E of the behavior under the same circumstances and
English version of the Common Law conditions
(5) A sentence C in the Chinese version of the law is semantically equivalent to a sentence E in
the English version if and only if whatever interpretation given to E by the court is given to C (pp
96-99)
TRANSLATION AS CULTURAL TRANSFER
50
Sin (1998) pointedly voices the dilemma that the legal translator faced in seeking to
achieve such a goal
The tension between the translatorrsquos paramount duty to represent the law with
uncompromising accuracy on the one hand and the strong desire of the public to have the law
communicated to them in clear language on the other was deeply felt hellip It is a perennial
tension between the polarity of the two extreme approaches to translation characterized by
Schleiermacher (181342) ldquoeither the translator leaves the writer alone as much as possible
and moves the reader toward the writer or he leaves the reader alone as much as possible and
moves the writer toward the readerrdquo (p203)
Thus the inherent difficulties of the translation of the common law into Chinese
present a highly relevant case for our discussion of cultural transfer as foreignization
As a matter of fact cultural transfer as foreignization is not a novel idea in the
history of translation in China The translation of Buddhist scriptures is a much cited
paradigm of foreignization Although Buddhism became a popular religion in China
it originated in India and was unknown to the Chinese before the middle of first
century The translation of Buddhist scriptures into Chinese began in the Han dynasty
Many Buddhist concepts were new to the Chinese and there were no Chinese terms
expressing Buddhist concepts Xuan Zhuang (玄奘) the most influential figure in the
translation of Buddhist scriptures developed important translation techniques like
amplification omission borrowing and transliteration all effective methods to
introduce Buddhist foreign concepts into Chinese 24 Linguistic adjustments for 24 Xuanzhuangrsquos theory of the Five Untranslatables (五種不翻) or five instances where one should
transliterate (1) Secrets tuoluoni 陀羅尼 a Sanskrit curse (2) Polysemy baojia 薄伽 for a Sanskrit
word that has 6 meanings comfortable flourishing dignity name lucky esteemed (3) None in China
TRANSLATION AS CULTURAL TRANSFER
51
conceptual assimilation were made and with the gradual integration of the translated
texts into the Chinese language Buddhist concepts have now become an inseparable
part of Chinese culture This would not have happened if the domestication approach
had been adopted for the obvious reason that domestication would have turned
foreign Buddhist concepts into indigenous Chinese ones leaving Chinese culture
intact without incorporating Buddhism Examples of foreignization abound in the
history of translation not only in China but also in other parts of the world Whenever
a culture is transferred from one language to another there is always a need for
conceptual adjustment which invariably results in the foreignization of the importing
language The translation of the common law into Chinese is simply one such case
223 Metalinguistic Devices and Cultural Transfer in Legal Translation
As has been noted the primary aim of legal translation in the context of bilingual
and multilingual legislation is to prepare different language versions of one and the
same law This means that they must convey the same legal meaning Thus semantic
equivalence is presupposed by all bilingual and multilingual legislation systems
The term ldquoequivalencerdquo has been used in the literature to define successful
translation or to describe the ideal result of translation 25 and the concept of
yanfu tree 閻浮樹 a kind of tree that does not grow in China (4) Deference to the past Anouputi (阿
耨菩提) for a special kind of knowledge This transliteration is an established usage (5) To inspire
respect and righteousness banruo 般 若 (Prajna) instead of ldquowisdomrdquo ( 智 慧 )
(httpenwikipediaorgwikiChinese_Translation_Theory accessed on May 5th 2007)
25 Various definitions of translation given by translation theorists based on the notion of
ldquoequivalencerdquo are as below
TRANSLATION AS CULTURAL TRANSFER
52
equivalence has been variously defined in terms of functional equivalence conceptual
equivalence semantic equivalence formal equivalence dynamic equivalence lexical
equivalence syntactic equivalence textual equivalence and pragmatic equivalence
Since legal translation is primarily concerned with the translation of legal concepts it
is ldquoconceptual equivalencerdquo or ldquosemantic equivalencerdquo (sameness in legal meaning)
that we have to achieve Conceptual equivalence requires that different language
versions of the law must convey the same legal concept(s) in question Doubts have
been raised as to whether conceptual or semantic equivalence can be achieved If it
could be shown that semantic equivalence cannot be achieved then all bilingual and
multilingual legislation systems would be groundless Thus it is of paramount
importance in legal translation that semantic equivalence can be shown to be possible
Language can be viewed as a system of symbols codes or signs As is well
known Saussurersquos dualism of the signifier (sound image or the word) and the
signified (concept) was developed by Peirce by way of a triadic relationship of the
sign and subsequently by Ogden and Richards by way of the semantic triangle26
According to the semantic triangle words are the means of representing concepts in a
Translation may be defined as follows the replacement of textual material in one language (SL)
by equivalent material in another language (TL) (Catford 1965 p20)
Translating consists in reproducing in the receptor language the closest natural equivalent of the
source-language message (Nida and Taber 1969 p12)
[Translation] leads from a source-language text to a target-language text which is as close an
equivalent as possible and presupposes an understanding of the content and style of the original
(Wilss 1982 p62) 26 The Semantic Triangle is a model showing the relationship between the words the concepts and the
referents that words represent The semantic triangle by adding ldquoreferentrdquo to Saussurersquos dualism of
word and concept contains three elements (a) symbol (signifier)mdashword being perceived (b) reference
(signified)mdashthe concept of what being perceived (c) referent (object)mdashthought or thing being
perceived
TRANSLATION AS CULTURAL TRANSFER
53
language no matter whether such a concept is directly coupled with a referent in
reality or not In other words any word has a referent in reality however indirectly
and all concepts can be described by their manifestations in reality If a word refers to
a certain object directly perceivable in reality then we have a typical case of the
semantic triangle of word concept and referent If a word denotes an abstract concept
which has no direct referent in the physical world the referent in the semantic triangle
may not be directly perceivable in reality but still can be explained by means of
observable objects
Similarly the referents of legal concepts can be directly or indirectly described
by their manifestations in reality This is especially true due to the nature of the law
as Sin (1992) points out
Law is a set of rules which prescribe and regulate human behaviour Legal systems differ only
in the content but not in the nature of such rules hellip One important property of human behavior
is that it is publicly observable Accordingly all legal systems can be understood in the light
of human behavior observable in identifiable circumstances and conditions hellip Human
behaviour as well as the circumstances and conditions in which it is observed can be
described with sufficient precision in any language (p 95)
In legal translation the translated version should prescribe the same behaviour as
does the original version ldquonot only by virtue of its legal authority but also by virtue of
its legal meaningrdquo (Sin 1992 p 95) The translated version can acquire the same
legal meaning as the original version only when the legal meaning of the translated
version is construed in the light of the semantic reference scheme of the original
TRANSLATION AS CULTURAL TRANSFER
54
version Sin (1992) goes on to analyze the goal of legal translation in terms of
semantic equivalence
although no two texts in different languages are identical in all aspects of meaning semantic
equivalence hellip can still exist between them if they are compared with reference to the same
aspect of meaning hellip (and) should be defined in terms of sameness in legal meaning which is
evidently the most relevant aspect of meaning they should have in common (p 96)
One may still ask In what way can semantic equivalence be achieved in
translation when the languages in question do not contain concepts that are exactly the
same or when the meanings or concepts of the source language which we generally
refer to as cultural concepts are different from or even absent in the target language
The answer to this question can be found in Feyerabendrsquos (1987) insightful
observation on Evans-Pritchardrsquos translation of the Azande language When
translating the Azande word ldquombismordquo the translator decided to translate it as ldquosoulrdquo
in English but this is not the end of it The translator added that ldquosoulrdquo in English
implies life and consciousness while ldquombismordquo in Azande covers a collection of
public or ldquoobjectiverdquo events The significance of the translatorrsquos note is fourfold First
it draws attention to the fact that the use of the word ldquosoulrdquo in itself constitutes a
problem Second it makes the word ldquosoulrdquo more suitable for expressing what Azande
people have in mind Third it redefines an English notion to accommodate elements of
a new concept Fourth it effects conceptual change ie cultural transfer at the
metalinguistic level (pp 267-68) Feyerabend sums up all these points in a well
formulated general principle of translation ldquoSuccessful translations always change the
medium in which they occurrdquo (p 266) The importance of this principle can never be
overstated for it shows that any successful transfer of culture must change the
TRANSLATION AS CULTURAL TRANSFER
55
importing language and that such transfers must be effected at the metalinguistic
level
The concept of metalanguage is not new in translation studies 27 Before
Feyerabend Roman Jakobson had pointed out that the metalinguistic function was
one of the major functions of language He noted
A faculty of speaking a given language implies a faculty of talking about this language Such a
lsquometa-linguisticrsquo operation permits revision and redefinition of the vocabulary used cognitive
experience and its classification is conveyable in any existing language Whenever there is
deficiency terminology may be qualified and amplified by loanwords or loan-translations
neologisms or semantic shifts and finally by circumlocutions (Quoted in Chesterman 1989 p
56)
As can be seen even if the concept a certain word designates exists in one
language but not in another the referent (direct or indirect) the word and concept
stand for can always be replaced by a word in another language by way of linguistic
adjustment28 in the form of a loan word a descriptive phrase or a newly coined word
In the case of translation the various metalinguistic devices adopted by the translator
27 Gombert (1992 p 1) discussed the definition of the term metalanguage
In a more general sense the word metalanguage is used to refer to the language where natural or
formalized (as in logic) which is itself used to speak of a language More precisely as
Benveniste (1974) emphasizes this word refers to a language whose sole function is to describe
a language 28 In this study we use the concept of ldquoformrdquo only in the sense of ldquolinguistic formrdquo that is as the form
of a language sign in opposition to its meaning As meaning is the property of a language which is
manifested through language and embodied in language For any existing language sign there are two
sides of it the form and the meaning of it
TRANSLATION AS CULTURAL TRANSFER
56
are often explicitly stated in hisher explanatory notes And it is at the metalinguistic
level that conceptual semantic equivalence is achieved A word in the target
language is defined as the equivalent for its counterpart in the source language29 That
is to say two different signs are made to denote one and the same concept
Thus understood foreignization is simply a metalinguistic operation whereby
cultural transfer is effected In this study conceptual semantic equivalence is not
understood as the one-to-one correspondence between languages which is absent as
languages stand but as a semantic relationship at the metalinguistic level Put simply
conceptual semantic equivalence is not found but created It results from a most
common-or-garden metalinguistic operationmdashmaking two things stand for one and
the same concept It should now be clear how different language texts produced by
translation can convey the same legal meaningmdashthey are simply made to do so
29 In trying to solve the problem of translation equivalence Neubert postulates that from the point of
view of a theory of texts translation equivalence must be considered a semiotic category comprising a
semantic syntactic and pragmatic component following Pierces categories These components are
arranged in a hierarchical relationship where semantic equivalence takes priority over syntactic
equivalence and pragmatic equivalence conditioning and modifying both the other elements
Chapter 3
The Concept of Legal Culture in Legal Translation
31 Previous Studies of Legal Culture
311 Law and Culture
Since cultural transfer as foreignization is best exemplified in legal translation it
will be helpful here to explore the concept of legal culture with practical reference to
the translation of the common law into Chinese The study is not confined to the
complete comprehension of a legal discourse which contains unstated legal
conventions (cultures) embedded deep in the linguistic form It concerns itself more
with how unstated legal elements can be transferred in legal translation If legal
culture is taken to mean culture in relation to law then gaining insight into the
concept of legal culture will enable us to understand the relation between culture and
law
The concept of culture is plagued with definitional problems A number of
anthropologists have offered useful accounts of the concept of culture Raymond
Williams Culture and Society (1961) is often credited with helping to instigate what
is now known as cultural studies In an attempt to identify the concepts and
definitions of culture the eminent anthropologists Alfred Kroeber and Clyde
Kluckhohn (1963) approached culture as a traditional crystallization with traditional
values at the centre of the culture Next translation theorist Peter Newmark (1988)
gave a rather comprehensive definition of culture ldquoas the way of life and its
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 58
manifestations that are peculiar to a community that uses a particular language as its
means of expressionrdquo (p 94)30 Legal scholar D J Black (1976) defined culture as
ldquothe symbolic aspect of social life including expressions of what is true good and
beautifulrdquo (p 61) It encompassed such things as ldquoideas about the nature of realityrdquo
ldquoconception of what ought to bersquo and ldquoaesthetic life of all sortsrdquo (p 61) For Black
culture included all kinds of ideas concepts and beliefs as manifested in language
behaviour and lifestyle A more recent definition from Bates and Plog (1990) states
that culture is ldquothe system of shared beliefs values customs behaviours and artifacts
that the members of society use to cope with their world and with one another and
that are transmitted from generation to generation through learningrdquo (p 7)
Law is just one part of culture that actively contributes in the composition of
social relations Sarat and Kearns (1999) pointed out that ldquowith the growing attention
to legal consciousness and legal ideology in socio-legal studies legal scholars have
come regularly to attend to the cultural lives of law and the ways law lives in the
domains of culturerdquo (p 5) Black (1976) defined law as ldquogovernmental social
controlrdquo Social control was in turn defined as ldquoresponse to deviant behaviourrdquo of
every kind including ldquolaw etiquette custom ethics bureaucracy and the treatment of
mental illnessrdquo (p 9) The concept of law occupies a central place in Blackrsquos theory
In his view the grown tree of cultural tradition imposes core legal meanings that can
be traced down to historical roots Conventionally the study of law with relation to
culture is the study of a complex whole which includes knowledge belief art morals
30 Newmark further classified culture into five categories Ecological culture such as plants animals
winds landscape etc material culture such as food clothes transport etc social culture such as work
and leisure culture of organizations customs activities procedures concepts and culture of gestures
and habits (p 83)
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 59
legal custom and any other capabilities and habits acquired by man as a member of
society
Previous studies of legal culture have thus exhibited multiple perspectives and
approaches Research interests in legal culture arise mainly from inter-disciplinary
studies especially comparative law and social science although the range of subjects
judged relevant to the concept of legal culture varies from study to study Because
sociologists comparativists and other theorists have very different ideas about what
constitutes ldquolegal culturerdquo many different views and practices are subsumed under the
same concept It is a concept that is frequently employed as a convenient cover term
for a large number of phenomena the general status of law in a society specific
structures of law opinions with regard to law by the general public or legal
professionals particular practices or behaviours of legal institutions or legal
professionals Legal culture has often been analyzed in its relation to particular
countries and legal systems There is an extensive literature on the legal culture of
specific countries In addition there are numerous works (especially works by
scholars of comparative law) discussing and analyzing the distinctive characteristics
and cultures of the two main legal systems the civil law and the common law31 The
concept of legal culture seems to be an all encompassing referential and explanatory
instrument for all relevant theoretical studies As is the case with the concept of
culture a common understanding of legal culture seems impossible to achieve In
31 Scholars of comparative law may be in a better position to analyze different legal cultures between
civil law and the common law if they acknowledge the fundamental and profound distinctions between
these two major legal traditions There is an inclination to treat them as homogenized in spite of the
fact that they operate in different jurisdictions The characteristics of the common law and civil law
have often been discussed with special reference to the development of legal tradition again a process
of crystallization
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 60
addition it is hard to engage in any analysis without asking ldquolegal culture in what
sense of the term or in relation to what kind of research subjectrdquo Therefore instead
of falling into the trap of defining legal culture as some kind of unitary force we
intend to describe and analyze the substantive contents that constitute the culture of
law with regard to legal translation studies We will begin with a review of how the
concept of legal culture has been conceived in previous studies
Since the notion of culture is hard to define due to its multifarious interpretations
in the literature there is no standard definition of culture However many scholars
accept the postulates provided by Bates and Plog (1990) as a working version Culture
is thus defined here sociologically as the typical ways of living built up by a people
including the beliefs and attitudes which support them Culture under such a
treatment finds its expression on two levels (1) shared beliefs and values conceived
by particular members of society and (2) the customary behaviours they practice
Studies relating to legal culture cover many aspects and it is not necessary for our
present purpose to give a comprehensive account of all those extended explorations
Rather we need is to isolate the variables that legal culture can refer to and then to
identify among these variables which sense of legal culture legal translation has to
deal with Some of the major variables for this concept of legal culture are
- Shared attitudes values and opinions (Friedman 1975 p 76)
- Legal ideology (Cotterell 1997 p 22)
- Shared norms and modes of thinking (Ginsburg 2003 p 1337 )
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 61
- Legal studies legal education and legal theory addressing legal conceptions
policies and reasoning and education (Atias 1986 pp 1118-9 )
- Legal reasoning that cultivated a series of principles of the case law (Atiyah
(1987 p 323)
- Legal principles best represent the spirit of rule of law (Kuan 1997 pp
187-205)
- Attitudes and beliefs lie in legal tradition (Pound1937 Merryman 1985)
- ldquoLaw in bookrdquo ldquolaw in actionrdquo ldquoelite legal consciousnessrdquo and ldquolegal
behavioursrdquo (Blankenburg amp Bruinsma 1994 pp 39 42)
- ldquoMentalitiesrdquo ldquomode of thinkingrdquo ldquothe method of reasoningrdquo and ldquolegal
trainingrdquo (Curran 1998 p 70)
As this list suggests the concept of legal culture in general discussions refers to
such varied elements that the variables mentioned need to be categorized if they are to
assist our further analysis Just as with culture in the broad sense the concepts of legal
culture discussed by scholars can be categorized in two ways Legal culture may refer
to peoplersquos conceptions of law alone or to both peoplersquos conceptions and their specific
practices of law32
32 To select a term that could best cover the numerous parameters in relation to the totality of peoplersquos
thought referred to in extensive studies by scholars from different disciplines we considered of
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 62
312 Legal Culture as Conceptions of Law
Viewing legal culture as conceptions widely held by people within a society
country or legal system theorists tend to concentrate on the thought-related
expression of legal culture In an attempt to bring out the idea that particular legal
systems operating in a social context have cultural and ideological presuppositions
and implications Friedman (1977) distinguished between ldquointernal legal culturerdquo and
ldquolay legal culturerdquo after giving his general definition of legal culture ie ldquoattitudes
values and opinions held in society with regard to law the legal system and its
various partsrdquo He observed that such ldquoattitudes values and opinionsrdquo could be
divided into two sets that of the ldquogeneral publicrdquo and ldquothat of lawyers judges and
other professionalsrdquo (p 76) For Friedman (1997) the concept of legal culture was a
useful way to categorize a range of phenomena in the field of law (p 33) This
position was first criticized by Cotterrell (1997) who held that it is impossible to
develop a concept of legal culture with sufficient analytical precision and that the
concept works more as an ideal than as a set of variables He basically rejected the
concept of legal culture as a way of identifying the exact relationship existing among
social phenomena such as characteristic institutions and patterns of thought and belief adopting the term ldquoideologyrdquo as proposed by Cotterrell (1997 pp 21-22) However the term
ldquoideologyrdquo has been notoriously tainted with political implications and is therefore misleading We thus
finally decided to use the more neutral and general term ldquoconceptionrdquo which serves our purpose of
generalizing the many variables pertaining to totality of thought (as distinct from totality of practice or
behaviour) that legal culture can refer to The definitions of ldquoconceptionrdquo in the OED online dictionary
are as follows (a) The action or faculty of conceiving in the mind or of forming an idea or notion of
anything apprehension imagination (b) The forming of a concept or general notion the faculty of
forming such pl Thoughts meditations courses of thought (c) That which is conceived in the mind
an idea notion (d) An opinion notion view (e) Something originated in the mind a design plan an
original idea (as of a work of art etc) a mental product of the inventive faculty (OED Online
Dictionary httpdictionaryoedcom accessed on August 2007)
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 63
He viewed the concept of legal culture as merely a convenient concept to ldquorefer
provisionally to a general environment of social practices traditions understandings
and values in which law existsrdquo (pp 21-22) Cotterrell thus preferred to use a more
specific notionmdashlegal ideology For him this represented legal doctrines ldquobeliefs
attitudes and valuesrdquo that ldquocan be translated into regulatory practicesrdquo (p 22)
Friedman (1997) contended that while vague and difficult to define there are many
fundamental concepts like ldquostructurerdquo or ldquosystemrdquo which constitute the building
blocks of social science (p 33) The concept of legal culture which he regarded as
falling into this class is useful for categorizing a range of phenomena in the field of
law (p 33) In reaction to Cotterellrsquos proposal to substitute the notion of legal culture
for that of legal ideology Friedman observed that legal ideology fell into his
classification of internal legal culture an aspect of culture that finds particular
resonance with scholars and legal professionals many of them have attached great
importance to ldquolegal ideologyrdquo especially legal doctrines (p 38) Friedman then
pushed the centre of his study of legal culture to what he called ldquolayrdquo legal culture (p
39)
Following Friedmanrsquos dichotomy between external and internal legal culture
Ginsburg (2003) noted that legal culture as characterized by legal scholars could be
defined in two ways On the one hand legal culture could be viewed in terms of its
intimate association and active interaction with a social and national culture
(Friedmanrsquos external legal culture) On the other hand legal culture could be regarded
as the internal legal culture featuring the ldquoshared normsrdquo and mode of thinking of
legal professionals that resulted from their common training (p 1337) Farrar and
Dugdale (1990 p 246) preferred to confine the concept of legal culture to internal
legal culture since they shared Watsonrsquos view that ldquolaw is more an expression of the
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 64
culture of the lawmaking elite rather than that of society at large and that the variety
of interests and attitudes possessed by such elites may thwart attempts to generalizerdquo
Although Friedmanrsquos dichotomy of legal culture makes it easier to further explore the
nature of legal culture it is undeniable that an essential substance of any legal system
is the culture of the legal professionals
Atias (1986) observed from the perspective of American law that legal culture
had been a well received and commonly used term among American legal researchers
The notion of American legal culture itself however still lacked conceptual precision
and deserved ldquobetter treatmentrdquo In view of this he proposed that ldquothe notion of
traditional scholarly orderrdquo as a springboard for the study of the notion of American
legal culture (p 1122) Atias believed that legal culture was based on the rich history
of legal studies and legal education while legal studies encompassed various legal
theory addressing legal conceptions policies and reasoning and education (pp
1118-9) Cultural consistency and enrichment came from the progressive
sedimentation of continuous efforts jointly made by the legal profession especially
lawyers jurists and judges to uphold those legal principles that finally ldquosurvive the
most conclusive criticisms and preserve their appealrdquo (p 1134) Atias concluded that
ldquothe study of the legal culture is thus the study of its progressive and never finished
formationrdquo (p 1135) In similar vein Atiyah (1987) held that the legal culture of the
common law included legal reasoning that cultivated a series of principles of the case
law and consequently ldquoEnglish statute has traditionally been drafted in such detail that
it can be said to be a catalogue of rulesrdquo (p 323) As we shall see both legal theory
and legal reasoning are definitely a reflection of views and beliefs about law thus
putting law in a cultural context
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 65
In Mineshimarsquos (2002) view the notion of the rule of law was the foundation of
any given legal system or legal culture This notion was determined by the traditions
and attitudes such as the views on the role and functions of the state the law and the
legal system In other words legal culture consisted of the traditional attitudes
towards the role and functions of the state the law and the legal systems (p 74) Kuan
(1997) also considered the idea of rule of law as an integral part of legal culture She
held that the legal culture of the common law lay in the concept of the rule of law
which found its expression in various legal principles (pp 187-205) For her the
seven most important common law principles embodied in the concept of rule of law
were ldquono law no crime equality before law law binds the ruler judicial
independence inborn rights obligations over rights and presumption of innocencerdquo
(p 195)33
If legal culture is regarded as peoplersquos conceptions of law it is appropriate to
probe its historical roots and philosophical foundation to search out how and where
legal tradition comes into play thus affirming that legal tradition is the basis of legal
culture Pound (1939) highlighted the concept of legal tradition when comparing the
characteristics of the common law and civil law For him the legal culture of the
common law contained those distinct traits derived from its legal tradition Another
33 Kuan also incorporated Betty Tsursquos argument that ldquothe concept of the rule of law is represented by
three items nullum crimen sine lege exercise of arbitrary power by the police and equal opportunity
before the courtsrdquo (p 190) Kuan gave a more detailed description of the rule of law ldquothe rule of law
is deconstructed into four theoretical aspects legal freedom legal equality rights-based autonomy of
law and due process Legal freedom meaning freedom from arbitrary government is defined by the
principle of lsquono law no crimersquo Legal equality consists of two principles the general principle of
lsquoequality before lawrsquo and the specific principle of lsquolaw binds the rulerrsquo The complex aspect of legal
autonomy is expressed by three principles lsquojudicial independencersquo lsquoinborn rightsrsquo and lsquoobligations
over rightsrsquo The last aspect of due process is defined in terms of the principle of lsquopresumption of
innocencersquo (pp 202-03)
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 66
American comparativist Merryman (1985) gave legal tradition a more detailed
description ldquoa legal tradition (as opposed to a system) is a set of deeply rooted
historically conditioned attitudes about the nature of law about the role of law in the
society and the policy about the proper organization of the operation of a legal system
and about the way law is or should be made applied and studied perfected and
taughtrdquo (p 2) For Merryman the shared cultural traits of different legal systems have
their origin in legal tradition in other words legal tradition is what endows them with
those shared cultural traits In this sense legal culture comes from legal tradition
However many have contended that the difference between legal tradition and
legal culture is merely one of emphasis Legal tradition signifies a historical
perspective while legal culture refers more to the anthropological ethnic or
socio-political perspective of law As we shall see legal culture is regarded as
peoplersquos conception of law either in its contemporary manifestation or in its historical
growth ie legal tradition The term ldquolegal culturerdquo is concerned more with
theoretical or ideological opinions than with actual behaviours or practices
313 Legal Culture as Both Conceptions and Practices of Law
For other scholars legal culture not only refers to what is conceived in peoplersquos
mind but also to their behaviours and practices with respect to law In a comparative
research on differences between the common law and civil law Curran (1998)
acknowledged that there were fundamental differences between the common law and
civil law with respect to ldquomentalitiesrdquo ldquomode of thinkingrdquo ldquothe method of reasoningrdquo
and ldquolegal trainingrdquo that can be considered as composing elements of legal culture (p
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 67
70) Curran then analyzed the ldquoattributesrdquo that were ldquocharacteristic of common-lawrdquo
legal culture ldquobut uncharacteristic of civil-lawrdquo legal culture by observing that the
common law was ldquoa law defined in terms of past judicial decisionsrdquo and evolved with
the legal rules from ldquoprior judicial decisionsrdquo while the civil law attached more
importance to codification (pp 71-75) Curran also noted that ldquothe prominence of the
proceduralrdquo was another distinct feature in common law legal culture (p 81) Most
importantly common law legal professionals had been habitually skilful in ldquoreasoning
by analogyrdquo and produced ldquoan accumulated body of arguably similar and dissimilar
prior casesrdquo and ldquoconsequently statutory norms are lain on a Procrustean bed of
precedents even when they have never yet been subject to adjudication in the relevant
jurisdictionrdquo (p 83) Curran then concluded that ldquothe significance of the common law
thus resides in the case law even where the common-law court is applying a statute
and even where the statute is newrdquo (p 83)
Blankenburg devoted many years and much literature to the study of legal
culture Blankenburg amp Verwoerd (1988) observed that there were two conceptions of
legal culture One conception treated law as a system consisting of rules and
principles The other viewed legal culture not only as the above rules and principles
but also as the institutional practices attitudes and behaviour of legal actors (p 10)
Blankenbrug amp Bruinsma (1994) reinforced the above view in another study of Dutch
legal culture They identified Dutch legal culture at four levels (1) ldquolaw in booksrdquo (2)
ldquolaw in actionrdquo (3) legal behaviours such as litigation preferences and (4) ldquoelite legal
consciousnessrdquo (pp 13-14)34 In another comparative work Blankenburg (1998)
34 In giving a detailed description of ldquolaw in booksrdquo Blankenburg (1998) held that it ldquocomprises the
body of substantive as well as procedural law that is considered legally valid helliprdquo As for the concrete
substances of ldquolaw in actionrdquo Blankenburg (1998 p 13) claimed that it ldquois channeled by the
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 68
investigated the patterns of legal culture by comparing the legal institutions with those
of Germany He argued that legal culture was ldquocharacterized by indicators of
institutions as well as behaviourrdquo (p39) Acknowledging that the conception of legal
culture was a comprehensive one he extended Friedmanrsquos ldquooperational definitionsrdquo of
legal culture ie attitudes values and beliefs to ldquointerrelationship of various levelsrdquo
that were more suitable for comparative and descriptive studies (p 40) These levels
are (1) ldquopatterns of legal behaviourrdquo such as litigation behaviour (2) ldquopatterns of
legal consciousnessrdquo (3) patterns of institutional behaviour such as ldquothe legal training
the composition of the legal profession the organization of courts and the
infrastructure of access to themrdquo (p 41) Blankenburg held that patterns of legal
culture (the above three levels) could serve as indicators when comparing legal
cultures We can see that the above researchers are not satisfied with limiting the
concept of legal culture merely to conceptions of law held by people Moreover they
employ the concept of legal culture to refer to a wide range of phenomena such as
litigation preferences in a society the practice of legal training and education and
shared behavioural patterns among legal professionals For our present purpose we
will consider legal culture less as a universal value system that directs peoplersquos
actions and more as a variety of conceptual instruments for classifying attributes of
peoplersquos conceptions and practices We will additionally focus more on those aspects
of legal culture which have a direct bearing on our inquiry into legal translation
institutional infrastructure of the legal system Two important elements of this infrastructure are the
judicial court system and the legal profession In their shadow para-judicial institutions may be
substitutes for the formal court system and the legal profession helliprdquo (p 13)
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 69
32 Clarification of the Concept of Legal Culture
Concerning the actual relevance of legal culture to legal translation we would
like to note the following First despite the denunciation of translation as linguistic
transcoding in arguments for a culturally oriented approach against a linguistically
oriented approach in general translation theory (Snell-Hornby 1990 pp 79-85)
translation remains by nature an act of linguistic transcoding and the proposition of
translation as cultural transfer actually represents one pole of the interpretation of
cultural transfer in translation ie cultural transfer as domestication Secondly
cultural transfer as foreignization is best exemplified in legal translation since the goal
of legal translation is to reproduce a legal text in the target language which has the
same meaning as the source text while also transferring the legal culture of the source
text into the target language text The legal translator is bound to achieve semantic
equivalence in cultural transfer foreignization Thus concepts like linguistic
transcoding cultural transfer semantic equivalence and legal culture deserve serious
treatment as these notions with their interpretations determine how we think about
legal translation and also shape the specific theoretical framework we construct in the
special context of translating the common law into Chinese We earlier clarified the
concepts of linguistic transcoding cultural transfer and semantic equivalence and we
have just investigated the concept of legal culture and its various interpretations in the
previous section As we do not wish to generalize and make broad statements of legal
culture that might crumble under logical analysis we must now clarify the concept of
legal culture insofar as it relates intimately to legal translation
Let us first consider the process of legal translation illustrated by the following
diagram
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 70
(1) SL (Language of Source Legal Text) TL (Language of Target Legal text)
Legal culture
embedded in
source text
Transference of
the legal culture
Linguistic transcoding
Which
sense of legal
culture could
find
representation
in the source
legal text
-Legal ideology
-Legal studies legal education
and legal theory
-Shared attitudes values and
beliefs
-Shared norms and modes of
thinking
Variations of
the concept of
legal culture
in literature
Which
sense of legal
culture could
find
representation
in the target
legal text
ST
(Source
Text)
TT
(Target
Text)
Language of
the source
legal text
Language of
the equivalent
legal Text
(2) Assumed SC (Culture of the Source Text) SC (Culture of the Source Text)
Figure 32 Process of Legal Translation
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 71
The first plane depicts the process of linguistic transcoding where the legal translator
represents the source legal text with the equivalent legal text in the target language In
other words the two end products of legal texts should convey the same legal
meaning The second plane depicts the process of transferring the legal culture We
note that during the translation process what should be maintained intact is the
source legal culture This point is emphasized as it echoes with our previous
observation that cultural transfer as foreignization is the transfer of the source culture
into the target language instead of naturalizing the source culture with the
overwhelming conventions of the target culture Obviously enough what could be
transferred are the variables that have the most direct and intimate bearing on the
language of the source legal text since the process of foreignization is inseparably
bound up with the process of achieving conceptual semantic equivalence Resuming
our task of finding the legal culture embedded in source text we also ask in figure 32
which sense of legal culture could find representation in the legal text We recall that
the concept of legal culture as examined in the previous section is employed to refer
to a variety of objects that can be grouped into two major categories legal culture as
peoplersquos conceptions of law or as both conceptions and practices In legal translation
the legal translator is faced with the substantive legal textsmdashlaws in their written
form
Take the example of tort law in Hong Kong Although Hong Kongrsquos tort law has
its origin in English tort law some of the legal practices of judges and lawyers may
vary from other common law jurisdictions Legal professionals in Hong Kong may
share the same knowledge and belief in the law of tort ie ldquotort in booksrdquo but what is
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 72
the status of ldquotort in actionrdquo35 It is interesting to note that for example courts in
Hong Kong are reluctant to use actuarial evidence in the calculation of damages in the
tort litigation In consequence lawyers are also cautious on whether to provide
actuarial evidence in the court Such practice and behaviour by legal professionals
with regard to tort litigation in Blankenburgrsquos (1994 pp 13-4 amp 1998 pp 39-41)
view was also evidence of the legal culture However it is impossible for the legal
translator to deal with legal culture in that sense as the final encounter of the legal
translator is the legal textmdashthe source language that legal culture is embedded in
Lloyd (1964) thought that the great achievement of the human language especially
the language of law lay in its capacity to create ldquogeneral concepts which provide the
essential tools of human reflectionrdquo (p 285) In explaining the conceptual thinking in
the common law Lloyd remarked
For instance if we take the rules of the criminal law relating to such matters as murder and theft
it is quite true that these are in themselves legal concepts which only have meaning in the
context of legal rules which go to form a legal system We can only understand what is meant by
murder by acquainting ourselves with the legal constituents of this offence and how these
operate in the legal system hellip The law hellip needs to conceptualize these and other related ideas
much more precisely before it can operate a system of criminal law in a rational and systematic
way (pp 289-90)
As Farrar and Dugdale (1990 p 246) put it ldquolaw is more an expression of the
culture of the lawmaking elite rather than that of society at largerdquo the conceptual
35 Here we borrow Blankenburgrsquos idea We use the expression ldquotort in booksrdquo to refer to the body of
substantive and procedural tort law In similar vein we use the expression ldquotort in actionrdquo to
characterize the legal practice and behaviour of the judicial court system and the legal profession
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 73
thinking is that of legal professionals rather than that of the general public In
translating the law in books therefore the legal translator should have an adequate
knowledge of the conceptual thinking of legal professionals and transfer this into the
target language Similarly legal culture as viewed in this study refers to the
conceptual thinking about the law shared by legal professionals To sum up briefly
the above schematic framework of exemplification has the merit of simplicity but is
merely the skeleton on which we must build This endeavour may lead to conceptual
refinements and help to narrow down the concept of legal culture to fit our analysis of
legal translation We proceed in the next section to pin down the substantive contents
of legal culture with which the legal translator must cope in translating the common
law into Chinese
33 The Legal Culture of the Common Law
Identification of the concept of legal culture as the conceptual thinking shared by
legal professionals leads us in the present study to a further question what precisely
are these legal conceptions shared by the legal professionals as far as the common law
is concerned Since the culture of the common law as it stands is representative of its
legal tradition we need to look first at the development of the culture of the common
law from a historical perspective ie the common law tradition before we can begin
to analyze its substantive construction36
36 Theorists of comparative law are inclined to use the common law tradition vs civil tradition to
compare between the worldrsquos two major legal systems Comparative studies of the common law and
civil law tend to generalize about the characteristic differences between the two legal systems as if their
traditional features were crystallized even if they do acknowledge that some constructs are peculiar to a
single jurisdiction
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 74
The common law is the system of law that prevails in England and in countries
colonized by England The very name is derived from the medieval theory that the
law administered by the kings courts represented the common custom of the realm
The distinctive feature of the common law is that it represents the law of the courts as
expressed in judicial decisions The grounds for deciding cases are found in
precedents provided by past decisions as contrasted to the civil law system which is
based on statutes and prescribed texts It emphasizes the centrality of the judge in the
gradual development of law and the idea that law is found in the distillation and
continual restatement of legal doctrine through the decision of the courts The
common law consists of the rules and other doctrine developed gradually by the
judges of the English royal courts as the foundation of their decisions and added to
over time by judges of those various jurisdictions recognizing the authority of this
accumulating doctrine This concept is embodied in the doctrine of stare decisis
(ldquostanding by decisionsrdquo) that emphasizes the importance of legal precedents
established in previously settled cases The establishment of the common law gives
rise to leading concepts like ldquopersonsrdquo ldquorights and dutiesrdquo and ldquoownership property
and possessionrdquo (Lloyd 1964 pp 300-25) The common laws unity has been
attributed to the fact that law is grounded in and logically derived from a handful of
general principles and that whole subject areas such as contract or tort are
distinguished by common principles or elements that fix the boundaries of each
subject area
The common law tradition shapes the construct of the common law serving as its
philosophical and practical foundation Since the present study focuses on the
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 75
conceptual expression of legal culture in general we will concentrate on the
conceptual features of the common law rather than its practical features37
Let us first consider the translation of one fragment of the legislation of Hong
Kong found under the heading Apportionment of liability in case of contributory
negligence
Where any person suffers damage as the result partly of his own fault and partly of the fault of
any other person or persons a claim in respect of that damage shall not be defeated by reason of
the fault of the person suffering the damage but the damages recoverable in respect thereof
shall be reduced to such extent as the court thinks just and equitable having regard to the
claimants share in the responsibility for the damage (Amended LN 337 of 1989) (Cap 23
Sect 21)
The Chinese translation is as follows
條文標題有共分疏忽時法律責任的分攤
如任何人受到損害部分原因是該人本人的過失而部分原因是他人的過失則就該損害
提出的申索不得因受損害者有過失而敗訴但就該申索可追討的損害賠償則必須減少
而減少的程度是法院在顧及申索人對損害應分擔的責任後認為是公正與公平的款額
In the light of figure 32 the legal texts are two linguistic products directly linked
by semantic equivalence Let us explain the thinking process behind such end
37 By practical features we mean the characteristic behaviour and practice of legal professionals and
legal institutions such as how the legal training or education is performed how law is applied by
judges and lawyers etc
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 76
products When faced with the English legal text the legal translator seeks to extract
its meaning Clearly she needs to delve into the culture of the common law in order to
understand all the shades of meaning of the English legal text and produce a Chinese
legal text with the same meaning Here arises the real problem what exactly are those
cultural factors of the Common Law that she needs to pin down To understand the
whole world of culture behind every term we need to do legal research trying as
Vandevelde (1996) nicely put it to think like a lawyer We need to know the
subjective classifications the law addresses in the above example we must
understand that the ordinance belongs to an important branch of common lawmdashtort
law We then need to master the conceptual development of the specified law The
common law concept of tort is best defined as a civil wrong which the victim seeks
remedy for in the form of some kind of damages Examples of a tort would be assault
battery false imprisonment and negligence
Let us turn back to the substantive content of the ordinance mentioned above
The ordinance deals with one defence of negligence contributory negligence In
common law the principle of contributory negligence takes into account the relative
degrees of fault between the plaintiff and defendant and attempts to adjust award of
damages accordingly In the light of our categorization of the concept of legal culture
the above discussed legal concepts and legal principles embedded in the ordinance
reflect the shared beliefs of the legal professionals in the common law and fall under
the category of peoplersquos conceptions of law
The common law then is built on a series of traditionally well-formed legal
concepts which belong to different conceptual classifications such as tort equity
contract etc if legal tradition is regarded as the deeply rooted historically formed
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 77
attitudes towards law38 Practically legal principles in each subject of the law have
been developed into concrete and coherent constructions that make up the common
law we see before us today Therefore the common law is an accumulation of
deep-rooted historically moulded conceptual thinking shared by legal professionals
and reflected in two aspects legal concepts and legal principles Together these make
up the substance of the common lawrsquos legal culture
34 The Legal Culture of Traditional and Modern Chinese Law
As noted in section 222 the act of translating the common law into Chinese was
at the same time creating a variety of the Chinese language namely common law
Chinese as Chinese had not developed as a language to express the common law
before its translation Historically the development of Chinese legal language
represents the evolution of Chinarsquos legal culture Thus an investigation of the legal
culture of traditional and modern Chinese law serves two purposes First it will show
how the legal culture of traditional and modern Chinese law differs from that of the
38 Curran (2001 p59) also noticed this fundamental nature of the common law but instead of
conceptual ldquoclassificationrdquo she referred to conceptual ldquocategorizationrdquo Curran observed
hellip categorization is the process that underlies and determines differences in cultural contexts
Cultures differ from each other on the basis of the underlying categories in which members of
that culture place the empirically observed data categories whose own construction brings
certain observed data into sharp delineation hellip Thus cultural contexts result from sub-structural
patterns of classification in each culture hellip in contradiction to the Common Law system of
monetary remedies as the norm (normal remedies for breach of contract) and specific
performance the exception The Common Lawrsquos stark delineation between tort and contract law
is alien to the civil law with the concept of lsquofaultrsquo indispensable to civil law contract analysis
while unfamiliar in the Common Law contract analysisrdquo (pp 59 82)
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 78
common law Second it will show how Chinese has become an appropriate language
for expressing the common law through the evolution of Chinarsquos legal culture
Traditional Chinese law refers to the law operating in China up to 1911 when the
last imperial dynasty the Qing Dynasty fell Given its long history of feudal
monarchical and imperial regimes China can on this score be regarded as a stagnant
society Despite the stagnation of Chinarsquos political institutions traditional Chinese
law had undergone continuous development with a legal tradition distinct from the
two major legal traditions in the West ie the common law and the civil law The law
operating in different dynasties has its own peculiar features It is generally agreed
that the earliest authentic document on law in China is the Kanggao in Shangshu (尚
書康誥) in the Zhou Dynasty (c 1045-256 BC) Jiang (2003) held that the main idea
in Kanggao was the advancement of virtue (德) and the exercise of discretion in
punishment (明德慎罰) (p 1) However legalism (法家) prevailed and became the
central governing idea of the Qin Dynasty (221-206 BC) In this context Fa (法)
means law or principle which represents the political philosophy that upholds the rule
of law39 The Tang Code (618-906) in the Tang Dynasty was considered one of the
most important codes in Chinese history40 The central philosophy of law in the Tang
39 The main thoughts of legalism included the following the code must be clearly written and made
public all people under the ruler were equal before the law laws should reward those who obey them
and punish accordingly those who dare to break them (Jiang 2003 pp 15-31) Chen (1999) also noted
that
The bamboo strips found in 1975 contain strikingly sophisticated law and institutions from the
Qing Dynasty (221-206 BC) these legal arrangements perhaps represent the most advanced stage
of legal development of the time in the worldrdquo (p 6)
40 Johnson (1979) rightly pointed out the significance of the Tang Code in the history of traditional
Chinese law
Though based on earlier sources Trsquoang legislation has been more important historically than that
of any other dynasty hellip The great criminal code entitled The Trsquoang Code (Gu Tang Lu shu yi 故
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 79
Code was summarized as the advancement of li (一本于禮 ) (Jiang 2003
pp123-34)41 Chrsquou (1961) provided a definition of li
The li which may be defined as the rules of behaviour varying in accordance with onersquos status
defined in the various forms of social relationships were formulated by the Confucianists for this
purpose They are the means by which differences in status and role are maintained (pp 230-31)
Therefore a person in a different title and position was required to follow different li
Johnson (1979) also noted that li was the guiding principle for different classes
especially favoured ones (p 11) The Tang Code was considered the earliest model of
criminal law in China and had a strong influence on the development of criminal law
in other East Asian countries42 Johnson (1979) pointed out
hellip the Trsquoang dynasty is the earliest time from which we can obtain an accurate picture of the
range of Chinese criminal law during the imperial period and the structure of ideas that underlay
its provisions (p 8)
Thus the Tang Code had a far-reaching influence on the traditional Chinese law since
ldquoafter the fall of the Trsquoang dynasty the Code continued to dominate Chinese criminal
legislation until the end of the imperial periodrdquo (p 13)
唐律疏議 hereafter referred to as Code) hellip Though only the Code has survived in entirety we
know from historical sources as well as from still extant fragments that there was a large body of
written law in effect during the Trsquoang period There were four main divisions the Code (lu 律)
the Statutes (ling 令) the Regulations (ge 格) and the Ordinances (shi 式) (p5) 41 The term li (禮) is usually translated as rite ceremonies or propriety It is also translated as morality
(Johnson 1979 p 11) 42 Meijer (1976) noted some of the features of the Tang Code
The legal provisions were models and analogical application was allowed hellip The law itself also
often gave rules that a certain act should be similarly punished as an offence defined under a
different heading (p 4)
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 80
The Daqing Luumlli(大清律例) compiled in the Qing Dynasty was considered as a
rather comprehensive criminal code 43 Meijer (1976) compared the criminal
provisions in the Tang and Qing Codes to show the development of criminal law in
traditional Chinese law Meijer noted
The provisions were of a simple character categorical classification did not occur as the
evaluation of each act depended on the circumstances So there were not simply provisions for
intentional or unintentional homicide but special articles for parricide ldquoplannedrdquo homicide
homicide in a game by mistake ldquowithout authorityrdquo of more persons of one family of a senior
of the family and vice versa of the slave by the master and vv of an official in an affray by
means of poison or misused drug in hunting etc In the Ta-Chrsquoing Hui-tien the Collected
Institutes of the Chrsquoing dynasty they are classified as the six (ways of) homicide Liu-sha viz
homicide planned intentional in an affray by mistake by negligence and without authority (p
4)
We can see that in the course of the development of traditional Chinese law the focus
is largely on the penal systems and that the sovereignrsquos power to make laws is closely
intertwined with punishments
Since we are not intending to conduct a fully comprehensive analysis of the
development of traditional Chinese law our emphasis will be on the characterization 43 Meijer (1976) introduced the provisions contained in the Qing Code
The Code was divided into seven chapters viz the General Provisions (Ming Li) or Rules about
Names Definitions or Denominators of Offences containing rules about the punishments the ten
ldquoabominationsrdquo privileged classes offences by officials special classes of offenders
impardonable offences increase and reduction of punishment voluntary surrender to justice
indemnification joint offences contradictory provisions in the code desertion of soldiers
terminology The other six chapters contained the rules for the specific offences helliprdquo (pp 4-5)
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 81
of the legal culture of traditional Chinese law As noted in section 31 theorists
treated legal culture either as peoplersquos conceptions of law or the combination of
peoplersquos conceptions and practices of law As defined in section 32 legal culture in
this study refers to the conceptual thinking shared by legal professionals Since it is
generally agreed that traditional Chinese law was built on traditional Chinese
philosophy the thoughts shared by traditional Chinese philosophers were embodied in
traditional Chinese codes inherited from one dynasty to another with constant
supplement and revision by each subsequent dynasty Therefore the legal culture of
traditional Chinese law refers to the conceptual thinking of traditional Chinese
philosophers which found an embodiment in the law Let us look at the typical
features of the conceptual thinking embodied in traditional Chinese law and compare
them with the legal culture of the Common Law
It is generally agreed that Confucianism is one of the most important philosophies
manifested in the underlying traditional Chinese law Chrsquou (1961) remarked
The main characteristics of traditional Chinese law are to be found the concept of family and in
the system of classes Since these concepts are basic to Confucian ideology and to Chinese society
they are also basic to Chinese law as well (p9)
Though Confucianism provided the fundamental substance of traditional Chinese law
it was by no means the only philosophy influencing the development of traditional
Chinese law44 Chen (1999) noted
44 Chen (1999) pointed out
hellipthere is always a danger of over-generalization and over-simplification when dealing with a
tradition and a civilization spanning several thousand years In the case of China the traditional
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 82
Traditional Chinese conceptions of law have been largely influenced by writings of traditional
schools of philosophy Of these three have had a particular influence namely Ru Jia
(Confucianism) Fa Jia (Legalism) and Yin-Yang Jia with Confucianism being the dominant
force since the Han Dynasty (206 BC) (p 7)
As traditional Chinese law developed it came to incorporate two controversial
philosophies ie Confucianism and Legalism Chen (1999) observed that the central
view of Confucianism was ldquothe educational function of morality (li) in governing a
staterdquo (p7)45 Thus people were distinguished according to their status this should be
clearly defined so that people of different status could carry out their roles properly
and conform to approved patterns of behaviour Johnson (1969) held that the thought
of li promoted by Confucianism had at least three major impacts on the conceptual
thinking of traditional Chinese law First in traditional Chinese law ldquoa hierarchical
structure of superior-subordinate relationship is treated as natural and indispensable to
regulate human relationshipsrdquo Secondly it helped the sovereign ldquodevelop a legal
concept of rulership which is dovetailed with the concept of virtuous leadersrdquo Thirdly
ldquolaw is treated as rules of propriety rather than a device to protect individual rightsrdquo
(pp16-17)
society and legal culture are often described as lsquoConfucianrsquo However Confucian teachings as
reflected in the Confucian Classics have been the subject of endless interpretation and
reinterpretation by both philosophers and the ruling elites in China Views on and attitudes
towards the governance of society and law within one school of thought are often as diverse as
those between different schools of philosophy In this sense the term lsquoConfucianismrsquo is perhaps
quite misleading (p 4) 45 Liji (Code of Rites 禮記) (Western Zhou Dynasty c 900-771 BC) became the basis for
Confucianism
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 83
Chrsquou (1961) also noted that although legalists ldquodid not deny the reality of social
differentiation they made no attempt to distinguish people in different social statusrdquo
(p 242) Instead they advocated ldquoa uniform law a uniform reward and punishmentrdquo
(Ibid) In analyzing the criminal law of Qinluuml (秦律) which best reflected the thought
of legalism Liu (1998) remarked
[In] hellip analysis of the criminal law of Qin this is of great significance since it was upon this basis
that the Qin Lu divided crimes into two basic categories namely gong shi gao (official
denunciation) and fei gong shi gao (unofficial denunciation)(p 226)46
It is interesting to note that such a division of crimes was made on the basis of
the individual family at that time the basic unit of society Liu explained that ldquowhere
anyone who intentionally infringed upon the rights of person and property of people
who were not members of his own household it would be treated as a case of official
denunciationrdquo and vice versa (p 226) Different punishments were meted out
according to the above two kinds of offences In this regard Confucianists strongly
objected to the emphasis on severe punishment for maintaining social order
Confucianists instead promoted Shangang (三綱) and Wulun (五倫) which can be
translated as ldquothree bondsrdquo and ldquofive human relationshipsrdquo (Chrsquou 1961 pp
236-37)47 In conclusion ldquothe dispute between Confucianism and Legalism was more
46 As a primary Legalist (Fa Jia) code the Qin Lu (Qin Code) framed by Shang Yang (c 300 BC)
institutes uniform rules for social behavior and attempts impartial rewards and punishment Harsh
punishments were based on lianzuo (linked seats) idea of punishing clan members friends and
associates in addition to the perpetrator 47 As for the three bonds and five human relationships Chrsquou (1961) explained
hellip the five human relationships are but concrete types of reciprocal relationships derived from
the more general categories of ldquonoble and humblerdquo ldquosuperior and inferiorrdquo ldquoelder and youngerrdquo
ldquonear and remoterdquohellipThe first three relationships have also been called Sang-Kang the ldquothree
bondsrdquo by Han scholars (pp 236-37)
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 84
than philosophical contention it was a political struggle for supremacy and
domination in state ideology and hence state politicsrdquo (Chen 1999 p 12)
We can see now that the substantive expression of the legal culture of traditional
Chinese law is the conceptual thinking of traditional Chinese philosophies manifested
in Confucianism and Legalism As a result the concepts of li (ldquomoralityrdquo represented
by Confucianism) and xing (ldquopunishmentrdquo represented by Legalism) were intertwined
in codified traditional Chinese laws Compared with the legal culture of the common
law the legal culture of traditional Chinese law exhibits three distinctive features
First there are no such common law concepts as ldquorightsrdquo and ldquorule of lawrdquo in
traditional Chinese law the legal concepts and principles of which are mainly
philosophical in nature In comparing traditional Chinese law with the English law
Gu (2006) pointed out
While the conceptual division of abstract and concrete law transformed English law from an
administrative into a ldquolegalrdquo practice the lack of an abstract concept of rights and the transmutable
boundaries of original legal meanings determined the administrative features of Islamic and
Chinese law (p 4)
Secondly traditional Chinese law did not develop a system of precedents such as are
found in the common law Alford (1995) gives an explanation for this
Contrary to what one might initially expect the imperial Chinese legal system did not adhere to a
formal system of binding precedent although in fact magistrates and other officials involved with
the law did draw on compilations of prior cases as they reached and sought to justify their
decisions But on reflection the absence of binding precedent may actually have connoted an even
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 85
greater embracing of the pastmdashas the Confucian morality and wisdom of the ages that officials
were assumed to have cultivated in preparing for and taking the imperial examinations were surely
seen as a truer and more historically valid guide for making decisions than any set of rules
formulated or cases resolved by onersquos predecessors in office (p 22)
The prevailing philosophy of Confucianism thus became a hindrance for the
development of legal professionals and the system of binding precedents Despite the
fact that there was a large body of codified laws in traditional Chinese society it was
by no means a legally oriented society
Thirdly given its penal emphasis traditional Chinese law did not pay attention to
matters of a civil nature eg contracts property rights inheritance marriage etc
The legal system was made to serve state interests not to protect individual rights or
to resolve disputes among individuals ldquoThe Chinese neither saw public positive law
as the defining focus of social nor divided it into distinct categories of civil and
criminalrdquo (Alfrod 1995 p 10) As a result the civil law concepts and principles of
the common law are mostly absent in the Chinese language As for criminal law the
difference between traditional Chinese law and the common law is enormous
Though modern Chinese law refers to the law operating in China after the fall of
the last imperial dynasty there were attempts at legal reform in the late Qing dynasty
which had considerable impact on the social and economic development of early
modern China Chen (1999) called the late Qing reform ldquothe westernization of
Chinese lawrdquo since the pressure for reforming traditional values and systems led to the
introduction of ldquowestern economic cultural and political ideasrdquo by the late 19th
century (pp 17-18) The reform was conducted in two stages Chen (1999) notes
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 86
The first stage was to revise the old law with its focus on abolishing the cruel punishments which
then existed hellip the second-stage reform the making of new codes in line with Western laws was
carried out almost simultaneously hellip(p20)
Besides the focus on the reform of criminal law some elements of civil law were
beginning to take shape in China In 1901 the first Chinese company law became
effective introducing ldquothe idea of limited liabilityrdquo and it ldquotook a highly supportive
approach toward entrepreneurial endeavourrdquo (Alfrod 1995 p 48)
The revolution led by Sun Yatsen overthrew the regime of the Qing dynasty and
a Republican government was established in 1912 Legal reform which Chen (1999)
called ldquothe modernzation of Chinese lawrdquo was continued (p 23) The reform was
guided by ldquothree Principles of the PeoplemdashNationalism (minzhu) Democracy
(minquan) and Peoplersquos Livelihood (mingsheng)rdquo (p24) Compared with the Qing
reform the legislation of the Republican government took the Chinese traditions and
customs into consideration in ldquoadopting and adapting Western legal doctrines and
institutionsrdquo (p 28)48
The PRCrsquos legal system was built on the model of Soviet socialist law which
was much closer in form to the legal systems of continental Europe than to the
Common Law with considerable modifications in accordance with Marxist ideology
During the 1950s a large body of laws was comprehensively codified under Maorsquos
48 Chen (1999) holds that law reform of Republican government was more progressive compared with
the Qing reform He remarks
Besides its conservative approach to family and succession matters the Qing reform largely failed
to preserve certain ancient and deep-rooted customs such as the civil law institutions of Yung-tien
(a long-term lease) and Dien (a kind of usufructuary mortgage) (pp 27-28)
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 87
leadership Chen (1999) noted that PRC law experienced another stage of
development under Dengrsquos leadership especially since 1992 when ldquothe Party adopted
the notions of a ldquosocialist market economyrdquo and ldquoassimilation or harmonization with
international practicerdquo (p 49) With the codification of a series of laws such as the
Company Law (1993) the Foreign Trade Law (1994) the Insurance Law (1995) the
PRC legal system underwent many changes in keeping with international practice
Chen remarks
Taxation law joint venture laws intellectual property protection law and most recently the
Criminal Procedure Law and the Criminal Law have all undergone major revisions Further
China has now ratified a large number of international conventions dealing with international
economic relations especially intellectual property protection Thus Western scholars now find
familiar language in Chinese law since Chinese law in its forms structure and methodologies
has become unmistakably Western (p 55)
Paler (2005) also agrees that decades of legal reform of the PRC law represent ldquoa
significant attempt to produce a more orderly and open legislative system in Chinardquo a
modern legal system of legal rules that support its emerging market economy (p 302)
There are three major features of the legal culture of modern Chinese law compared
with that of the Common Law First the notion of rule of law which is a foundational
concept in the Common Law is something of an imported idea in modern Chinese
law and the same term carries a rather different meaning in the two different legal
cultures The legal principles and concepts are derived from the legislation which is
the primary source of law Secondly modern Chinese law modelled on the civil law
system shares the characteristics of the civil law system rather than those of the
THE CONCPET OF LEGAL CULTURE IN LEGLA TRANSLATION 88
common law49 In particular the basic principles and concepts of criminal law in
modern Chinese law are substantially different from those in the common law
Thirdly with the progress of legal reform certain branches of law including company
law insurance law and trade law show similarities with elements of the Common
Law We shall see that the feature of the PRC legal system is fundamentally socialist
but with a newly developed modern economic legal framework Despite the fact that
many of the basic principles and concepts in modern Chinese law are substantially
different from those of the common law borrowing from other legal systems and
transfer of foreign laws into China are both features of traditional and modern Chinese
law In the next chapter therefore we will investigate the transfer of the legal culture
of foreign laws into China since this can shed light on the translation of the common
law into Chinese
49 David amp Cohan (1985) gave two major reasons for this First it was attributed to the Europeanization
of China between the 19th and 20th centuries The other is the fact that the PRC had inherited the
Chinese legal tradition where the statutes or codes were highly valued throughout the imperial period
ie from the Qin Dynasty to the Qing Dynasty
Chapter 4
The Transfer of Legal Culture
41 Legal Transplant and the Transfer of Legal Culture
411 Introduction
We have noted that legal culture ie the conceptual thinking shared by legal
professionals is an essential yet inseparable component of any legal system The
transfer of legal culture can take place when the law of one country is moved to
another or when two legal systems come into contact Transposition of law from one
society to another is generally known as legal transplant While this is an extensively
researched area in comparative law in recent years legal transplant is as old as the law
itself Earlier legal transplants such as the transposition of Roman laws to Europe
offer a well-known example (Watson 1974) Since transplantation involves the
transfer of the conceptual thinking of the imported law legal transplant often brings
about a transfer of legal culture We will examine the relationship between legal
transplant and legal translation the causes of legal transplant and its role in the
transfer of legal culture In so doing we hope to arrive at a better understanding of the
theoretical background surrounding the transfer of legal culture in legal translation
Watson (1974) the founding scholar in modern legal transplant theory
described it as ldquothe moving of a rule or system of law from one country to another or
from one people to anotherrdquo (p 21) Watson identified legal transplant with legal
THE TRANSFER OF LEGAL CULTURE 90
borrowing and argued that the phenomena of legal transplant had ldquobeen common
since the earlier recorded historyrdquo (p21) According to Watson the object of legal
transplant is rules By ldquorulesrdquo he meant not just statutory rules but also institutions
legal concepts and structures (2001a)50 Watson held that legal borrowing can take
place between societies with very different political social economic and religious
conditions and that usually the borrowing is from the more developed and complex
system (2001b p 215)51 In analyzing Watsonrsquos concept of legal transplant Cottrrell
(2001) held that comparative legal history is the primary tool of legal research and
borrowing is usually the major element in legal change (p 71) 52
Legrand (2001) disagreed with Watsonrsquos definition of legal transplant however
contending that Watson reduced it to the movement of ldquorulesmdashwhich are usually not
defined but which are conventionally taken to mean legislated texts and though less
peremptorily judicial decisionsrdquo (pp 55-56) He argued that legal transplant was in
essence impossible since ldquowhat can be displaced from one jurisdiction to another is
literally a meaningless form of wordsrdquo (p 63) Cottrrell (2001) agreed with Legrandrsquos
criticism remarking
50 Watson Alan ldquoLegal transplant and European Private Lawrdquo Ius Commune Lectures on European
Private Law 2 (electronic version) Dutch Institute of Comparative Law
(httpwwwejclorg44art44-2html accessed on March 15 2008) 51 Watson also pointed out that law in writing was an obvious source for borrowing the reception of
Roman law (and of canon law) in Western Europe and the success of the Sachsenspiegel in medieval
Germany of the French code civil in Europe and Latin America are all powerful examples (2001b
p215) 52 Cottrrell (2001) summarized Watsonrsquos views thus firstly transplantation of legal rules between
legal systems was a principal explanation for the growth of law secondly social need was not the
decisive force in legal development thirdly legal changes were largely controlled by the internal legal
professional elites fourthly legal rules survived over long periods despite significant variation in the
social context on which they operate fifthly the development of some important bodies of law was
largely the result of legal history (pp71-72)
THE TRANSFER OF LEGAL CULTURE 91
hellip an emphasis on legal culture may highlight the difficulty or even impossibility of transplants
since a legal culture is not easily replaced by a different one and legal rules are understood in
relation to legal cultures (2001 p78)
As noted in section 312 Cotterrell (1997) rejected the concept of legal culture
and proposed to replace it with the term ldquolegal ideologyrdquo He was thus naturally
opposed to the concept of legal transplant since this hinged largely on a proper
definition of legal culture Watson (2001) however refuted Legrandrsquos view
hellip I believe I have shown that massive successful borrowing is commonplace in law hellip Legal
borrowing I would equate with the notion of legal transplant I find it difficult to imagine that
anyone would deny that legal borrowing is of enormous importance in legal development
Likewise I find it hard to imagine that anyone would believe that the borrowed rule would
operate in exactly the way it did in its other home hellip I have continually over more than a quarter
of a century insisted that what are borrowed and can be borrowed are legal rules principles
institutions and even structure (2001 pp 23-24)
In characterizing the relationship between legal tradition and legal culture for
the development of his legal transplant theory Watson (1991) remarked
The answers for understanding the nature of law and its place in society can only be found in the
legal tradition and legal culture (p 4)
We shall see that Cotterrellrsquos dismissal of the concepts of legal culture and legal
transplant is not convincing Just as legal rules should be understood as an element of
legal culture the concept of legal culture should be understood as an indispensable
THE TRANSFER OF LEGAL CULTURE 92
component in legal transplant Though Watson may well not have defined legal
culture he did consider it as the basis for understanding the nature of law and legal
transplant Since we define legal culture in this study as the conceptual thinking of
legal professionals of which legal rules are an integral part it is fair to say that legal
rules are also an inseparable part of legal culture and thus of legal transplant Though
legal transplants may not always be viable we can not simply dismiss them as
impossible History and a fair part of comparative law studies show that legal
transplants have indeed taken place
412 Legal Transplant Legal Imposition and Legal Translation
Legal transplant takes place for many reasons such as authority prestige
political and economic incentives and may take different forms in different countries
In an attempt to explain the phenomenon Sacco (1991) remarked
There are two fundamental causes of imitation (ie legal transplantation) imposition and
prestige Every culture that has faith in itself tends to spread its own institutions Anyone with
the power to do so tends to impose his own upon others Receptions due to pure force however
are reversible and end when the force is removed (p 398)
Likewise Bercowitz (2001) observed that ldquosome legal transplants were imposed
during occupation others were part of a voluntary reform process initiated by the law
receiving countryrdquo (p 8) A fairly wholesale transplantation of legal systems is
possible during an occupation even without any translation of the imported law into
the indigenous language However legal translation is usually the major conduit of
THE TRANSFER OF LEGAL CULTURE 93
legal transplant in the case of legal reform in the receiving country Therefore we
classify legal transplants into two kinds in this study legal imposition at the
socio-political level and legal translation at the socio-linguistic level
Comparative legal scholars have carried out extensive studies on the imposition
of law since the importation of foreign legal systems is widespread and poses
important theoretical problems In search of a definition of legal imposition
Lloyd-Bostock (1979) distinguished between ldquoexternally imposed law and law that
accords with internalized normsrdquo (p 10) She remarked
hellip externally imposed law would include cases ranging from particular instances of law within
an established legal system to the importation of an entire legal system form another culture It is
debatable whether a definition of imposed law should introduce further distinctions between
types of cases but there can be no doubt that explanation of compliance will need to take
account of the wider context in which law has been imposed (p 10)
Lloyd-Bostock opined that looking into the compliance with imposed law would be
an effective way of understanding the social consequences of legal imposition In
seeking to define the term legal imposition Okoth-Ogendo (1979) observed that ldquothe
use of that phrase might imply concern merely with the normative and institutional
legacies of colonialismrdquo (p 147) However his own view was that legal imposition
encompassed ldquoany situation where fundamental change is contemplated in society
through the medium of laws or legal institutions whose content is clearly contrary to
the perceived and accepted normative order of those whose behaviour it seeks to
regulate or changerdquo (p 147) From this perspective legal imposition resulting from
colonialism always gives rise to socio-political change in the society that receives the
THE TRANSFER OF LEGAL CULTURE 94
law Okoth-Ogendo went on to make an in-depth study of the imposition of English
property law in Kenya pointing out that ldquolegal imposition is a rampant practice in
Africardquo and that the ldquoimposition of law can be seen as an expression of dependency
relations between the Third-World (the periphery) and industrialized nations (the
metropolitan centres)rdquo (p 148)
In similar vein Kidder (1979) pointed out that ldquothe prototype of imposed law as
it seems most generally to be understood is the colonial situation where legal systems
are imposed from dominant cultures and forced on indigenous populationsrdquo (p 289)
A case in point is the imposition of common law in British colonies in South East
Asia Accompanied by nineteenth-century colonialism the imposed law radically
reshaped and pluralized the law of much of Africa Asia and the Pacific The research
of Harding (2001) provides a thorough description of legal transplant in South East
Asia where the imposed law survived Following the lead of Watson and other
likeminded scholars he remarked
hellip law in South East Asia has evolved out of legal transplantation which has on the whole
been successful if judged by the criterion of whether the law has stuck or come unstuck In
South East Asia the idea that the history of a system of law is largely a history of borrowing of
legal materials from other legal systems as maintained by Watson Pound and others is proved
remarkably accurate (p213)
The wholesale transplant of the common law system in Southeast Asia also includes
the case of Hong Kong since English law was imposed on Hong Kong after 1843 In
the case of Hong Kong the legal transplant met with a rather benign reception and as
THE TRANSFER OF LEGAL CULTURE 95
Epstein (1989) noted there was little interaction between Hong Kongrsquos legal system
and the laws of the Chinese Mainland after colonization He remarked
For a century and a half British colonial rule has insulated Hong Kongrsquos legal system from law
and legal change on the Chinese mainland Although early provision was made for the
application of Qing dynasty law in Hong Kong in practice the Qing codes had little if any
impact in Hong Kong after 1841 and even the role of customary law has been restricted to
family matters and land tenure in the New Territories (quoted in Wacks 1989 p 38)
Wesley-Smith (1994) held a different view with regard to the influence of
Chinese customary law however In the process of legal transplant colonial officials
typically endeavoured to eliminate customs they considered repugnant such as
polygamy payback killings suttee and many other kinds of practices they considered
uncivilized Yet customary laws continued to have some effect both in Hong Kong
and many other countries53 Wesley-Smith noted that ldquolsquoChinese law and customrsquo
despite its decline as a source of lawmdashmuch of it was abolished prospectively in
1971mdashstill plays an important role in modern Hong Kongrdquo (p 205) In the process of
legal imposition conflicts often emerge between the indigenous and the imposed law
although as already noted the imposition of the common law on Hong Kong was a
fairly well received legal transplant with the imposed law meeting little resistance
when it began to regulate the behaviour of the indigenous inhabitants However the
legal culture ie conceptual thinking about the common law could reside only in the
minds of legal professionals before the common law was translated into Chinese The 53 Harding (2001) gave an example from Singapore where the famous case known as the Six Widows
Case tried by the colonial court raised a crucial question of what kind of law was to be applied in cases
involving local custom the common law or the customary law The court finally decided the case
according to the Chinese polygamous marriage custom (p 210)
THE TRANSFER OF LEGAL CULTURE 96
transfer of the legal culture related to the imposed law can only fully effected until the
conceptual thinking of the imposed law is translated into the indigenous language and
made accessible to local laypeople
Legal translation as a form of legal transplant always involves the transfer of
the legal culture of the translated law at the socio-linguistic level It takes place when
a country or region borrows the legal system of another usually accompanied with
massive translation of the imported law Through legal translation the concepts of the
foreign law are introduced to the indigenous people Compared with legal imposition
legal translation as a form of legal transplant is a more fruitful way of transplanting
legal systems and transferring foreign legal culture since it imports the underlying
legal concepts into the indigenous language As Zhang (2003) pointed out legal
transplant by translation is the most common phenomenon in the course of legal
development in many countries Its history can be traced to the Old Roman Period (p
9) After the medieval period many western European countries such as France
Germany transplanted the Roman codes by way of translation In modern times many
Asian African and American countries have transplanted the laws of western
countries (p 9) Japanrsquos legal development also illustrates how the improvement and
modernization of one statersquos law may occur by way of translation During the Meiji
period there was massive translation of continental European laws into Japanese and
their reception took place in a completely non-European cultural juridical and
religious context
As noted in section 21 translation as cultural transfer usually requires that a
choice is first made between two basic translation strategies namely domestication
and foreignization through which the cultural concepts of SL may either remain
THE TRANSFER OF LEGAL CULTURE 97
un-transferred or be transferred Cultural transfer as domestication may result in
cultural appropriation to which Merry (1998) gave an explanation
The concept defines culture as contested historically changing and subject to redefinition in
multiple and overlapping social fields It emphasizes continual transformations in the meaning
and structure of law rather than any notion that law is embedded in a homogeneous and shared
culture It incorporates the possibility of resistance while recognizing that resistant practices
involve actions that appear to be accommodation and adaptation Changing the way culture is
conceived makes it possible to reimagine the relationship between law and culture Processes of
legal transplantation imposition and borrowing widespread during nineteenth-century
colonialism and contemporary globalization are central sites for examining this relationship
(1998 p 603)
Cultural appropriation can be seen as the resistance to the imported culture which is
changed in form and substance becoming mixed with the indigenous culture Cultural
transfer as domestication contrasts quite sharply with cultural transfer as
foreignization where the target culture accommodates the alien concepts and adapts
to the foreign culture
Legal translation as foreignization necessitates the assimilation of the legal
concepts of foreign laws as is the case with legal transplants in China China has a
long history of legal transplants dating back to the Late Qing dynasty when China
transplanted the German system of civil law Next Japans legal experience exerted
great linguistic and practical influence on Chinas reception of civil law before 1949
Moreover China transplanted the Soviet Unionrsquos legal ideas after 1949 The history
THE TRANSFER OF LEGAL CULTURE 98
of legal transplants in China can usefully elucidate the role that legal translation has
played
42 Transfer of the Legal Culture of Foreign Laws in China
421 Transplant of Foreign Laws since the Late Qing Dynasty in China
The introduction and translation of foreign legal texts into Chinese started since
the Late Qing period The systematic introduction of Western laws together with other
Western sciences commenced with the establishment of Tongwenguan in 186254 In
the Late Qing Dynasty the transformation of social relations demanded a new social
order Zhang (2003) notes how in the early 20th century when the Qing Code was still
in effect the Qing government decided to reform the law and transplant Western legal
principles into China (p 8) Legal translation played a significant role from 1896 to
1936 during which period legal concepts and legal principles of Western laws were
transplanted into traditional Chinese law thus laying the foundations for modern
Chinese Law
Meijer (1976) carried out a comprehensive research into the revision of criminal
codes in the Late Qing period The Qing government established the bureau for the
compilation of laws in 1901 and it set to work ldquotranslating foreign codes of Criminal 54 It is generally assumed that international law and the relevant vocabulary was introduced in China
mainly after the Japanese influence early this century Several other texts on international law were
however translated into Chinese between 1864 and the turn of the century Some of these were
translated by Martin and published by Tongwenguan such as Theodore Dwight Woolseys Introduction
to the Study of International Law (1877) and William Edward Halls A Treatise on International Law
(1903) (Svarverud 1998)
THE TRANSFER OF LEGAL CULTURE 99
Law and Criminal Procedurerdquo in 1904 (pp 9-11)55 During the law reform period ie
from 1901 to 1907 legal concepts and models were imported from Japan Germany
and other continental countries56 According to Meijer (1976) Shen Jiaben one of
the most important figures in the legal reform of the Late Qing Dynasty was
appointed in 1904 as one of the Commissioners (Xiuding Faluuml Dacheg 修訂法律大
臣) responsible for the Office of Codification (Faluuml Bianzhuan Guan 法律編纂館) (p
11) As the leader of the team of translators translating the foreign laws into Chinese
he held that the success of legal reform depended on the translation of the foreign
laws57 The criminal laws and criminal procedures of the civil law system were
studied and translated58 There were two main reasons for modelling the new law on
the continental legal system One was that the continental system inherited
ldquosomething of the old Roman Familiardquo which was similar to the focus of familism in
traditional Chinese society while ldquoAnglo-American Law emphasizes the individual as
against the familyrdquo (p 22) The other reason was that ldquothe concept of state authority
55 Meijer (1976) made a survey of important revisions on the old law which included the ldquosubstitution
of penal servitude for banishment the abolishment for torture and corporal punishment and abrogation
of some severe punishmentrdquo (pp19-37) 56 Chen (1999) noted that ldquoa constitutional reform which aimed at transforming the autocratic empire
into a constitutional monarchy was also begunrdquo (p19) Japanese model was then adopted and ldquoa series
of edicts concerning the establishment of constitutional government and a series of constitutional
projects and documents were issued by the Thronerdquo (p19) 57 According to Zhang (2003) a total of 180 books of foreign laws were translation into Chinese
among which there were 123 law books from Japan 29 from Britain 18 from America 18 from
German 11 from France 2 from Netherland 4 from Sweden 1 from Finland 2 from Russia and 1
from Mexico 58 In relation to the revised law Meijer (1976) noted
They did not only carry out some of the suggestionshellipas eg the change of beating with the
bamboo into fines and the abolition of torture they went further and obtained the abolition of the
cruel ways of capital punishment branding and collective responsibility in criminal matters the
abrogation of three hundred and forty four articles of the standard rules and the change of formal
capital punishment into penal servitude for some cases of homicide (p12)
THE TRANSFER OF LEGAL CULTURE 100
over its citizens as inherited from Roman Law also fitted well into the ultimate goals
of the legal reform to secure the emperorrsquos position permanently to alleviate foreign
aggression and to quell internal disturbancerdquo (p 22)
Apart from criminal law legal concepts of civil law in Western countries were
also transplanted into China from the Late Qing period on Meijer pointed out that
ldquoapart from the field of Criminal Law the Committee for the Compilation of the Laws
also produced a draft for the Bankruptcy Law and the well-known draft for the new
Law of Judicial Procedure both on the 24th of April 1906rdquo (1950 p 31) In his study
on Chinarsquos reception of concepts and elements of Western private law Epstein (1998)
also holds that ldquoforeign influences on Chinese Civil Law are broad and deeprdquo and he
seeks to ldquoillustrate a number of important features of Chinas reception of Western
legal conceptsrdquo (p 154) The history of Chinarsquos reception of Western civil law began
when the ldquoQing imperial government first attempted to transplant Western civil codes
into China at the turn of this centuryrdquo and ldquothe first successful codification of Chinese
Civil Law was promulgated by the Nationalist government between 1929 and 1930rdquo
(Epstein p 153)59 After 1949 China adopted the legal concept of the Soviet Union
that all law is public law deciding ldquoquite literally to banish the words lsquoprivate lawrsquo
from its legal vocabularyrdquo ldquoa textbook on economic law published in Moscow in
1977 was translated and republished in China in December 1980rdquo which ldquomarked the
59 In explaining Chinarsquos borrowing of Civil Law concepts from the west Epstein remarked
The distinction between criminal and Civil Law was first borrowed from the West during the Qing
codifications It was drawn first in procedural law n45 and finally in substantive law by
designating that the civil provisions in the revised Qing Code (Xianxing Xingluuml) of 1910 should
not be subject to punishments Thereafter China adopted the Japanese pattern of Six Laws which
clearly distinguished between private and public civil and Criminal Laws Despite the influence of
Soviet jurisprudence after 1949 the distinction has survived in substance if not in form in the
PRC (1998 p162)
THE TRANSFER OF LEGAL CULTURE 101
second reception of Soviet legal doctrine into Chinardquo (p 164) During the whole
process of legal transplant since the Late Qing Dynasty China adopted legal concepts
mainly from Germany and the Soviet Union and these set the standard for its legal
codifications This also explains why Chinese law is characterized by civil law
traditions After Chinarsquos economic reform in the late 1970s legal transplant by way of
translation was even more visible Suli (2004) remarks
Since the implementation of lsquoOpen and Reformrsquo in China in 1978 the translation of legal works
has been an important part of developments of the Chinese Law Most active legal scholars of
today have in certain stages of their academic careers translated some works or benefited from
the translation of legal works either directly or indirectly hellip Almost no scholar is totally free
from impacts of foreign laws hellip In this sense the legal science of China of today is basically the
result of legal transplants and the transplants have proved to be successful on the whole (p 97)
The Company Law of the PRC (1993) is a major example of continuing
transplant from Western laws among which Americarsquos corporate law was then a
prime source The profound effect of legal transplant on the development of the
Chinese law can be identified from at least two aspects One is the transplanted legal
concepts and legal principles of the civil law system which underlies Chinese law
The other is the analytical tools which have long been used in Chinas adopted civil
law doctrines to guide legislative drafting and which have in part become embodied
and embedded in the law In explaining Chinarsquos legal transplant and the interplay with
its legal culture60 Potter (2004) remarked that ldquoChinarsquos legal reform effort also
60 Concerning Friedmanrsquos definition of legal culture Potter (2004) remarked
THE TRANSFER OF LEGAL CULTURE 102
depends to a significant extent on dynamics of legal culturerdquo hellip thus analysis of
Chinarsquos legal culture would permit ldquohellip appreciation of the tensions between the
globalized systems of liberal legal norms from which many of Chinarsquos legal reform
efforts are drawn and deeply embedded systems of local norms and values (pp
474-75)61 In other words in the process of legal transplant Chinarsquos local legal norms
adapted selectively to foreign legal norms which were finding their way into Chinarsquos
legal culture Given Chinarsquos long history of legal transplant by way of translation it is
thus meaningful to enquire which aspects of the legal cultures of foreign laws have
been transferred in what form they have been transferred and in what way legal
translation could account for the successful transfer of the legal culture of foreign
laws
Legal culture maybe defined by reference to discourses of sociology and political science in terms
of customs values and opinions and ways of thought and behavior (Friedman 1975 15 Ehrmann
1976 Glendon 1985 Varga 1992) (p474)
However his perspective was ldquoto focus legal culture as a basis for understanding the relationship
between imported and local norms (Potter 2003b)rdquo (p474) 61 Potter (2004) argued that foreign laws especially international laws were transplanted into China It
was easy to assume that those laws with its familiar appearance had no difference with their originals
However it was not always the case He noted
Lubman and Peerenboom both remind students of the Chinese Law not to confuse what appear
to be familiar institutional forms in the operation of the Chinese legal regime with the
acceptance of related international norms As we struggle to understand the conflicted interplay
between imported legal forms and local legal norms ideas about selective adaptation and
attendant features of perception complementarity and legitimacy offer potentially useful
perspective form whence to proceed (p486)
THE TRANSFER OF LEGAL CULTURE 103
422 Transfer of the Legal Culture of Foreign Laws in China
As noted in section 22 of chapter 2 legal translation that seeks to transplant
cultural concepts specific to the original legal system is a good example of cultural
transfer as foreignization A case in point is the legal translation in the Late Qing
Dynasty in China which we have just sketched out We will now look at how the
foreign laws were translated during this period and the approach to translation that
was taken Shen Jia-ben had already observed that when Japan translated Western
laws semantic translation was initially adopted However the great number of
mistranslations that occurred had led to the eventual adoption of literal translation In
the case of China the task of translation was far more difficult since there were no
legal terms to express the legal concepts of Western laws Shen thus asked the
translators to strive for fidelity and fluency in translating the criminal laws of France
Germany Russia and Japan (Zhang p 180)62 For example when learning from the
criminal laws of other countries Shen strove to propagate the idea of a ldquolightrdquo
(xingqing) response to crimes by condemning the traditional punishment inflicted on
prisoners such as dismemberment or decapitation followed by the displaying of the
victimrsquos head in public63 We can see that when striving for fidelity to the foreign
62 Zhang (2003) held that legal translation was a very important channel for importing the legal
concepts of Western law into China She quoted Shen Jiaben as follows
參酌各國法律首重翻譯而譯書以法律為最難語意之緩急輕重記述之詳略偏全決
策為精訛立見從前日本譯述西洋各國法律多尚意譯後因訛誤改歸直譯中國名詞
未定移譯更不易言臣深慮失實務令譯員力求信達hellip (p 180) 63 In explaining how the translators deal with the terminological problem in the translation Meijer
(1950) also noted
hellipThe first deals with the term fa-hsing 罰刑 fine which the committee wanted to be changed
into fa-chin 罰金 on historical and logical grounds The first term means punishment of fine
but he word fa may also denote punishment so that the term might become meaningless the
THE TRANSFER OF LEGAL CULTURE 104
laws Shen wished to achieve conceptual semantic equivalence by adopting literal
translation instead of semantic translation which would result in creating new legal
terms in Chinese In such ways were linguistic adjustments made when transferring
the legal concepts of foreign laws into Chinese
As noted in section 222 of chapter 2 whenever a culture is transferred from one
language to another there is also a need for conceptual adjustment which invariably
results in the foreignization of the importing language Regarding this Meijer gave a
thoughtful account in his researching into the memorials written by Shen He
remarked
With the memorials Shen Chia-ben introduced a new criminal code in China A code based on
foreign concepts most which were alien to Chinese thought or which had in the course of history
been discarded as unsuitable for Chinese society The memorials are not a theoretical explanation
of the philosophical back-ground of a new law they are presented as remarks on the revision of
some of the principles of an existing law by borrowing from foreign law hellip Formerly the law was
according to the most accepted doctrine an auxiliary to education It was essentially a part of
ethics it derived its force from the moral code and served as a model for the judge being a
directive for the maintenance of the natural ordermdashtao The new law however reposed on totally
different concepts The law now became a set of rules given by the state in its capacity of keeper
of the public peace and order punishing any acts which were contraries to the minimum
standards of conduct required for an orderly society An offence now became officially an
offence only because the objective Criminal Law forbad it Violators of moral laws were no
second term is more specific meaning punishment-money taking fa in the meaning of
punishmentrdquo (p 52)
THE TRANSFER OF LEGAL CULTURE 105
longer interfered with as long as they stayed within the limits of the Criminal Lawrdquo (1950 pp
70-71)
Meijer here suggests that cultural transfer takes place on the metalinguistic level
rather than via a theoretical explanation of the philosophy behind the new laws
However it can be conceded that such a background still provides a theoretical
framework and working principles for transferring the legal culture of the foreign law
In other words we can understand foreign legal concepts by studying the extent to
which the memorials of Shen (and his colleagues) are explicit about what the newly
coined Chinese legal terms stand for and how they relate to the original legal system
For example Shen distinguished between criminal and civil affairs It ldquowas
established in the memorial asking for permission to print the code of 1910 The
distinction was based on the principle of Shen Chia-benrsquos Draft of the Code governing
Civil and Criminal Procedure of 1906 art 2 and 3 (cf p 43) but somewhat more
elaborated and preacutecisedrdquo (Mejier 1950 p 53) Therefore the memorials serve as an
important metalanguage for transferring the legal culture of the foreign laws
If we recall the discussion of Evans-Pritchardrsquos translation of Azande in section
223 of chapter 2 we shall be reminded that cultural transfer must be effected at the
metalinguistic level As can be seen from Chinarsquos long history of legal transplant by
way of translation the legal concepts and legal principles of foreign laws have been
transferred into Chinese This also shows that successful transfer of the legal culture
of foreign laws requires adjustments to be made in the target translation language and
must involve conceptual transfer at the metalinguistic level
Chapter 5
The Language of the Common Law
51 The Translatability of the Common Law
As we noted in section 412 of chapter 4 legal transplant in Hong Kong has
taken the forms of political imposition and legal translation the former as a result of
colonization and the latter after the recovery of sovereignty by China64 Wesley-Smith
(1993) gave a detailed account of how English law was imported to Hong Kong after
it became a British colony He noted
One of the first things to be done therefore was to introduce English law into Hong Kong At
one stroke was thus imported a comprehensive collection of rules principles standards and
concepts appropriate for the trading post Britain had established From 1846 to 1966 the
formula by which English law was received into Hong Kong applied all the laws of England
which existed on 5 April 1843 the day Hong Kong obtained a local legislature (p 33)
Despite the controversy over the applicability of the common law it was kept up to
date by constant legislative reception Wesley-Smith rightly pointed out which aspects
64 The Department of Justice explained why legal bilingualism had to be launched in Hong Kong as
follows
In keeping with the Basic Laws provisions on bilingualism all legislation in Hong Kong is enacted in
both Chinese and English and both versions are accorded equal status Thanks to the bilingual
legislation programme begun in 1989 authentic Chinese texts have been completed of all pre-existing
legislation which had been enacted in the English language only and Hong Kongs statute book is now
entirely bilingual ( httpwwwdojgovhkenglegalindexhtm accessed on September 2 2007)
THE LANGUAGE OF THE COMMON LAW 107
of English law were imported into Hong Kong ie the rules principles and concepts
which constitute the substantive contents of the legal culture of the common law as
described in chapter 3 As a matter of fact these rules principles and concepts of
English law had been imposed on the operating legal system in Hong Kong long
before the law was translated into Chinese65 The decision to translate the common
law into Chinese signified a yet deeper transplant of the common law into Chinese
culture this time by way of legal translation instead of political imposition The task
of translating the laws of Hong Kong into Chinese was completed in a timely manner
by May 1997 However the accomplishment of this mammoth task has not ended the
controversy over the translatability of the common law into Chinese In researching
the translation of the common law into French Nguessan (1995) realized that the
terms and concepts of the common law were specific to that system itself and asked
ldquoIf such is the case how is it possible to transfer the law from one language to another
if those two languages express the law of two different countriesrdquo (p iii) [] But as
we have pointed out in chapter 2 this is not the case with the translation of the
common law into Chinese This translation was carried out within the same common
law jurisdiction of Hong Kong and therefore the question of one language expressing
the law of two different jurisdictions simply did not arise The question with which
Hong Kong was and is faced is purely a question of translation namely ldquoIs it possible
to translate the law of one language into another If so howrdquo
65 As for the application of the common law to Hong Kong Wesley-Smith noted
In effect the cut-off date of 5 April 1843 applied in respect of statutes all Acts contained in the
English statute book on that day provided they were general and not purely local in nature and
were not suited to the circumstances of Hong Kong or of its inhabitants were automatically in
force in Hong Kong (1993 p 33)
THE LANGUAGE OF THE COMMON LAW 108
As far as the first question is concerned critics of the bilingual legislation in
Hong Kong were suspicious of the very possibility of translating the common law
especially its terminology into Chinese One common misconception is to regard
English as the only language suited to express the concepts of the common law and
thus reject the possibility of translating the English common law into Chinese Ujejski
(1989) subscribing to Whorfrsquos theory of linguistic relativity expressed his deep
concern about the future of English language in Hong Kong law He remarked
If as Whorff claimed language and thought are inextricably linked and if language including
legal language is indeed a reflection of a culturally based lsquoconceptual realityrsquo we may need
seriously to consider what effects cultural differences may have on the future of the Common
Law in Hong Kong and thus on the language of the law in Hong Kong (p 183)66
For Ujejski the crux of the issue lay in the ldquocultural-philosophical gaprdquo between the
English common law and the Chinese language67 It is true that the linguistic and
66 Contending that it would be impossible to translate the English Common Law into Chinese Ujejski
quoted Cuthbertrsquos following remarks to support his argument
The institution of law in Hong Kong combines a system of rules with a system of institutions
derived from England In the historical evolution of English law philosophical moral and
ethical percepts cannot be abstracted from linguistic structure cultural values and forms of
human behavior Its roots can be traced back to ancient Greece and writings of Plato and
Aristotle Concepts such as lsquotruthrsquo lsquomoralityrsquo lsquoresponsibilityrsquo and lsquocrimersquo are locked both
into precept and language But in 1997 this entire cultural world view will be changed
Although the technology of charters and joint agreements will attempt to operate
homeostatically between the two value systems (capitalist and socialist) the Chinese
population of Hong Kong is already lsquoreality-compromisedrsquo since its semantic and conceptual
vocabularies are rooted to Chinese tradition custom and beliefs It is therefore difficult to
envisage how the present legal system and with it the institutions it supports can possibly
remain in even a fragment of its original state (p 183) 67 Ujejski quoted Michael Thomas a former Attorney General of Hong Kong who expressed a similar
view
THE LANGUAGE OF THE COMMON LAW 109
cultural differences between English and Chinese pose great difficulties in translating
the English common law into Chinese However constraints in translation do not
amount to the untranslatability of the common law In refuting those who upheld the
untranslatability of the common law for reasons based mainly on ldquolinguistic
relativismrdquo which ldquoinsists on the impossibility of dissociating what was expressed in a
language (content) from how it was expressed in that language (form)rdquo Roebuck and
Sin (1993) argued
It cannot be denied that languages have semantic-syntactic gaps Language A has a word for
which Language B has no syntactically unanalysable equivalent hellip examples of
semantic-syntactic gaps show only that symmetry rarely exists between language hellip
Translationrsquos primary task is to convey the various types of meaning which are independent of
the conventionalized arbitrary features of human languages And exact translation as a
meaningful concept must be understood in that context and as a linguistic activity must
proceed under those constraints hellip Unlike poetry which often exploits the special phonological
morphological and syntactic features of a language to achieve aesthetic effects and is therefore
language-bound to some extent law as a social institution is not dependent on language in the
same way hellip It prescribes human behaviour hellip Human behaviour hellip can be described with
similarly sufficient precision in any language The behaviour prescribed and regulated by the
Common Law is no exception (pp 200-02)
The important point to note here is that the law prescribes and regulates human
behaviour in ways which can be described not only in English but also in any other
The difficulty [of translating English statutes into Chinese] lies in the linguistic and cultural
difference between English and Chinese It is a known fact that different cultural communities
organize their internal relationships in different ways This results in legal contexts that differ
both in conception and expression (p 184)
THE LANGUAGE OF THE COMMON LAW 110
language just as the rules of a particular game can be laid down in different languages
such that players relying on different language versions of the rules can play the same
game There is no a priori reason why Chinese cannot be used to express the legal
concepts of the common law Semantic equivalence is achievable in legal translation
as noted in section 223 of chapter 2 Aiming to achieve semantic equivalence the
legal translator should import the source legal culture into the target legal culture an
approach which requires linguistic and conceptual adjustments of the translating
language In the same manner Chinese as the translating language can be expanded to
include newly introduced cultural concepts of the common law
Wong (1999) also denounced as bigotry the view that English is the only
language capable of expressing concepts of the common law He points out that Latin
and French were the languages of court proceedings in England before English took
over the dominant position and that ldquothe reason for the spread of English is political
cultural or economic rather than linguisticrdquo (p 31) However what most troubled
Wong was Section 10C (1) of Chapter 1 of the Laws of Hong Kong which stipulates
as follows ldquoWhere an expression of the common law is used in the English language
text of an ordinance and an analogous expression is used in the Chinese language text
thereof the Ordinance shall be construed in accordance with the common law
meaning of that expressionrdquo (Sect 10C Cap1) Wong (1999) expressed his deep
suspicion of such a semantic interpretation of the translated laws in Hong Kong
Thus constricted the Chinese equivalents of common law expressions are mere symbols in the
most unsophisticated sense of those words They have no meaning of their own however
beautifully rendered they might seem and however much their creator thinks they resemble the
original It matters not one jot (p 31)
THE LANGUAGE OF THE COMMON LAW 111
Actually if this remark is true the same strictures could be applied to any ordinary
native speaker of English who has no training in and no knowledge of the common
law In his case as well the technical expressions he comes across are no more than
ldquomere symbols in the most unsophisticated sense of those wordsrdquo and mean nothing to
him at all In the same vein should we not perhaps blame those who create these
wordsmdashlaw drafters and judgesmdashfor conjuring up such meaningless symbols
Evidently Wong has missed the whole point While it is no doubt true that the
translatorrsquos task is to give a ldquobeautifulrdquo rendition of common law expressions and
provide the closest possible Chinese equivalents the legal meaning of these
equivalents can only be properly construed in the light of the entire semantic
referential system of the common law Secondly Wong is wrong in his explanation of
how language works The ldquomere symbolsrdquo of the Chinese equivalents of common law
expressions are by no means ldquoconstrictedrdquo Instead the Chinese equivalent of a
common law term is defined as the equivalent for its counterpart in English
To provide Chinese equivalents of common law terms is a vital step in
transplanting the common law into Chinese History tells us that whether it was the
Christian Bible or the Buddhist scriptures that were being translated the translator had
to adjust the Chinese language in such a way that foreign concepts could be
assimilated into its conceptual system As a result the translated text was invariably
incomprehensible at the initial stage of assimilation as Sin (1998) put it ldquohellipopaque to
the uninitiated eyesrdquo (p 138) But now the Chinese equivalents of these biblical or
Buddhist concepts have become part of the Chinese language and culture This is also
the case with the common law in Chinese To sum up the problem at issue here is
neither the translatability of the common law nor why it should be translated but how
common law Chinese could be developed with a view to transferring the legal culture
THE LANGUAGE OF THE COMMON LAW 112
of the common law into Chinese The whole case by no means ldquomatters not one jotrdquo
Instead it matters a lot We will further discuss the second question in the following
sections
52 Legal Terminology and Legal Concepts
As has been shown in the previous chapter transferring the legal culture of foreign
laws into China has plenty of precedent Legal concepts and legal principles of the foreign
laws have been imported into Chinese since the Qing Dynasty To transfer the culture of
the common law ie its legal concepts and legal principles into Chinese is thus by no
means a novel venture As we know legal concepts of the common law are specific to
that system and are expressed by means of in its specific legal terminology In the case of
Hong Kong when the Official Languages Ordinance was amended in 1987 to stipulate
that the laws of Hong Kong be available in both Chinese and English the translation of
the common law terminology posed a serious challenge In the following sections we will
look at the specific features of common law English in which legal concepts and legal
principles are embodied and examine the specific problems in translating the Common
Law into Chinese from the aspects of the legal lexicon legislation and case law We will
first investigate the theoretical aspects of the terminology and the relationship between the
common law terminology and the legal concepts they stand for
THE LANGUAGE OF THE COMMON LAW 113
A study of terminology68 calls for an understanding of the form-meaning relationship
of the terms since it forms the basis of our inquiry into the relation between legal concepts
and legal terminology69 Since a word is a lexical unit constituting a term the study of
words constitutes the basis for the study of legal terms According to Saussure the
linguistic sign has two sidesmdashthe signal (the word form) and the significance (the concept)
while the word as a linguistic sign is composed of the word form (the signifier) and the
word meaning (the signified) (1986)70 An essential concept can be expressed and
lexicalized as (and in the form of) a noun a verb or a descriptive adjective In other words
a noun verb and descriptive adjective can signify the same essential concept71 That
concepts and word forms are not equivalent is shown by the fact that one word can have
more than one meaning in the same language72 Lexical relations could thus be illustrated
68 In search of a theory of terminology Sager (1990) defined terminology
hellipas the study of and the field of activity concerned with the collection description processing
and presentation of terms ie lexical items belonging to specialized areas of usage of one or more
languageshellip(p2) 69 A word is typically a single lexical unit while a term could be composed of a single word or a set of
words Terminologies are the technical or special terms used in business art science or special subject
Thus terms used in the language of the law consist of general terms and terms used pertaining to the
special context of the law which can be regarded as its terminology 70 ``Word form will be used here to refer to the physical utterance or inscription and ``word meaning
to refer to the lexicalized concept that a form can be used to express 71 We find that each essential concept when examined carefully has a root expression as a noun a verb
or a descriptive adjective The expression of a concept begins in one of these three word classes
However by affixing appropriate fragments each of these three word classes can (usually) be
transformed into another Conversely by removing these affixes a root expression can be revealed
Thus the underlying essential concept can be said to be independent of any specific word class
Alternatively we could say that all three word classes (noun verb and adjective) provide the same
expression of an essential concept 72 Each meaning of the word represents a different concept Such a word is called polysemy which
means that a word with (at least) two meanings yet sharing a lexical form According to Leech
ldquoSynonymy and polysemy are relation between form and meaning (a) Synonymy more than one form
having the same meaning (b) polysemy the same form having more than one meaningrdquo (1981 p94)
THE LANGUAGE OF THE COMMON LAW 114
according to the analysis of the different meanings of one word which Leech (1981)
defined as ldquoa process of breaking down the sense of a word into its minimal componentsrdquo
(p 89)73 In this regard componential analysis is very useful in understanding the relation
between concepts and words74 The problems of the translation of terminology hinge on
conceptual equivalence since there is not always a correspondence between pairs of terms
in the source and target languages The layperson usually believes that sound knowledge
of the source and target languages and a good dictionary are sufficient for translating a
term in question but even if this were wholly true it would be is in no way sufficient in
technical translating where the translation process is concerned with achieving conceptual
equivalence between two terms75 The degree of conceptual equivalence which exists is a
function of the extent to which the intentions of two or more concepts overlap Typical
degrees of equivalence include 73 Leech said
The meanings of the individual items can then be expressed by combinations of these (semantic)
features
man +HUMAN +ADULT+ MALE woman +HUMAN +ADULT - MALE
boy +HUMAN -ADULT + MALE girl +HUMAN ndashADULT- MALE
These formulae are called the COMPONENTIAL DEFINITIONS of the items concerned they
can be regarded in fact as formalized dictionary definitions The dimensions of meaning
themselves will be termed semantic oppositions (1981 pp89-90) 74 Nida (1975) supplemented the approach of componential analysis proposing that there are three
fundamental classes of components They are
(1) the common components ie those features which are shared by all the meanings being
compared and which accordingly constitute the basis for bringing such meanings together (2)
the diagnostic components ie those features which distinguish the meanings of any set and (3)
the supplementary components ie those additional features often connotative which are
significant in describing all the aspects of a meaning but which may not be strictly necessary in
contrasting a particular set of meanings (p182) 75 Since there used to be doubt that a true translation equivalence is possible because of the difference
of meaning of corresponding words in the two languages while in practice translation equivalence does
exist in the sense that translators in their daily operation select term Y in the TL (target language) as the
translation of term X in the SL (source language) and so one could say that X and Y are translation
equivalents
THE LANGUAGE OF THE COMMON LAW 115
(1) Complete equivalence a term in SL whose concept is the same as the term in TL The
two terms are thus judged to be equivalent
(2) Partial equivalence this can be further divided into two types One is narrower
equivalence where the concept of the term in TL includes fewer characteristics than
that of the term in SL against which it is being measured The other is broader
equivalence where the concept of the term in TL includes more characteristics than
that of the term in SL against which it is being measured
LanguageLanguage
Areaof Shared
Concept
Source Target
Figure 52 Different conceptual divisions across languages
(3) Non-equivalence the term in the SL whose concept does not exist in the TL
The foregoing discussion of conceptual equivalence is directly relevant to the
translation of terminology In cases when one linguistic form in the original language
represents several different concepts which are lexicalized in different linguistic forms in
the translating language such concepts should be understood according to the original
referential system In pointing out the significance of the referential system of the
terminology Sager (1990) remarked
THE LANGUAGE OF THE COMMON LAW 116
A theory of terminology is therefore primarily concerned with a referential system which relates
knowledge structures to lexical structure and defines the constituent elements of each type of
structure (p 14)
For Sager a theory of terminology inevitably involves a theory of ldquoconceptrdquo and
ldquoreferencerdquo as the concept conveyed by an item of terminology can only be construed in
its reference Based on the above definition the common law terminology which is
legally and culturally specific to the common law should be appropriately regarded as a
semantic system ie scientific expression of the system of common law concepts
Accordingly the study of common law terminology is the study of the relationship of the
linguistic signs and their concepts with special reference to common law culture An
investigation into the translation of the common law terminology into Chinese in terms of
cultural transfer will ultimately focus on the translated linguistic signs and their semantic
referential system
We can thus justifiably say that common law terminology is the lexicalized
expression of the concepts built into the common law As Carter (1994) points out
Basic concepts hellip build up in law as cases accumulate hellip they [concepts] do exist in law Often they
turn out to be sufficiently fixed and stable so that lawyers can engineer from them secure plans for their
clientsrdquo (pp 142-143)
This illustrates how significant the existence of legal concepts is in the common law and
how decisive the use of them is for lawyers In the common law legal concepts are
lexicalized or expressed by legal terms The translator has to identify the concept and the
referent that the word in the source language represents But if the translator fails to
THE LANGUAGE OF THE COMMON LAW 117
distinguish all the different concepts and referents that the word in the source language
can stand for she may end up selecting a word in the target language that represents the
wrong concept and referent
Therefore one of the difficulties that the translator may encounter in translating legal
terms is the problem of non-equivalence In some cases the legal concepts that are
expressed by the legal terms do not exist in Chinese There are no words in Chinese to
express some of the most elementary notions of the common law The terms the common
law and equity are only two of the examples There is no system of the common law
and equity in the Chinese legal system (neither in the PRC nor in Taiwan) In addition
many types of institutions proper to the common law have no direct counterparts in China
eg ldquoMagistraterdquo ldquoLands Tribunalrdquo and many others) In other cases partial-equivalent
terms also pose difficulties to the legal translator since one legal term can have both a
specific legal meaning and an ordinary meaning at the same time eg the term
ldquoconsiderationrdquo An equivalent for the ordinary meaning which is shared in Chinese can
be found but the specific legal meaning does not exist in Chinese Could such a Chinese
equivalent if selected as the translation convey the same legal meaning in the common
law For example transferring the expression used for seemingly similar institutions eg
ldquohigh courtrdquo risks blurring the differences between these institutions The common law
term high court could be translated into Chinese as gaodeng fayuan (高等法院)
However this very term as used in the PRC refers to a different legal institution operating
under a socialist legal system Therefore the Chinese equivalent gaodeng fayuan (高等法
院) for the common law term ldquohigh courtrdquo certainly does not mean the same as the
Chinese term gaodeng fayuan (高等法院) as it is already used in the PRC Gaodeng
fayuan (高等法院) as the translation for the common law term can only be properly
construed with reference to the common law system
THE LANGUAGE OF THE COMMON LAW 118
To propose appropriate translation strategies and techniques in translating common
law terms into Chinese requires a clear understanding of the vocabulary used in the
common law in the first place The vocabulary of the common law is multifarious
including as it does terms referring to legal institutions terms referring to legal personnel
terms employed in different branches of law and of course words used in everyday life
The question is how best we should categorize them While different criteria are possible
a classification in line with the relationship between the linguistic form and the legal
concept could be of great direct help and could also hold relevance for further
investigation of translation equivalence in general The classification of the common law
vocabulary discussed in this section will thus be based on the analysis of the term and
concept relation made previously76
(1) Technical terms also called terms of art these are terms used exclusively in the legal
sphere and have no application in ordinary language and they make up a significant
part of common law terminology As terms of art their technical meaning needs
scrutinizing when being translated as they are unique to the common law and have no
equivalent in Chinese It should be noted that most common law terms of Latin or
French origin belong to this category They can be divided into two sub-categories
(a) Technical terms that represent concepts constructing the body of the laws77
(b) Technical terms that represent concepts relating to the judicial mechanism78
76 Alcaraz and Hughes (2002) also divide legal vocabulary into three categories namely ldquopurely
technical vocabularyrdquo ldquosemi-technical vocabularyrdquo and ldquoeveryday vocabularyrdquo (pp154-65) 77 Selected examples include demurrer estoppel fee simple fee tail laches mens rea reprieve
trespass overrule trover and waiver
THE LANGUAGE OF THE COMMON LAW 119
Semi-technical terms these are common English terms which when used in a legal
context acquire a specific legal meaning Such terms are thus polysemous and more
difficult to identify As proposed by Sin (1998) they can be further divided into three
linguistic sub-categories
(a) Terms where the legal meaning is fully shared with the core meaning79 Core
meaning may be used to illuminate the meaning of other senses and all other
senses may be derived from this core meaning combined with contextual
information such as abandonment (fangqi 放棄) attempt (qitu 企圖) confession
(gongren 供認) defence (mianze bianhu免責辯護 kangbian 抗辯) negligence
(shuhu疏忽) public place (gongzhong defang 公眾地方 gongzhong changsuo
公眾場所)
(b) Terms where part of the legal meaning overlaps with the core meaning such as
consideration (daijia 代價 ) discharge (shifang 釋放 ) malice (eyi 惡意 )
representation (shenshu shu 申述書 chengshu 陳述) remainder (shengyu quanyi
剩餘權益)
(c) Terms where the legal meaning deviates completely from its core meaning eg
personal representative (yichan daili ren 遺產代理人) warranty (ciyao tiaojian
次要條件)
78 Selected examples include affidavit certiorari defendant fieri facias habeas corpus mandamus
metes and bounds plaintiff serve proceedings and voire dire 79 By core meaning we refer to the central or most fundamental concept that links the principal senses
of a word to its various other senses
THE LANGUAGE OF THE COMMON LAW 120
(3) Everyday vocabulary terms which are common or ordinary in English They are used
both in special context and in everyday common language and have no specialized
meaning in the common law
Historically and politically the language of the laws of Hong Kong was exclusively
English The Chinese legal terms employed in the PRC legal system and Taiwanrsquos
German-based civil legal system were distinct from those in common law English and as
a result no equivalent legal terms existed in Chinese To achieve conceptual equivalence
in translating terminology the translator has to generate a term in the target language
which can express the same concept as the term in the source language When
terminological concepts are shared in the source and target language the translatorrsquos job
is to find the conceptual equivalent But where one concept in the source language does
not exist in the target language the translator encounters a greater problemmdasha new term
in the target language has to be created which is capable of expressing the same concept
as the original term in the source language
53 The Language of the Legislative Texts and Legal Bilingualism
In the common law legal culture the notion of statutes as the primary source of law
is a recent development whereby an identifiable and sovereign legislature makes all the
rules by which disputes are resolved Making law by legislation is already an
indispensable part of the common law system as noted by Hiltunen (1990) ldquoNowadays
of course judicial principles are laid down through parliamentary legislation in many
areas where there is no tradition in the common lawrdquo (p 16) Section 4(1) of the Official
Languages Ordinance (Cap 5) in Hong Kong stipulates that that all ordinances shall
THE LANGUAGE OF THE COMMON LAW 121
subject to certain exceptions be enacted and published in both official languages ie
Chinese and English The statutory law of Hong Kong before 1997 is derived from the
common law legislation Most of the legislation remained intact after 1997 with little
being repealed or revised The official website of the Department of Justice of Hong
KongmdashBLISmdash is a comprehensive database for updated bilingual laws information and
most of it ldquocontains the statutory Laws of Hong Kong and selected constitutional
documentsrdquo80
For the legislative translator gaining a clear understanding of the language of and
the legal culture embedded in the legislation is a prerequisite to maintaining the legal
meaning intact It is argued that the language of statutes is one of the most complex forms
of language perhaps the most complex Some of these complexities result from the way
in which the law developed historically (Mellinkoff 1963) and some were no doubt due
to bad drafting Yet legislative language as a whole has won a defence from some
linguists
Legislative discourse cannot be said to be purely or wilfully esoteric or archaic or unintelligible as
its critics often say It constitutes a rational functional stylemdashmore accurately it is rational
because it is functional (Maley 1987 p 46)
The lexico-grammatical choices in legislative writing come from the goal of legislation to
provide certainty This requires that the language of legal rules should be precise and
explicit However in reality it is impossible for a legal rule to be so precisely framed that
80 BLIS website httpwwwlegislationgovhkindexhtm accessed on April 16 2008
THE LANGUAGE OF THE COMMON LAW 122
it encompasses all possibilities Therefore against the goal of certainty must be balanced
the goal of flexibility This is achieved through the use of words of general classification
such as place building or vehicle where class membership is open and through words
that allow for a degree of interpretation such as wilful or reasonable A balance between
certainty and flexibility can also be achieved through the interweaving of numerous
qualifications with the main provision This leads to very long sentences that cannot
easily be replaced by shorter sentences at least not without compensating in another
fashion (Bhatia 1994) Another characteristic of statutes noted by linguists is their
relationship with other related statutes ie their intertextuality Intertextuality in statutes
can be realized in a number of different ways through textual mapping devices for
example ldquoin pursuance of section 111 of this Actrdquo (Bhatia 1987) and through complex
prepositions such as ldquoby virtue ofrdquo and ldquoin accordance withrdquo (Swales 1982) They allow
the draftsperson to reduce the amount of information in an already extremely dense text
and signal to the reader where this information can be found In addition they explicitly
locate a statute in the context of preceding legislation and remind the reader of the wider
context in which the statute has to be read
Two other distinct features of legislative language must be noted its normative
nature and its instrumental purpose Legislation is made to confer rights define duties
and stipulate prohibitions purporting to be prescriptive directive and mandatory
Each legislation may contain one or more legal rules or legal norms delivering the
above functions Thus legal rules create legal relationship and identify in what
situation the legal relationship occur Vandevelde (1996) explains how legal
relationship is created in legislative language
THE LANGUAGE OF THE COMMON LAW 123
In general rules of law bear the form lsquoif x then yrsquo meaning that if these facts occur then this
legal right or duties arises Rules of law thus have a factual predicate and a legal consequence (p
19)
Therefore statutes themselves are the rules of law bringing about certain rights and
duties In terms of the basic elements of legal rules Šarčević (1997) analyzed the
famous English barrister George Coodersquos contention that ldquoall legal rules contain the
following four elements legal subject legal action case and conditionsrdquo (p 136)
She agreed with previous criticism of Coodersquos definition of the elements of legal rules
as too rigid since the two elements of case and condition could be combined into a
fact-situation while the other two elements ldquoconstitute the so-called statement of lawrdquo
but noted that ldquoit is significant that he singled out the legal action as the most
important element of a legal rulerdquo (p137) Šarčević (1997) subscribed to the more
recent development proposed by Kelsen and his followers who analyzed the
ldquoprescriptive and descriptive elements of legal rules or normsrdquo and Weinbergerrsquos
assertion that legal rules comprise ldquodescriptive fact-situation (propositional content)
and a prescriptive statement of law (normative content)rdquo (p 137) Thus the legal
translator must identify the normative content of the legislative language The
instrumental purpose of the legislative language is based on the underlying policy that
the legislature intends to promulgate Most statutes address matters of public policy
The public policies that the legislature intends to promote are considered as the
underlying policies on the basis of which rules of law are built The underlying
policies are the intent of the lawmakersmdashwhat kind of rights and duties they purport
to create and what remedies they decide to offer Underlying policy is of great
significance to legal reasoning It was the key element helping to understand the
statutes detect the intent of the legislature and analyze the application of the statutory
THE LANGUAGE OF THE COMMON LAW 124
rules As Bhatia (1983) put it legislation was the law ldquohellipto do justice to the source
rather than to facilitate comprehension of the unfolding text by any particular
readershiprdquo(p 9)
Consequently law is viewed as a normative social practice while the language
of the law being a specialized language written to regulate administer or mediate
the citizen of certain society is declarative or imperative in nature Approaching the
normative nature of the legal language from the pragmatic dimension the speech act
theory inspired by JL Austin and further developed by Searle is appropriate to
explain how the language of law is supposed to guide human behaviour and how it
can give rise to reasons for action The legal speech act is an illocutionary act usually
marked by a performative verb
Hence I shall argue that a legislative textmdasha statutemdashis a rule-enacting document The text as a
whole is considered a speech act with the illocutionary force of enactment this emerges from an
analysis of the language of what is known as the enacting formula of a statute which is an
explicit performative The constituent parts of a statute hellip may be hellip speech acts with the
illocutionary force of ordering permitting or prohibiting as indicated by the modal verb in the
main clause of the sentence (Kurzon 1983 p 51)
The speech act of ordering is typically performed by the use of the modal ldquoshallrdquo
which shows ldquohellip the obligatory consequence of a legal decision and [is] not
simply hellip a marker of future tense which is its normal functionrdquo (Crystal and Davy
1969 pp 206-7) The use of the modal ldquomayrdquo has the illocutionary force of
permission while ldquoshall notrdquo expresses the illocutionary force of prohibition In
considering the legal speech act Šarčević (1997) observed
THE LANGUAGE OF THE COMMON LAW 125
Translation problems arise because legal speech acts cannot be translated literally thus
preventing the translator from simply using the same form of the verb in the target text hellip
Pigeon repeatedly warned hellip against using the future tense in French to translate the English
imperative lsquoshallrsquohellip( p 137)
Bilingual legislation in Hong Kong at present means the enactment of new laws
in two languages namely English and Chinese since the translation into Chinese of
ordinances previously enacted in English has already been accomplished The present
drafting practice in Hong Kong already includes ldquoa translation process since the
English text is normally drafted first and then rendered into Chineserdquo (Lee 1996
p156) In the bilingual legislation context of Hong Kong the translator as both
message receiver and sender is required to construe the English legislation accurately
in such a way that Chinese version is as authentic as the English one81 This means
that the Chinese translation of the English common law must bear the same legal
meaning and have the same legal effect considering both the requirements and the
goals of the translation82 There is a basic presumption for this goalmdashthe presumption
81 ldquoSection 4(1) of the Official Languages Ordinance (Cap 5) now provides that all ordinances shall
subject to certain exceptions be enacted and published in both official languages The Law Drafting
Division of the Department of Justice (formerly known as the Legal Department or the Attorney
Generals Chambers) is responsible for preparing the two language texts of all ordinances and
subsidiary legislation introduced by the Government The first bilingual ordinance was the Securities
and Futures Commission Ordinance (Cap 24) enacted in April 1989rdquo (BLIS website A paper
Discussing Cases Where the Two Language Texts of an Enactment are Alleged to Be Different) 82 ldquoSection 10B (1) states the fundamental principle of equality between the two language versions of
our laws It provides that both language texts of an ordinance shall be equally authentic and the
ordinance shall be construed accordingly This means the Chinese text is neither subordinate to nor a
mere translation of its English counterpart (BLIS website A paper Discussing Cases Where the Two
Language Texts of an Enactment are Alleged to Be Different provided by the Law Drafting Division of
the Department of Justice)
THE LANGUAGE OF THE COMMON LAW 126
of same meaning in bilingual texts83 As elucidated by the Law Drafting Department
the very aim of legal bilingualism is ldquoto introduce common law concepts to the
Chinese language hellip Reference must be made to the meaning as it is found in the
common law The common law must be taken as the semantic reference schemerdquo84
Therefore two legal texts are stipulated to have the same meaning and share the same
system of reference ie the common law
The problems encountered by the legal translator in translating legislation
include two aspects namely cultural and linguistic The linguistic problems in
translating the English into Chinese mainly include (1) Complex and lengthy
sentences (2) frequent use of the passive voice Researches on the language of the
law are numerous and relatively comprehensive From both Mellinkoff (1963) and
Crystal amp Davyacutes (1969) attempts at systematization in the 60s up to the modern
studies carried out by Bhatia (1983 1993) on legislative texts by Kurzon (1984) on
cohesive structures and in Spain by Alcaraz amp Hughes (2002) on the peculiarities of
the English legal structure and its language among others the emphasis has been
increasingly placed on the need to define and describe the legal discourse in its own
context Therefore far from considering the legal text solely from its grammatical and
semantic point of view studies of legal discourse exploit the full range of linguistic
theory and are no doubt also influenced by the pragmatic flavour of other previous
multidisciplinary analyses Bhatia (1983 1987 1993) paved the way for the practical
83 ldquoSection 10B (2) of Cap 1 presumes the provisions of a statute to have the same meaning in each
authentic language text The two texts are taken to communicate an equivalent message in their own
fashion They are but two expressions of the same intent and together constitute one law embodying a
single meaning Words and expressions in one language should be deemed to bear the same legal effect
as their counterparts in the other language of the same legislationrdquo Ibid 84 February 1999 Legal Practice Law Drafting The Common Law and the Chinese Language
THE LANGUAGE OF THE COMMON LAW 127
application of genre theory by suggesting a comprehensive framework for analysing
non-literary genresmdashespecially LSP texts His studies of legislative texts examined in
detail their linguistic features in terms of preparatory qualifications cases and
conditions in an attempt to fill the gap caused by inadequate attention to training in
legal language in legal education system Bhatiarsquos work has shed considerable light on
the writing preferences of legal drafters Following Hallidayrsquos functional approach
Maley (1994) also researched legislative discourse by examining generic structure and
legal performatives He stressed the ways in which mandatory permissive or
discretionary elements in legislation determine the use of performative or operative
verbs (pp 20-21)
Let us look at the problem from the viewpoint of legislative drafting A rule of
law regulates behaviour in society It must be clearly formulated categorically stated
and accessible in terms of form The underlying logical structure of a rule of law and
its textual formulation are not always identical so recipients often have to construe
the relation between logical structure and the text Most importantly a rule of law
always exists as a logical proposition even if this not set forth formally in a statute
However when formally recorded one rule may be embodied in several texts
Although its textual formulation may sometimes be unclear or unambiguous the
logical structure of a rule of law always remains clear since the logical structure of the
legal rule determines the arrangement of its textual elements The so-called legislative
sentence is a sentence designed to confer rights or powers or to impose duties and can
also be used for prohibitions A mastery of the legislative sentence is useful for all
legal translators Legal rules expressed by the legislative sentence have a consistent
framework for their component parts divisions sections subsections and other
segments These linguistic conventions which may pose certain problems for the
THE LANGUAGE OF THE COMMON LAW 128
legal translator actually provide a framework for the legislative drafter The legal
translator should know how the rule was developed about the underlying intentions of
the drafter and about how the rule-maker wants the rule interpreted85 This may place
a heavy burden on the legal translator and it is also a burden that the legal translator
has to remove from othersrsquo shoulders Although a plain writing style was not a new
style for rules written in England ldquomost of the legal documents follow the basic rules
that were written 150 years ago by an English barrister by the name of George Cooderdquo
(Watson-Brown 1998 p 23) Coode developed a model legislative sentence which
has been adopted by drafters in most Commonwealth countries and in some American
states Coodersquos model has also influenced the drafting of clauses in legal documents
especially contracts86 Although Coodersquos analysis has been criticized by some legal 85 Generally there are three well-established interpretation rules supposedly to guide lawyers and judges
the literal rule the golden (or purposive) rule and the mischief rule The literal rule simply means
giving the text its ordinary everyday meaning and applying it exactly as written This rule came into
prominence in the 18th century The literal rule was founded on the assumption that words chosen by
Parliament in the Act (or any legislature in any law) clearly showed their intentions in passing that Act
(Holland amp Webb 1991 p 66) What the literalist would be looking for is the primary or most obvious
meaning of the word not any general meaning or secondary meaning (Ibid pp 166-167) The literal
rule is admittedly a workable criterion for statutory interpretation The golden rule meant that words
should be construed in their ordinary sense unless that would lead to absurdity or inconsistency in
which case the senses of the words might be modified to avoid that absurdity and inconsistency (Cross
1987 p 14) The mischief rule seeks to discover the real intention of the legislature and represents a
somewhat more purposive approach to interpretation which sets out the job of the judge as to determine
what defect in the common Law the statute set out to remedy and apply what is ascertained to be the
intention of parliament There are other three rules which guide the statutory interpretation the rule of
ejusdem generis (lsquoof the same kindrsquo) the rule of noscitur a sociis (lsquoa thing is known by its associatesrsquo
[also known as the rule of rank] and the rule of expressio unius est exclusio alterius (lsquothe mention of
one thing is the exclusion of anotherrsquo) (Cross 1987 p 136) 86 According to Coode most law is designed to change the position of a person or a class of persons by
conferring a right privilege or power or by imposing a duty To carry out these functions effectively a
legislative sentence should contain four elements the legal subject which is a description of the person
or class of persons who is given a power or duty or whose legal position is otherwise affected by the
THE LANGUAGE OF THE COMMON LAW 129
theorists as too rigid it remains a good starting place because it suggests the kind of
analysis drafters should attempt before starting to draft87 The complex and lengthy
sentences of the model were drafted expressly for the purpose of formulating legal
rules and enabling a drafting convention to be followed Since legal texts (statues
treaties contracts) defend the rights of a person or group or impose obligations their
drafters must pay ldquoscrupulous attention to making sure that the legal text is hermetic
and unambiguousrdquo (Taylor 1998 p 130) Admittedly the efforts to achieve a
hermetic and unambiguous text often result in a text that can be ldquoat times seemingly
impenetrable syntactically complex full of apparent redundancyrdquo (p131)
Another problem that the legal translator encounters is the use of passive
structures When using the passive voice a statement acquires an air of mystery as the
actor remains unknown until after the action is stated An omission of the actor
renders the statement even more mysteriousrdquo (p 23) Such an air of mystery is
operation of the law the legal action which is a description of the legal action or legally significant
impact that will result from the operation of the law and the case which is a description of the facts that
must have occurred the circumstances that must be present and the conditions that must be met for the
law to operate In the classic legislative sentence these three elements are arranged in the following
order
(1) the case is set out first in one or more subordinate clauses introduced by ldquoifrdquo ldquowhererdquo or
ldquowhenrdquo
(2) next comes the legal subject The legal subject is also the grammatical subject of the main
clause The legislative sentence ends with the legal actionmdasha description of what the legal subject may do or is
entitled to claim or must do or must not do 87 Admirable as it is Coodersquos model has certain problems One is that it relies on a left-branching
sentence structure Another problem is that it encourages drafters to equate a legal provision with a
self-contained legal unit on the one hand (the section article or clause) and with a self-contained single
grammatical unit on the other (the sentence) The final problem is that Coodersquos analysis of legal action
the third element of the legislative sentence is narrowly focused on rights duties and powers It
ignores definitions and other types of declarations
THE LANGUAGE OF THE COMMON LAW 130
preferred by the legal drafters since the passive voice conveys the kind of objectivity
and lack of bias that legal rules are supposed to exhibit Consequently the legal
translator may find this particular linguistic problem hard to solve since legal English
creates linguistic patterns that are particularly difficult to translate directly into
Chinese However it is possible to write legal rules as Watson-Brown suggests ldquothat
will reflect (upon translation) the same meaning without tortuous Chineserdquo (1998 p
23)88 The legal translator does not necessarily follow the sentence sequence of the
English legislative text Instead he can use sentence structures idiomatic to Chinese
as long as the original meaning can be delivered
As can be seen from the discussion above past research on legal translation was
under the influence of the linguistic approach to legal translation mainly concerned
with the linguistic features of legislative language Inspired by applied linguistics
Alcaraz amp Hughes (2002) put forward the idea of ldquoindirectrdquo legal translation which
aims ldquoto produce on the target reader an equivalent effect to that produced by the
source textrdquo (p 180) Instead of explaining how the equivalent effect could be
produced on the target reader they mainly discussed the linguistic features of
legislation and the linguistic problems confronting the legal translator in the aspects of
ldquomodifiersrdquo ldquoadverbsrdquo ldquosyntaxrdquo ldquothematization and ldquotextual coherencerdquo To deal
with such problems they suggested three techniques ie transposition expansion and
modulation (pp 186-192) However they seemed to have ignored a more significant
88 Waston-Brown (1998) also proposed some solutions to the English legal drafter in terms of avoiding
pitfalls in bilingual legislation
(3) Use the active voice the present tense and indicative mood
(4) Use an intuitive syntax leaving the verbal qualifications until the end of the sentence
(5) Use short sentences by deleting lsquoandrsquo when it joins two principal clauses and
(6) Learn Chinese syntax and attempt to match it with the English text (p23)
THE LANGUAGE OF THE COMMON LAW 131
problem besetting the legal translator namely the cultural problemŠarčevićrsquos (1997)
contention that legal translation is not linguistic transcoding did not prevent her from
approaching legal translation both from a linguistic and a cultural perspective She
studied syntactic features of the legislative text and noted that ldquothere is essentially one
basic underlying thought pattern hellip the basic logical structure of legal rules is
expressed by the formula if P then Qhelliprdquo basing her analysis on Coode (p 162) She
also discussed other stylistic features of legislation such as the use of negation and the
impersonal Šarčevićdid not find herself totally constrained by the linguistically
prescriptive aura of legal translation She suggested in fact that legal translators could
be creative in translation She realized that a ldquotranslatorrsquos greatest challenge when
translating the fact-situation of a legal rule is to find suitable ways of compensating
for conceptual incongruencyrdquo (p 149) She exemplified this conceptual incongruency
by citing an example from the Canadianrsquos experience of bilingual legislation In this
example the selection of the common law term ldquowilful conductrdquo as the equivalent for
dol in French caused confusion since the term ldquowilful conductrdquo ldquoincludes not only
acts performed with intention but also acts performed carelessly without regard to the
consequencesrdquo (p 150) Instead of providing a solution for the problem however she
merely commented that the use of descriptive paraphrase by Canadarsquos legal translators
was not a good way to overcome conceptual incongruency (p 151)
The researcherrsquos preoccupation with the linguistic problems of legal translation
may be justified if we view translation as a pure process of linguistic transcoding
However linguistics alone cannot help us to see the whole picture Roebuck and Sin
(1993) rightly pointed out
THE LANGUAGE OF THE COMMON LAW 132
The existence of semantic gaps only proves the truism that different languages have different
ways of organizing the semantic fields of their basic vocabularies Although there are hardly
one-to-one correspondences between them a simple predicate in one language can almost be
mapped onto several correlative predicates in another hellip Likewise the existence of syntactic
gaps only show that different languages have different rules for generating acceptable formal
structures which are simply habitual ways of ordering phrasal and sentential components hellip
Accordingly examples of semantic-syntactic gaps show only that symmetry rarely exists
between languages hellip Translation as a linguistic activity for facilitating communication
between different language communities must take that linguistic fact as its starting point but it
decides nothing Translationrsquos primary task is to convey the various types of meaning which are
independent of the conventionalized arbitrary features of human languages And exact
translation as a meaningful concept must be understood in that context and as a linguistic
activity must proceed under those constraints (pp 200-201)
Thus Linguistic problems are not as difficult as the theorists reckoned them to be The
translatorrsquos greater challenge is the cultural problems to be faced in the process of
translation of legislation (or bilingual legislation) as Sin (1992) pointed out
The creation of a Chinese Common Law vocabulary for the rewriting of the Common Law in
Chinese will signify a large-scale assimilation of the entire English legal tradition into Chinese
culture (p 98)
The construction of every legislative rule was a process of conceptualization and the
legal drafter ldquowill usually draft from a precedentrdquo as Watson-Brown observes (1998
p23) To summarize the aim of bilingual legislation is to rewrite the common law in
THE LANGUAGE OF THE COMMON LAW 133
Chinese and the two parallel legal texts namely English and Chinese share the same
system of reference ie the common law
54 Case Law Languagemdashthe Language of Judges
In the common law the notion of statutes as the primary source of law is a
recent development and beneath the burgeoning corpus of statues of the past years lie
the bulk of the common law the collection of judgesrsquo judgments that makes all the
rules by which disputes are resolved Judgments are law in action an abstract legal
rule is applied to a set of facts to solve a concrete problem and the solution is justified
Judges actually play an important and integral part in the common law system as it
has evolved In the common law system a judge is first called upon to find the law
next to interpret it then to articulate it and finally to apply it to the facts and the
situation presented in the courtroom It is the first two steps to find the law (with the
help of counsel) and to interpret it which come closest to the business of actually
making law Although much of the primary onus for the making of rules now lies on
the legislature it is still acknowledged that the common law system has historically
preferred to make law by adjudication than by legislation Consequently judge-made
law still plays and will play a significant part in the common law
In the case of Hong Kong where the law is built upon the common law judicial
precedents thus carry the same legal weight as legislation The legal rules and
principles that judges use to resolve present disputes will be applied to similar
disputes in the future As judicial precedents which are all reported in English are the
bases for the interpretation and application of statutes in the common law system it
THE LANGUAGE OF THE COMMON LAW 134
will be difficult for legal practitioners to cite authorities in bilingual judicial
proceedings if there are no Chinese supporting materials for the respective ordinances
Besides as a judgment carries legal weight the translated version should be written in
precise language that captures the exact legal meaning of the original Translation of
binding precedents is therefore no less important than the translation of statutes
However in Hong Kong only a number of selected judgments have been translated
into Chinese The following reason was provided by the Department of Justice
(2004)89
The principles of the Common Law are to be found in the judgments of the courts both in Hong
Kong and in other Common Law jurisdictions around the world The language in which those
judgments have been delivered over the years is almost exclusively English There are hundreds
of thousands of reported cases which form the basis of the Common Law and it would
obviously be impractical to attempt to translate these into Chinese While in future there is likely
to be an increasing number of judgments in Hong Kong delivered in Chinese English will
continue to be the only medium in which the majority of judgments from overseas is reported
Given the above-mentioned constraint there is no denying that translating English
judgments into Chinese is of great significance and we must now explore the
language of the judgments and the difficulties encountered in the translation process
To solve the problem of cultural transfer in translating common law judgments
into Chinese requires the legal translator to fully understand the language of the
judgments in the first place Judgments can be found in law reports These serve as the
89 The passage is quoted from the Department of Justice website Information based on the
Departmental publication Legal System in Hong Kong printed in 2004
THE LANGUAGE OF THE COMMON LAW 135
written record of the explanation that judges give of their reasoning and they enable
ready access to previous judgments90 Generally judgment as a form of law is
formal and authoritative The common law judge writes opinions as a narrator of the
law91 The prestige he enjoys in his professional milieu allows him to fully and openly
assert his own interpretation of the law and to present it in through argumentation
Consequently the decision-giving process involves two intertwined process namely
the interpretation of the legal rules that are being applied to the specific case and
factual situation and the argumentation supporting why a decision is made in one way
rather than another Although each judgment will to some extent reflect the individual
styles of the judge arriving at it it will always stand on these twin pillars of
argumentation and interpretation92 These modes in turn can shape the distinctive
features of the language of judgments93
90 A judgment can be divided into four components The first component is a brief description of the
important points in a particular case The second component is an introduction It gives the readers a
general idea of the case The third component is a list of cases referred to in the judgment The fourth
and the most important component is the main body of the judgment It is in this part that the opinions
of the judges are delivered 91 The main body of the judgments has two parts ratio decidendi and obiter dictum As the rationale of
particular judgment ratio decidendi states the underlying principle of law and represents the logical
basis of judicial decision Unlike obiter dictum which is the remark or observation made by a judge
while issuing a ruling ratio decidendi has binding force 92 After examining some technical and semi-technical legal terms that judges frequently use in giving
their decisions Alcaraz amp Hughes (2002) observed that ldquoin keeping with the British tradition of
strongly reasoned judicial opinion judgments are often couched in a style that is flavoured with the
personality of their makerrdquo (p 114) In addition to their role in convincing the parties judges also argue
about the appropriateness of the norm being applied (the stare decisis function of judgments) Thus
judicial opinions are also aimed at persuading their readers of the correctness of the decision reached
Modes and means of persuasion such as explicit argument rhetoric metaphor and syntax are
sometimes language-specific and this may cause difficulties to the legal translator 93 Since many legal disputes are battles over the meaning of a statute contract testimony or the
constitution judges must interpret language in order to decide why one proposed meaning overrides
another And in making their decisions about meaning appear authoritative and fair judges often write
THE LANGUAGE OF THE COMMON LAW 136
Judicial language thus constitutes a special genre and research into the language
of judges has revealed a number of linguistic and legal problems which can ensnare
the translation process Judgments are important texts in legal education and
constitute a considerable amount of the required reading of law professionals A
generic structure of judgments had been identified (Bhatia 1993) as well as a
relationship between the structural elements and the communicative functions of
declaring and justifying Alcaraz amp Hughes (2002) considered that linguistic problems
affect ldquoonly the tone and style of the judgment and are in no way concerned with
matters of lawrdquo (p 115) One prominent linguistic feature is the use of the first person
singular Another is the flavour of relatively colloquial expressions introduced in
order to ldquotemper the severity of the law to make the opinion sound more humane and
to create an impression of reader-friendlinessrdquo (p 116) Maley (1994) also approached
the use of the first person singular from the view of modality which he found played
an important role in the justifying function of judgments He cited a famous speech
delivered by Lord Atkin as an example of the semantics of modality Elaborating on
Hallidayrsquos distinction between two kinds of modality modalization and modulation
Maley explained
about the nature of linguistic interpretation Thus the language itself serves an interpretive function
Both legal interpretation and legal reasoning concern the application of legal rules Every rule is
formulated within a certain context but does not explicitly reflect that foundation The background
comprises the elements of the time the place the reason the process and the people who make the rule
Once a legal rule is written down in the form of language it loses its background simply because of the
inherent limits of language This linguistic constraint makes the application of legal rules all the more
difficult Where a judgment seeks to justify a particular interpretation of a norm the judicial opinion is
actually an exercise in persuasion it is a subtle interweaving of a statement of a legal norm and the
justification for both the normative content and the form in which it is stated Judges must be free to
use rhetorical techniques that are central to the persuasive force of a text
THE LANGUAGE OF THE COMMON LAW 137
Modalization expresses the varying degrees of probability and usuality while modulation
expresses the various degrees of obligation and inclination Both modalization and modulation
are expressed from the viewpoint of the speaker they can nevertheless be expressed as thoughts
they are objective or subjective In Lord Atkinrsquos speech hellip when he projects lsquo[persons] that I
ought reasonably to have in contemplationrsquo from lsquothe answer seems to behelliprsquo the latter [is] an
example of an objective modalisation and the former a subjective modulation That is Lord
Atkin is saying what in his opinion the law should be (1994 p46)
Maley (1994) thus concluded that ldquomodalisation and modulation are the chief
linguistic means of expressing the justificatory and declaratory functions of
judgmentrdquo (p 46) Unlike the consistent formal and authoritative language of the
legislation the language of judgments may be tainted with the personal style of
individual judges The legal translator should always take into consideration the need
to preserve the stylistic feature of judgments
Solan (1993) carried out a detailed examination of the linguistic aspects of the
law to illustrate ldquohow and why judges write about the structure and meaning of
language to justify their decisionsrdquo (p 1) Solan used various examples to illustrate
the way linguistics entered the process of judicial decision making analysis of the use
of adjectives in jury instruction analysis of the relationship between adverbs and
prepositional phrases and cases focused on the meaning of certain words in the
legislation Judges often faced linguistic issues when lawyers attempted to interpret
legal rules in the legislation or legal principles laid down in previous judgments in
favour of their own clients (p 28) The final decision rested with the judges
THE LANGUAGE OF THE COMMON LAW 138
hellip the judge hellip will often resort to legally recognized principles of interpretation such as
attempting to divine the intention of the drafters of the document On occasion these principles
are linguistic and it is upon these that I will focus hellip Included among the examples are a
linguistic-legal principles called the last antecedent rule principles governing the interpretation
of conjunction and disjunction (and and or) rules for the interpretation of pronouns and a
debate about the proper scope of adjectives (Solan 1993 p 28)
The above mentioned jurilinguistic principles are a useful starting point when trying
to understand the linguistic problems that the legal translator may encounter The ldquolast
antecedentrdquo rule is the doctrine of interpretation that states that the qualifying words
or phrases in a statute refer to the immediately preceding language unless common
sense indicates that they were intended to apply to something less obvious or more
distant It thus forms an interpretive guide that courts may use to decipher uncertain
statutory language94 In summary a linguistic approach gives us some valuable
insights into the language of judgments and their interpretative rules
In legal translation it is crucial for the translator to understand the underlying
legal principles and legal reasoning in order to transfer the culture of the case law into
Chinese As already shown above rules and principles in each subject of the law have
been developed into concrete and coherent constructions that make up the common
law today These rules and principles have been consistently developed by judges in
94 The andor rule is an interesting and controversial one Legal drafters try to be clear by using
ldquoandorrdquo However there are still many case laws interpreting these two conjunctions Although courts
generally prefer interpretations that make sense of language over ones that turn it into nonsense the
judicial interpretation of ldquoandorrdquo is sometimes an exception How this could be implemented in an
adversarial system was somewhat difficult to see since the interpretation of statutes and legal principles
was considered to be a question of law and therefore the domain of judges (Tiersma 1999 p 130)
THE LANGUAGE OF THE COMMON LAW 139
their decisions95 In section 33 of chapter 3 we have identified the very culture of the
common law as a set of legal concepts and legal principles The concrete
representations of this culture are evident in the various judgments Legal principles
derive from the process of legal reasoning while legal reasoning is based on legal
principles The two are inseparable in a judgment A definition of legal reasoning
given by Carter (1994) described its composition
Legal reasoning describes how a legal opinion combines the four elements the facts
established at trial the rules that bear on the case social background facts and widely shared
values When judges reason well their opinion harmonizes or lsquofits togetherrsquo well these four
elements (p 15)
Carter (1994) also pointed out that ldquoJudicial opinions hellip give meaning to all types of
legal rules hellip precedents in many cases are vehicles for rationalizationsrdquo (pp15
143)96 This means that only if we understand the judicial opinions can we understand
the meaning of legal concepts or principles and hence case law as a whole97 Maley
(1994) thus concluded that ldquocommon law judges do not regard the application of the
95 The common law system is based on the legal principle of deciding points in litigation according to
precedent This applies both to application of the common law and interpretation of statute Under this
principle decisions of courts on matters of law are binding on subordinate courts or tribunals and if
not binding are highly persuasive on the court itself or equivalent courts 96 It is argued that there are at least three things which legal theorists could mean by legal reasoning (a)
reasoning to establish the existing content of the law on a given issue (b) reasoning from the existing
content of the law to the decision which a court should reach in a case involving that issue which
comes before it and (c) reasoning about the decision which a court should reach in a case all things
considered 97 Reasoning by analogy is integral to legal reasoning in the common law Any theory of legal
analogizing that seeks to explain the way in which precedents are utilized must account for the
influence of legal principles on the creation of legal analogies and for the use of analogies as a means
to test and refine these principles
THE LANGUAGE OF THE COMMON LAW 140
principle of law to the facts of the case as a purely mechanical process Reasoning is
involved a kind of reasoning by analogyhellip In giving judgment judges hellip make
explicit the reasoning processes which have led them to that decision the cases they
have considered the analogies they have considered and rejectedmdashin short their
individual lsquofullest examinationrsquordquo (p 43) Legal analogizing thus plays an important
role in determining the scope of principles themselves98
Let us take an example from criminal cases to illustrate how legal principles in
the judgments might be identified In the common law tradition the vast majority of
criminal law is un-coded and the legal concepts and legal principles could be found
only in the judgments One essential legal concept in criminal law is mens rea This
focuses on the mental state of the accused and requires proof of a positive state of
mind such as intent recklessness or wilful blindness Some level of mens rea is
always a required element of the crime with which the accused is charged and must
be proven by the prosecution Therefore the principle of mens rea is the fundamental
principle of the criminal law In the famous mens rea murder case R v Nedrick 99 it
was made plain by Lord Lane CJ that the mens rea of intent could be inferred by a
jury when the defendant knew that death or really serious injury would come about as
a ldquovirtual certaintyrdquo of the act contemplated and done The House of Lords held in R v
Woollin100 reasoning by analogy that the principle of mens rea was applicable to the
present issue However it developed the principle of mens rea by suggesting that the
use by the trial judge is of ldquosubstantial riskrdquo rather than ldquovirtual certaintyrdquo Actually
98 Principles are empty unless tested by reference to concrete examples Any complete model of legal
reasoning and legal analogizing must simulate the manner in which principles influence the creation of
analogies and the way in which principles are themselves tested and refined on a case by case basis 99 [1986] 1 WLR 1025 100 [1998] 3 WLR 382
THE LANGUAGE OF THE COMMON LAW 141
there are other cases that address the principle of mens rea ie R v Moloney 101 and
R v Hancock and Shankland102 These cases worked together to clarify the legal
concept and legal principle of mens rea especially the meaning of intention in terms
of acts that cause grave bodily harm or death
We can see that judgments are part of a community and part of a tradition103
Judgments are law in action where abstract legal rules are applied to solve concrete
problems and its justification are provided Most importantly judgments state what
the law is and define the legal concepts and legal principles embodied in the law In
other words judgments make up the most substantial part of the referencel system of
the common law against which the legal terms should be construed Therefore we
need resort to judgments for the real meaning of a translated legal term in the
legislation in order to understand the concept it stands for and related legal concepts
and legal principles In this sense translation of judgments is one of the most
important ways of building a metalinguistic mechanism for the common law As
noted in section 223 of chapter 2 cultural transfer is eventually effected by
metalinguistic operation as such
101 [1985] 1 All ER 1025 102 [1986] 2 WLR 257 103 In this connection Goodrich (1990) remarked
The Common Law will always exceed its particular texts its particular references its positive
forms To know the law is a matter of knowing an antique and unwritten tradition that exists
outside of history beyond all texts in the inaugural realm of things divine and to be divined
(augured) In Cokersquos words even where it is a matter of reading the law it is a question of reading
not simply the words of the text but also the tradition that accompanies them ( p 117)
Chapter 6
Cultural Transfer in Translating the Common Law into Chinese
61 Transfer of the Legal Culture of the Common Law
611 Problems in Translating the Common Law into Chinese
As we saw in the previous chapter the language of the common law is a complex
collection of linguistic habits that have been developed over many centuries one that
judges lawyers and other legal professionals have learned to use strategically Its
distinctive linguistic features accordingly reflect the underlying conceptual thinking of
such users In the same chapter we found that the legal culture of the common
lawmdashits legal concepts and legal principlesmdashis intricately woven into the texture of
its language In this section we will further analyze how both the legal culture and the
language of the common law pose difficulties to the legal translator as she sets about
her work
The problems that arise when translating the common law into Chinese are
closely related to both the legal culture of the common law and the specific features of
English legal language and we can categorize them into two major groups
(1) Problems arising from cultural differences between English and Chinese
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 143
The most daunting aspect of translating the common law into Chinese is the
culture-specific quality of the source legal texts In many cases a difference in the
mere form of wording amounts to a difference in law
For instance if A lends money to B on mortgage and stipulates that the interest shall be 5 per
cent but if not paid promptly 6 per cent the latter part of the provision is void as a penalty Thus
B need pay only 5 per cent even if he does not pay promptly Yet if A had provided that interest
should be 6 per cent but if paid promptly 5 per cent the whole would have been good (Williams
1948 Jan pp 78-9)
In essence both provisions stipulate the same thing B to pay 5 per cent if he pays
promptly if not 6 per cent Yet the first formulation is not allowed by law whereas
the second is allowed Following the wording of the source text would seem to be a
play-safe strategy in legal translation and in the present case there is no immediately
apparent reason for the translator to deviate from the original wording But consider
the following case
If A gives property on trust for B lsquobut if B marries then for Crsquo the gift to C is struck out because
it tends to induce B to remain unmarried and the procreation of legitimate children is regarded as
a public interest Thus on this form of words B will take absolutely But if the words used were
lsquoon trust for B until he marries and thenceforth for Crsquo the gift over would be valid and B would
lose the property if he were to marry (Ibid p 79)
Here we meet the famous distinction between ldquobut ifrdquo and ldquountilrdquo in English law
Again it is obvious that both of the formulations under scrutiny intend to stipulate the
same thing B must give up the property to C once he marries However the
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 144
formulation using ldquobut ifrdquo is regarded as void whereas the one using ldquountilrdquo is valid
The translator may well find that her translation of the second formulation into
Chinese ldquo甲以信託形式將財產贈予乙直至乙結婚為止屆時財產將改贈予丙rdquo
looks rather clumsy and so turn instead to the wording of the first formulation which
looks simpler and more natural ldquo甲以信託形式將財產贈予乙 但如乙結婚 則改
贈予丙rdquo If she does this however she will have turned the original valid formulation
into an invalid formulation
As judicial decisions are sometimes arrived at purely on the particular words
used in a particular case changing the wording of the source text risks producing the
opposite legal effect in the target text This is why lawyers are so cautious over the
words they use This is also why the legal translator is often instructed not to deviate
from the wording of the source text
At a higher level the particular sentence structure of a statute may embody the
spirit of the common law According to Francis Cheung (1991) a penalty provision in
English criminal law is invariably formulated in the negative which is a manifestation
of a fundamental principle of the common law namely the ldquoresidual principlerdquo (pp
304-05) This principle accords citizens freedom to do whatever they like so long it is
not expressly prohibited by the lawmdashfreedom is whatever the law does not expressly
prohibit In contrast traditional Chinese law accords people freedom to do those
things allowed by the lawmdashfreedom is whatever the law allows To illustrate this
point he cited as an example the translation of a section of the Film Censorship
Ordinance 1988
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 145
15 (1) A person shall not exhibit a film in respect of which a certificate of exemption has been
issued under section 9 or a certificate of approval has been issued under section 13 unless the
certificate or a legible photocopy thereof is displayed and kept displayed in a conspicuous
position in or about the entrance to the part of the place intended to be occupied by persons
viewing the exhibition of the film during the period of exhibition of the film
The section was translated into the following two alternative versions
Version 1
15 (1) 任何人上映影片須在影片上映期間將根據第 9 條發給該影片的豁免證明書或其
清晰影印本或根據第 13 條發給該影片的核准證明書或其清晰影印本一直展示在用以容
納觀眾觀看該影片的場所入口或近入口處的當眼位置否則不得放映該影片
Version 2
15 (1) 無論何人不得上映根據第 9 條獲發豁免證明書或根據第 13 條獲發核准證明書的
影片除非在該片整段放映期間將上述證明書或其清晰影印本[或上述核准證明書或其
清晰影印本]展示在用以容納觀眾觀看該影片的場所入口處或近入口處的當眼位置
Cheung noted that Version 1 was more fluent but since it was formulated in the
affirmative and therefore unable to reflect the spirit of the residual principle it was
eventually not adopted On the other hand even though Version 2 sounded a little
unnatural in Chinese it was adopted as the official translation since it conformed to
the legal norm for penalty provisions
Thus in legislative translation the linguistic features of the source text often
dictate how it should be translated Preserving the linguistic features of the source text
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 146
is not as Vermeer and Snell-Hornby alleged transcoding but preserving the culture
of the source text
The language of the common law is also a manifestation of a series of
traditionally well-formed legal concepts These conceptions are the philosophical
foundations of the common law tradition and the basis of the legal principles
cultivated by legal reasoning unique to the conceptualization of the common law
Some common law terms for example are noted for their generality and abstractness
eg ldquoreasonable personrdquo or ldquodue processrdquo Common law language also employs
many abstract concepts that ldquodo not take their meaning from sensed experience but
are normative in characterrdquo (Farrar amp Dugdale 1990 p 77)67 The legal translator
must thus overcome the conceptual differences between English and Chinese Having
shown that legal concepts and legal principles are the major elements in the culture of
the common law we now need to discuss how they pose problems for the legal
translator The following example is taken from the frequently cited case Donoghue
(or MrsquoAlister) v Stevensonmdashthe ldquoPaisley snailrdquo case68 In the case Lord Atkin made
a famous speech which constructed the foundation of the modern law of negligence69
67 Farrar and Dugdale (1990) created a vivid simile to illustrate the importance of concepts in the
Common Law They remark ldquoIndeed conceptual thinking came to dominate the English Common
Lawhellip Concepts are more like chess pieces They can be maneuvered to produce certain results but the
players have a choice as to the move Similarly lawyers and judges often have a choice as to how they
will move the concepts They way in which they are moved and are applied to facts involves a process
of reasoning helliprdquo (p 78) 68 In this ground-breaking case a woman May Donoghue claimed to have been made ill by a bottle of
ginger beer she had bought in a cafeacute in Paisley Mrs Donoghue sued not the proprietor of the cafeacute but
the manufacturer of the drink She argued that the manufacturer had been negligent in not noticing that
the bottle contained a snail before filling it with ginger beer and sealing it Donoghue v Stevenson was
ground-breaking in Scots law as previously the customer would have been expected to sue the
shopkeeper rather than the manufacturer with whom she had no lsquocontractrsquo However in this instance
the drinkrsquos manufacturer was found liable for damages as they had neglected to provide a system to
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 147
Firstly it is evident that there are many terms peculiar to the Common Law such
as ldquoduty of carerdquo ldquoliability for negligencerdquo ldquoacts or omissionsrdquo ldquoreliefrdquo ldquoremedyrdquo
In the Common Law duty of care is the legal obligation as a citizen in societymdashit is a
question of law that requires the judge to determine if the duty is under a legal
obligation to exercise reasonable care in favour of the plaintiff Thus mastering the
cultural implications of the above legal concepts the ldquocultural immersionrdquo suggested
by Curran (1998 p 83) was a pre-requisite for the legal translator to comprehend
thoroughly the meaning of the English legal text As noted in section 52 of chapter 5
the effort to find Chinese equivalents for the above English terms would be futile
since there are no terms available in Chinese to express some of the most elementary
notions of the common law The legal translator in Hong Kong has to overcome the
difficulty of translating terms expressing concepts which are absent in Chinese
protect the public in such a way that lsquosnails would not get into the said bottle render the said
ginger-beer dangerous and harmful and be sold with said ginger-beerrsquo 69 Lord Atkinrsquos remarkable judgment in this case reads in part
At present I content myself with pointing out that in English law there must be and is some
general conception of relations giving rise to a duty of care of which the particular cases found
in the books are but instances The liability for negligence whether you style it such or treat it as
in other systems as a species of lsquoculparsquo is no doubt based upon a general public sentiment of
moral wrongdoing for which the offender must pay But acts or omissions which any moral code
would censure cannot in a practical world be treated so as to give a right to every person injured
by them to demand relief In this way rules of law arise which limit the range of complainants
and the extent of their remedy The rule that you are to love your neighbour becomes in law you
must not injure your neighbour and the lawyerrsquos question ldquowho is my neighbourrdquo receives a
restricted reply You must take reasonable care to avoid acts or omissions which you can
reasonably foresee would be likely to injure your neighbour Who then in law is my neighbour
The answer seems to bemdashpersons who are so closely and directly affected by my act that I ought
reasonably to have them in contemplation as being so affected when I am directing my mind to
the acts or omissions which are called in question (Donoghue (or MrsquoAlister) v Stevenson [1932]
All ER Rep 1 [1932] AC 562 House of Lords [1932] AC 562)
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 148
Secondly since a set of legal principles is formulated and developed by the courts
based on the significant legal concepts of the common law any lack of methods to
represent these legal principles constitutes another problem For example the common
law concept of tort consists of a breach by the defendant of a legal duty to take care not
to damage the plaintiff or his property and consequent damage from that breach Lord
Atkin in this leading case of Donoghue (or MrsquoAlister) v Stevenson held that while the
decided cases might each examine particular types of liability there must be a common
rationale He developed the argument that the decided cases had evolved to a general
principle which covered the immediate case In this case the applied principle was the
already existent neighbour principle which prescribed that you were to love your
neighbour This then became in law the prescription that you must not injure your
neighbour Lord Atkin then suggested a general test for when a duty is owed and the
lawyerrsquos question ldquoWho is my neighbourrdquo received a restricted reply ie you must
take reasonable care to avoid the acts or omission which you can reasonably foresee as
likely to injure your neighbourmdashwho then in law is my neighbour The answer
seemed to Lord Atkin to be persons who are so closely and directly affected by my act
that the actor ought reasonably to have them in contemplation as being so affected when
he was directing his mind to the acts or omissions which were called in question Thus
the legal duty was owed to persons whom one ought reasonably to have in mind as
being affected by onersquos particular behaviour70 The House of Lords in this case held
that manufacturers of products do have a duty to the ultimate consumer of their product
to take reasonable steps to prevent defects in its products which are likely to cause
damage to person or property The above reasoning established this as an important
case in the area of product liability In Lord Atkinrsquos approach we can note the common
70 This case is well-known as it sets out ldquothe circumstances under which a legal duty to take care will
ariserdquo (Shum 1992 p 205)
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 149
law spirit of stare decisis Lord Atkin did not ignore the precedents Instead he found
within them an underlying principle which he then applied In a sense Lord Atkin
looked backward before he moved the law forward to develop the legal concepts and
legal principles In translating such case law it is obvious that the underlying principles
are alien to Chinese but are a sine qua non for our current discussion of the culture of
the common law The legal translator thus faces the problem of finding a way to
represent such legal concepts and legal principles in Chinese
(2) Problems arising due to the differences between the syntactic arrangements word
order and language systems generally of English and Chinesemdashfor brevityrsquos sake
ldquolinguistic problemsrdquo71
Firstly frequent use of the passive voice is characteristic of the English common
law Voices are rather considered to have particular functions of their own than being
used for variation in the legal text The passive voice was sometimes viewed as
helping to convey the objectivity that law-makers seek to achieve ldquohellipthe passive of
the British formula renders the authority of the speaker more remote neutral and
abstract reducing the immediacyrdquo (Bowers 1989 p 28) In addition there are
instances where the passive is chosen for thematic reasons Also take the example in
sect13 of the translation of ordinance with the heading Apportionment of liability in
case of contributory negligence
Below is the English version
71 It is necessary to discuss linguistic problems since as we discussed in chapter 1 translation remains
linguistic transcoding Without a thorough understanding of the linguistic problems posed by the
differences between English and Chinese we cannot discuss the problem of cultural transfer properly
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 150
hellip a claim in respect of that damage shall not be defeated by reason of the fault of the person
suffering the damage but the damages recoverable in respect thereof shall be reduced to such
extent as the court thinks just and equitable having regard to the claimants share in the
responsibility for the damage (Amended LN 337 of 1989) (Cap 23 Sect 21)
The Chinese version reads as follows
hellip則就該損害提出的申索不得因受損害者有過失而敗訴但就該申索可追討的損害賠償
則必須減少而減少的程度是法院在顧及申索人對損害應分擔的責任後認為是公正與公
平的款額
Obviously the passive voice is employed above in order to foreground or thematize
ldquoclaimrdquo and ldquodamagesrdquo and these nouns take up subject position The legal translator
should consider whether it is appropriate to translate the English passive into Chinese
using sentences with ldquo被rdquo ldquo受rdquo or ldquo獲rdquo Therefore the Chinese translation follows
the English structure in conformity with the thematic emphasis by using the typical
topic-comment structure in Chinese
Secondly lengthy and complicated sentences are frequently used often
involving nominalization subordination and coordination all of them surface features
that help to make the common law seem so markedly complex72 Nominalization can
increase the inclusiveness of an expression but can also create a certain degree of
abstraction since the noun phrase may substitute for an entire subordinate clause As
72 A nominalization is a noun phrase that has a systematic correspondence with a clausal predication
which includes a head noun morphologically related to a corresponding verb
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 151
a result post-modification is largely used increasing the complexity73 The extensive
use of coordination and subordination structures in general leads to long and
complicated sentences in order to achieve the goal of inclusiveness precision and
clarity Consider the following sentences in Donoghue (or MrsquoAlister) v Stevenson
The liability for negligence whether you style it such or treat it as in other systems as a species of
culpa is no doubt based upon a general public sentiment of moral wrongdoing for which the
offender must pay
But acts or omissions which any moral code would censure cannot in a practical world be treated
so as to give a right to every person injured by them to demand relief
In the above two sentences the subjects ldquoliabilityrdquo and ldquoacts or omissionsrdquo are
followed with more or less elaborate post-modification ie the dependent clauses
introduced by ldquowhetherrdquo and ldquowhichrdquo respectively The legal translator needs to
understand the logical progression and legal reasoning underlying these complex
sentences when striving for semantic equivalence between English and Chinese
73 For varied forms of post-modification Crystal amp Davy suggest a four-fold division
a a preposition with a nominal group (ie a prepositional phrase) eg lsquothe defence of the free
worldrsquo
b a non-finite clause eg lsquothe diazo- and azo-compounds discussed aboversquo
c a dependent clause which may be introduced by a pronoun or simply attached directly to the
nominal it modifies eg lsquothe man I knowrsquo
d an adjective eg lsquo God the Father almightyrsquo (in Hiltunen 1989 p79)
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 152
612 Legal Translation as Cultural Transfer-- Two Levels of Transfer
In this section we will not only present a theoretical framework for analyzing
legal translation as cultural transfer but also provide principled methodologies for
legal translation especially for translating the common law into Chinese It has been
noted that legal translation as cultural transfer inevitably involves the linguistic and
conceptual adjustments of the translating language Translating the common law into
Chinese is thus a paradigm of cultural transfer as foreignization and necessitates the
importation of common law legal concepts and legal principles into Chinese How
exactly could common law culture be transferred into Chinese
Figure 61 which recalls the more general process diagram of Figure 32
illustrates the process of translating the common law into Chinese in order to achieve
the conceptual semantic equivalence noted in section 223 of chapter 2
ST (common law in English) TT (common law in Chinese)
ST is the
representa-
tion of SC
SC is
embedded
in ST
Text of the English
common law
(legislation and case
law)
Linguistic
transcoding
Text of the English
common law in
Chinese (legislation
and case law)
The missing link
between the
Chinese translation
and the culture of
the common law
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 153
SC (Culture of the common law) SC (Culture of the common law)
Figure 61 Process of Translating the Common Law into Chinese
The problem is one of cultural transfer Since section 4(1) of the Official
Languages Ordinance (Cap 5) provides that all ordinances shall subject to certain
exceptions be enacted and published in both official languages (ie English and
Chinese) Section 10B (1) prescribes the fundamental principle of equality between
the two language versions of Hong Kong laws It provides that both language texts of
an ordinance shall be equally authentic and that the ordinance shall be construed
accordingly This means the Chinese text is neither subordinate to nor a mere
translation of its English counterpart74 However such a stipulation of the ldquosection
alone is still not sufficient to make the Chinese text a meaningful representationrdquo (Sin
1998 p 205 the authorrsquos italics) As illustrated in figure 61 even though we conjure
up a Chinese text that translates the English common law (legislation or case law)
and use a range of techniques neologism borrowing etc to arrive at semantic
equivalence this still does not mean that the Chinese text is capable of as is the
English version representing the culture of the common law We still need to find out
how to in Sinrsquos (1998 p 195) words establish the ldquomissing link between language
74 BLIS website A paper Discussing Cases Where the Two Language Texts of an Enactment are
Alleged to Be Different
Culture of the
common law legal
concepts and legal
principles in Chinese
Culture of the
common law legal
concepts and legal
principles
Transference of
the legal culture
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 154
and lawrdquo mdashto be precise the missing link between the Chinese language and the
culture of common law In this connection Sin (1998) rightly points out
All large-scale cultural transfers begin in the absence of a readily usable language The first and
most natural response of the native culture is to make an attempt to naturalize the foreign
culture Where it has a close affinity to the native culture naturalization or minor adjustment
may be adequate But where it is one of great complexity or radically different the native
culture will find it necessary at some point to change and adjust its language so as to make it
suitable for assimilating it hellip In the absence of an established Chinese legal language translating
Hong Kong laws into Chinese without the benefits of naturalization and subject to enormous
constraints is in many ways tantamount to creating a new form of Chinese Special lexical and
syntactic devices were required to cope with the rich and highly technical vocabulary of the
Common Law as well as its distinctive mode of thinking (pp 136-37)
We can see that cultural transfer is first and foremost linguistic transfer As has been
shown in section 211 any translation necessarily involves transcoding on the
linguistic level Where no Chinese term exists to express common law concepts new
terms have to be created Sager also noted ldquoNew terms are regularly introduced into
the language either to fill a gap created by the introduction of a new concept or to
replace an existing less efficient termrdquo (1990 p 114) The Chinese language needs to
be adjusted to accommodate new concepts representing one level of cultural
transfermdashtransfer at the linguistic level However common law Chinese cannot
acquire its new meanings unless these are understood with reference to the English
common law To explain this point Cao (2004) remarks
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 155
It is a fact that when Common Law concepts are translated into Chinese very often new words
need to be created as such concepts do not exist in Chinese Even after the new linguistic terms
are brought into being in Chinese through translation their referential objects continue to be
found in English Common Law not Chinese law and need to be understood with reference to
Common Law hellip Legal concepts and their translations are relative relational and referential If
we see a legal concept as an idea a network of cross-referential sign-functions that is a
complex sign-system a translated legal concept can grow and expand its meanings and take on
meanings from two sign systems linguistically and culturally hellip We need to read a translated
legal concept with reference to the legal system it refers to not just in what language it is
re-presented (pp 172-73)
Cao rightly points out the principle of understanding the translated law after the initial
linguistic transfer since the culture behind it could only be identified in the English
common law instead of common law Chinese
Since the present study concerns itself not only with identifying such a linguistic
transfer but also justifying it we draw attention to the fact that such an adjustment is
more dramatic culturally than linguistically Regarding this Sin (1998) presents a
convincing argument
Before the Common Law integrates into the thought-world of the Chinese language the Chinese
text of Hong Kong law is as it stands a mere linguistic recoding of its English counter-parthellipIts
meaning is transparent only to those who have taken part in the process of translation but
opaque to uninitiated eyes Without the support of a legal culture the semantic link between
Chinese and the Common Law exists only between the two texts As has been noted in cultural
translation one cannot recode in one stroke a text and the culture behind it The culture has to be
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 156
developed hellip Yet the legal culture is in a very real sense already existing but embodied only in
English not in Chinese hellip Particularly it is there in the heads of Hong Kongrsquos bilingual
Lawyers who have the culture at their disposal hellip Culture always comes with the reader not the
text (p 138)
It may well seem difficult for the common Chinese language user to read cultural
meaning from the existing common law Chinese since the meaning of the common
law Chinese has to be construed against the English common law before the whole
conceptual system of the common law can be imported into the Chinese language By
pointing out that legal culture is critical to the understanding of common law Chinese
Sin highlights the significance of developing in Chinese the legal culture of the
common law Given that any legal culture resides within the competence and mastery
of legal professionals proficient in both Chinese and English one may ask how a
broadly analogous and comprehensible culture could be developed for the common
people As Sin noted that the meaning of common law Chinese is intelligible to the
legal translator who fully understands the process of translation providing the
justification of the linguistic transfer would be an effective way to tranfer the culture
which the reader has to read into the Common Law Chinese
As has been discussed in section 223 both Jakobson (1959) and Feyerabend
(1987) made clear the significance of metalinguistic operations in introducing cultural
concepts and establishing new languages in target language This applies especially to
legal translation since we can we not only formulate new languages but also
implement these languages by constructing new concepts of law In this sense the
legal translator is using metalanguage as the tool by which languages are established
in terms of other languages For example as indicated in section 422 Meijier (1950)
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 157
explained that Shenrsquos memorials were critical in understanding how and why the
foreign legal terms were translated In other words memorials as metalanguage are
vital for transmitting alien legal concepts into Chinese because they provide the
necessary theoretical framework and working principles It is now clear that apart
from linguistic transfer translation as cultural transfer is ultimately a conceptual
transfer at the metalinguistic level so that to give an account of cultural transfer in
legal translation is ultimately to give an account of how or why legal translators make
translational judgments corresponding to legal and cultural concepts Thus linguistic
transfer aiming to import the culture of the common law inevitably leads to the second
level of cultural transfermdashtransfer at the conceptual level
It is clear from the foregoing discussion that the theoretical framework for
cultural transfer in translating the common law into Chinese accommodates two levels
of transfer linguistic transfer ie transfer at the linguistic level which involves the
adjustment of Chinese language and conceptual transfer at the metalinguistic level
On this account Sin (1989 1993 1996) proposed the following general principles in
connection with translating the common law into the Chinese
(1) Fixing the semantic reference system
(2) Adjusting the target language
(3) Building metalinguistic devices to fill the conceptual gap
Cao (2004) echoes Sinrsquos first principle ldquoSuffice it to say that the Chinese translations of
common law concepts in Hong Kong need to be understood with reference to the common
law if the lsquotwo systemsrsquo are to remainrdquo (p 173) As for the second principle adjustment
on the linguistic level is a must The Chinese language has to be amplified to
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 158
accommodate new concepts Regarding the third principle there are several ways of
constructing a metalinguistic mechanism by which the ldquoconceptual gaprdquo (Joseph 1995
p34) could be bridged the ldquomissing linkrdquo (Sin 1998 p 195) could be reconnected and
the culture of the common law could be eventually transferred into Chinese
(1) Write commentaries or articles explaining why and how the translation was
done including explanatory remarks in the preface identifying the objective and
approach add footnotes in the translated work or appendannotations whenever
possible
(2) Translation of related legal works into Chinese
(3) Compiling English-Chinese legal dictionaries
Although the arduous labours of Hong Kongrsquos legal translators have succeeded
in translating a considerable body of common law terms into Chinese these are by
themselves far from sufficient to enable an understanding of the Common Law
concepts that they are supposed to convey The development of metalanguage fosters
the ability to treat language not just as a way of expressing meaning but as an object
of thought in its own right The justification of the translation in consequence can be
identified in the metalanguage where the cultural concepts are ultimately perceived
and transferred The reader once guided can turn to the metalanguage where the
usage of words in Chinese is modified and where the manner in which Common Law
concepts were translated into Chinese is explained As has been clear from our
foregoing discussion legal translation as cultural transfer takes place at two
levelsmdashlinguistic and conceptual In the next section we will analyze how these two
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 159
levels of transfers can be carried out presenting detailed analyses of selected
translations
62 Cultural Transfer in Translating the Common Law into Chinese -- Analysis
of Selected Translations
Thus far we have examined general problems in translating the common law into
Chinese and proposed the theoretical framework for viewing legal translation as cultural
transfer We have noted that transfer on the linguistic level requires adjustments of the
Chinese language thus establishing linguistic equivalents in Chinese for the source
language Such a conceptual semantic equivalence between the common law Chinese
and the original common law would eventually be achieved on the metalinguistic level
Metalanguage has proved to be effective device in transferring the culture of foreign laws
into Chinese As discussed in section 61 there are three major methods of constructing
the metalanguage for transferring the culture of the common law into Chinese In this
connection the proposed theoretical framework needs to be applied on two levels for a
thorough analysis of the cultural transfer involved 1) explain the linguistic transfer ie
adjustments of the Chinese legal language legal vocabulary in particular and 2) justify
the conceptual transfer at the metalinguistic level ie employment of metalinguistic
devices We will now explore such a two level transfer by analyzing selected translations
from the viewpoint of translated common law terminology
When translating an item of common law terminology into Chinese the legal
translator needs to conjure up a corresponding linguistic sign in Chinese which can
represent the same concept Since translation is much more than the substitution of lexical
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 160
and grammatical elements between two languages a problem arises from the very
beginning if the translator aims at finding the exact equivalent Where no such equivalent
exists the translator has to form (or redefine) a term to represent the original concept The
concept-formation process is what happens when ldquotranscodingrdquo the common law
terminology ie use Chinese to express common law concepts It has been noted that
linguistic adjustments representing a transfer on the linguistic level are indispensable for
concept-formation where there are no equivalents or only partial equivalents Chinese
legal vocabulary needs expanding and adjusting with common law concepts new to
Chinese being introduced in large numbers
Sager (1990) pointed out that the use of ldquolexical innovationrdquo including
neologisms to introduce new concepts (p 30) We can categorize the techniques
involved into two major kinds They are
(1) Lexical expansion (redefinition) by selecting an existent term in the target language
as the equivalent of the term in the source language a new definition is given to this
translating term which eventually results in the expansion of the lexical meaning
(2) Neologism a new word form may be created denoting the meaning of the
corresponding word in the SL There are several ways of coining new words in the TL
(a) Calque ie reproducing the morpheme structure of the SL lexical unit within the
means of the TL to create a new TL lexeme This approach is considered a species of
literal translation75
75 Cai Qilin (2002) points out that calque is the major technique used in translating Buddhist texts in
ancient China
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 161
(b) Paraphrase ie describing or rendering the meaning of a translated term which
has no counterpart in the TL76
(c ) Direct borrowing ie using transcription or transliteration where the TL lexicon
adopts the SL term
We will further discuss the use of above mentioned techniques and present various classes
of examples of translated common law terminology Some of these examples will also
show how the principles were adopted by the Bilingual Laws Advisory Committee77
when searching for appropriate linguistic equivalents for English legal terms As noted by
Jin amp Sin (2004) ldquoBLAC needs to scrutinize the translation by taking into account both
the legal concepts and linguistic rulesrdquo (p 90)78
(1) Translation of technical terms
For group onemdashtechnical terms which are unique to common law language and
culturemdashthe problem is that there is no Chinese equivalent What the translator has to
tackle is how best to conjure up Chinese equivalents for such technical terms given
always that such equivalents are likely to remain unreliable or speculative tools for
elucidating common law meanings or concepts
76 Also called ldquodescriptive paraphraserdquo by Šarčević (1997 p 252) 77 Under Section 4C (1) of the Official Languages (Amendment) Ordinance 1987 the independent
committee was established by the Governor on 28 October 1988 to scrutinize the translation of the
English legislation enacted before 1989 produced by the Law Drafting Division It is abbreviated as
BLAC 78 The original Chinese text is ldquo委員會審閱的內容既涉及法律概念也涉及語言規範rdquo
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 162
Valuable experiences drawn from the arduous work completed by the Hong Kong
translation team under LDD which completed the project of translating the English
common law into Chinese before 1997 reveal two possible major techniques
(a) Create new words in accordance with terminological creation principles
Forming a new term in English may involve techniques such as prefixing suffixing
and compounding As Chinese characters are pictographic they cannot be inflected as an
English word can but Chinese can form semantic representations by putting together two
or more existing linguistic forms to create a new term The principle means of word
formation is composition which has both advantages and disadvantages On the one hand
composition provides a convenient way of combining the meanings of two words to
express a new meaning Readers tend to derive the meaning of a new term which is
composed of two or more existing words simply by adding the meaning of the
components but without understanding the real meaning of the new term However when
coining new terms in Chinese composition remains a major tool Let us consider some
examples
Example 1 Chattels
The official translation for ldquochattelsrdquo is shichan (實產)79 In the common law
among the many terms relating to property chattels denotes the concept of personal
property contrasting with property relating to land The Chinese equivalent for chattels
needs to denote the concept of ldquohellip any kind of property which having regard either to 79 In Rule 27 of Chapter 6A the Chinese version for the expression ldquohellip and chattels in the possession
of the debtorrdquo is ldquo債務人所管有的hellip實產rdquo
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 163
the subject-matter or the quantity of interest therein is not freehold hellip in a more narrow
and more modern sense hellip means movable property or effects which belong personally to
the owner helliprdquo (Jowittrsquos Dictionary of English Law p 328)80
The BLAC first proposed to translate it as dongchan (動產) Later they found that
ldquo動產 as a Chinese legal concept was not an equivalent for lsquochattelrsquo embodied in the
legal concept behind the lsquoBills of Sale Ordinancersquohellip the Common Law concepts of
lsquopersonal propertyrsquo and lsquoreal propertyrsquo were not only alien to the Chinese legal concepts
it was also difficult to find their exact equivalents in the European legal system or
Canadian bilingual legislationrdquo (Minutes of the 3rd meeting of BLAC 17th September
1992 p 4) As shi (實) can be construed as shiwu (實物) ie an article or a thing thus
shichan (實產) can indicate the concept of chattels to some extent One may argue that
shi (實) can also mean shizaide 實在的 (concrete) if taken this sense real estate is also a
kind of property that is concrete ie shizaide (實在的) The Chinese equivalent cannot
pose a real contrast with real estate However it is already the best choice we have This
proves that a complete and precise understanding of the translated terminology requires
frequent reference to the common law semantic system
Example 2 Chose in action
The official translation for the term ldquochose in actionrdquo is jufa quanchan (據法權產)81
In the common law chose in action is a rather complicated and evolving concept relating
80 Further references to this dictionary will be made in the thesis and will be abbreviated as ldquoJowittrsquosrdquo 81 In Section 9 of Chapter 23 the Chinese version for the expression ldquohellip or other legal chose in actionrdquo
is ldquo或其他的法律據法權產rdquo
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 164
to property since it is a property right which can only be claimed or enforced by legal
action as distinguished from one which is enforceable by the taking of physical
possession
BLAC once considered using wuxin dongcha (無形動產) to translate this term
However they later found it unacceptable since ldquolsquochose in actionrsquo referred to property
derived from court it would be wrong to translate it as ldquo無形動產rdquo which referred to a
different conceptrdquo (Minutes of the 10th meeting of BLAC p 28) BLAC also proposed
quanwu (權物) or quanchan (權產) for ldquochoserdquo alone as it is a kind of personal property
and ldquotherefore lsquochose in actionrsquo will be translated as lsquo法據權物rsquo or lsquo法據權產rsquo and
lsquochose in possessionrsquo will be translated as lsquo實據權物rsquo or lsquo實據權產rdquo( Minutes of BLAC
Meeting Translation of the terms relating to property 1992)
However jufa quanchan (據法權產) was finally adopted as the equivalent for chose
in action Obviously jufa (據法) is a better expression than faju (法據) for it sounds more
natural and more compatible with the Chinese way of semantic expression Jufa (據法)
can be properly construed as gengju falu (根據法律) while faju (法據) sounds more
awkward Quanchan (權產) is better than quanwu (權物) since chose is considered as a
kind of personal property Therefore the translation for property should be consistently
chan (產) instead of wu (物) In Mainland China there are mainly two translations for this
term One translation is quanli dongchang (權利動產) which emphasizes that it is a kind
of quanli 權利 (right) relating to property (Xu 2004 p 296) The other translation is
sutiwu (诉体物) which sounds rather awkward and the emphasis is placed on the meaning
of susong 诉訟 (action) (Shi trans 1998) The official translation in Hong Kong is the
best of the three available since it effectively conveys the legal meaning of the English
term and seems more transparent to the readers
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 165
Example 3 Fee simple
The term ldquofee simplerdquo is translated as yongjiu chanquan (永久產權)82 In the
common law ldquofee simplerdquo describes the absolute title to land The term consists of two
words ldquofeerdquo and ldquosimplerdquo Fee means an estate of inheritance in real property while
simple means absolute or without limitation Thus fee simple is the largest recognized
estate in land a title without limitation or end The legal meaning of such a technical term
is clear Accordingly the Chinese equivalent of this term typically consists of two
existing Chinese words yongjiu (永久) and chanquan (產權) meaning permanent title to
real property The Chinese equivalent is easily understood One can see that this is
ownership which lasts forever but this in fact conveys only one essential part of the
meaning of fee simple The full and exact meaning resides in and must be retrieved from
the common law Fee simple is not only permanent ownership of indefinite duration but
something freely transferable and inheritable and is thus used to describe ldquoa freehold
estate of inheritance absolute and unqualified It stands at the head of estates as the
highest in dignity and the most ample in extentrdquo (Jowittrsquos p 779)
Example 4 Estoppel83
82 In Section 6 of Chapter 1014 the Chinese version for the sentence ldquohellip shall vest in the trustees in
fee simplerdquo is ldquo須以永久產權形式歸屬受託人rdquo 83 According to Jowittrsquos estoppel is ldquoa rule of evidence whereby a party is precluded from denying the
existence of some state of facts which he has previously asserted An action cannot be founded on an
estoppel hellip Unlike other evidence an estoppel must be pleaded An estoppel may be waivedrdquo (p 725)
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 166
The translation for the ldquoestoppelrdquo is burong fanhui fa (不容反悔法)84 Estoppel is a
very complex legal term dealing with the role of conscience and truth in a court
proceeding It ldquohellip is a principle of justice and of equity It comes to this when a man by
his words or conduct has led another to believe in a particular state of affairs he will not
be allowed to go back on it when it would be unjust or inequitable for him to do sordquo
(Denning MR p241)85 The doctrine of estoppel evolved over a period of one hundred
years to become a general principle in the common law
The Chinese translation of this technical term is phrasal in form and combines the
meanings ldquonot permittedrdquo (burong 不容)ldquodenyrdquo (fanhui 反悔) and ldquorulerdquo (fa 法)86 We
can partly understand the meaning of this newly created Chinese term from its form
However we still need to resort to the common law to understand it fully87 In Mainland
China there are several different translations for this term such as jinzhi fangong (禁止翻
供)jinzhi fanhui (禁止反悔)bude fouren (不得否认) (Shen 1993 p 65)jinzhi
fanyan(禁止反言) (Li 1988 p 596) and jin fanyan (禁反言) (Yang 1997 p 124) By 84 In Section 98 of Chapter 528 the Chinese version for the expression ldquolaw of estoppelrdquo is ldquo不容反悔
法rdquo 85 Denning MR in Moorgate Mercantile Co Ltd v Twitchings [1976] 1 QB 225 CA at p241 86 Susie Dent (2004) a language expert has an observation about the coined words The
extraordinary thing about new words is that probably only about one percent of them are new Most are
old words revived and adapted (p 8) Thus Semantic change of an old word namely specialisation
generalisation and metaphorical change of a word is a common way of coining new words 87 Stroundrsquos Judicial Words and Phrases also gives an interpretation of the term
Estoppel is a complex legal notion involving a combination of several essential
elementsmdashstatement to be acted upon action on the faith of it resulting detriment to the actor
Estoppel is often described as a rule of evidence as indeed it may be so described But the
whole concept is more correctly viewed as a substantive rule of law hellip Estoppel is different
from contract both in its nature and consequences But the relationship between the parties
must also be such that the imputed truth of the statement is a necessary step in the constitution
of the cause of action But the whole case of estoppel fails if the statement is not sufficiently
clear and unqualified (p 943)
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 167
comparison the official translation in Hong Kong is better since it conveys the legal
meaning of the English term more precisely emphasizing that estoppel is an important
legal principle in the common law
We can see that compound terms are essential in creating Chinese equivalents for the
technical terms Sager (1990) laid out the principles for such term creation88 However
he also acknowledged that the communicative dimension of term creation should be
considered relatively less important Perfect communication could never be achieved as it
required that ldquohellip the recipientrsquos state of knowledge after reception of the text corresponds
exactly to the senderrsquos intention in originating the messagerdquo (Sager 1990 p 100) In the
present case the target readers could be both legal specialists and ordinary people and
their knowledge of the law might differ greatly It is not possible for translators to take the
knowledge scope of all their readers into consideration To assume that a Chinese
translation can ever be produced which will be fully understood by Chinese native
speakers is entirely fallacious since the English common law is opaque for most English
native speakers To transfer the cultural meaning of common law terminology will always
requires conceptual adjustments of the translating language ie Chinese
(b) Adopting an existing word and assigning a new meaning to it89 88 Sager (1990) pointed out that ldquothe International Organization for Standardization (ISO) has for many
years been concerned with providing guidance on the creation of terms hellip ISO document ISOR 704
(Naming Principles)rdquo (pp 88-89) Sagerrsquos highly idealistic requirements include ldquoThe term must relate
directly to the concept the term must be lexically systematic hellip there should be no synonyms
whether absolute relative or apparent hellip terms should not have homonyms hellip be monosemicrdquo (pp
89-90) 89 The English lexicographer Susie Dent (2004) observes of coined words The extraordinary thing
about new words is that probably only about one percent of them are new Most are old words revived
and adapted (p 8) Thus semantic change of an old word namely specialization generalization and
metaphorical change is a common means of coining ldquonewrdquo words
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 168
Creating a new word may not always be the best way of translating terms of art in
the common law In some circumstances lexical expansion (redefinition) is another
option Examples include plaintiff (yuangao ren 原告人) defendant (beigao ren 被告人)
petitioner (chengqing ren 呈請人) respondent (dabian ren 答辯人)90 The legal translator
adopts the existing Chinese legal terms as the translations for the above three technical
terms in the common law However we should be aware that as Chinese equivalents for
common law terms they have different connotations under different legal systems
(2) Translation of semi-technical terms
Semi-technical terms ldquoare much more numerous and their number is constantly
growing as the law changes to meet the developing needs of a societyrdquo (Alcaraz amp
Hughes 2002 p 17) Moreover their semantic meanings are much more complicated
thus constantly setting traps for the translator and creating a labyrinth of semantic
connotation ambiguity partial synonymy and context-dependence A number of such
legal terms may not have a fixed legal meaning in the source text as they will carry
different and specific legal meanings in differing contexts these meanings being
90 BLAC came to a final decision after a number of meetings It once had the following list showing
the proposed Chinese translations for ldquodefendantrdquo ldquoespondentrdquo etc
Existing translation LDDrsquos
Proposal
1 Plaintiff 原告人 原告人
2 Defendant 被告人 答辯人
3 Respondent 答辯人 應訴人
4 Petitioner 入稟人 入稟人
5 Accused 被告 被告
(Minutes of the 22nd meeting of BLAC p 7)
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 169
determined either by the definitions given within the context or by knowledge imported
from common legal practice When translating most of such terms there is no need to
deliberately create new equivalent terms in Chinese since most of them already have
Chinese equivalents for their ordinary meanings As such terms can be further divided
into three sub-categories a variety of translation methods will be discussed
(a) For the first typemdashwhere the legal meaning of the term is shared with its core
meaning the established Chinese equivalent will be adopted However we need to
refer to metalinguistic devices to redefine the meaning in a common law context The
following examples illustrate the nature of the problem
Example 1 Abandonment
Since this term has several legal meanings in the common law one of the official
translations for the term is fangqi (放棄)91 The core meaning of the term is to leave
completely to give up or withdraw One of its legal meanings is shared with its core
meaning ie ldquothe relinquishment of an interest or claimrdquo (Jowittrsquos p 3) So it could
be the ldquoabandonment of a vessel by the crewrdquo ldquothe surrender of a child to an adopted
parentrdquo or an abandonment of possession a right an undertaking or a contract
(Strouds Judicial Dictionary of Words and Phrases p 4)92 In all the above contexts
the existent Chinese term fangqi (放棄) is adopted to convey the said legal meanings
Example 2 Attempt
91 The heading Section 6 of Chapter 221G is ldquoabandonment of applicationrdquo and the Chinese version
reads ldquo申請的放棄rdquo 92 Further references to this dictionary will be made in the thesis and will be abbreviated as ldquoStroudrsquosrdquo
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 170
The official translation for ldquoattemptrdquo is qitu (企圖) The legal meaning of the term is
shared with its core meaningmdashto make an effort at something However as a common
law offence the term attempt is a rather complex legal concept and has been used in a
technical way Attempt ldquois an offence to do any act which is a step not being a merely
preparatory one towards the commission of an offencerdquo (Roebuck 1995 p 73)93 Thus
the legal intention or intent is an essential constituent of the offence of attempt to commit
a crime BLAC once proposed to borrow weixu zui (未遂罪) as used in Mainland China
and Taiwan as the translation However it later found that the concept behind weixu zui
ldquo未遂罪rdquo did not coincide exactly with that of ldquoattemptrdquo in the common law So after
rounds of discussions it finally adopted the existing Chinese term expecting that legal
experts or readers would turn to the numerous case laws to interpret the Chinese
equivalent of the term (Minutes of 10th meeting of BLAC p 12)94
Example 3 Confession
The official translation for ldquoconfessionrdquo is gongren(供認)95 The act of telling or
making known something that is seen as wrong or damaging to oneself is the core
meaning of the term In its legal usage it refers to telling the crime one has committed
93 It is ldquoan endeavour to commit a crime or unlawful act the doing of some offence an act done with
intent to commit a crime and forming part of a series of acts which would constitute its actual
commission if it were not interruptedrdquo (Jowittrsquos p 115) 94 Roebuck (1996) used the Chinese equivalent weixu zui (未遂罪) in the book Digest of Hong Kong
Criminal Law (p 39) However in the Index and Glossary of the book attempt was translated as qitu
zui (企圖罪)
95 In Section 51 of Chapter 227 the Chinese version for the expression ldquothe confession of the
defendant rdquo is ldquo被告人的供認rdquo
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 171
which can be admitted as evidence96 While gongren (供認) is capable of conveying the
termrsquos fundamental concept it should always be construed with reference to its common
law legal context This involves noting inter alia that ldquoIn civil procedure a confession is
a formal admission In criminal law a confession is an admission of guilt made either
judicially that is in the course of a judicial proceeding or not Judicial confession may
operate as an estoppel and if plenary is sufficient to found a conviction as where a
prisoner pleads guilty An extrajudicial confession never operates as an estoppelrdquo
(Jowittrsquos p 415)
Example 4 Negligence
The term ldquonegligencerdquo is officially translated as shuhu (疏忽)97 The core
meaning of the term is failure to act with the prudence In the common law
ldquonegligence is not just a state of mind but rather the failure to meet an objective
standard of behaviour the standard of conduct expected of a reasonable person helliprdquo
(Roebuck 1995 p 20) Since part of the termrsquos legal meaning overlaps with its
ordinary meaning the ordinary Chinese equivalent was adopted as its legal equivalent
In the common law the term ldquonegligencerdquo is a rather complex legal concept in the
law of tort The concept of negligence is central to the tort system of liability The
negligence concept centres on the principle that every individual should exercise a
96 Stroudrsquos gives interpretation for the term ldquoconfessionhellipis an admission the words of which
considered objectively and in their context expressly or substantially or inferentially admit guilt
(Anandagoda v R [1962] 1 WLR 817)rdquo (p 547) 97 In Chapter 71 the Chinese version for the expression ldquonegligence or other breach of dutyrdquo is ldquo疏忽
或其他不履行責任rdquo
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 172
minimum degree of ordinary care so as not to cause harm to others98 Thus duty of
care breach of the duty causality and injury are four essential elements of the offence
of negligence There is a long list of judicial interpretations for this term running to 21
entries in Stroudrsquos Again the legal concept of negligence could only be properly
construed against the semantic referential scheme of the common law
Example 5 Public Place
The term ldquopublic placerdquo is translated into gongzhong defang or gongzhong
changsuo (公眾地方公眾場所) which at first glance seems the same as the termrsquos
ordinary meaning in Chinese However a close examination would show that the
legal meaning of the term is not exactly the same since ldquothis expression occurs in
many Acts of Parliament which declare such and such a thing to be an offence if done
in a lsquopublic placersquo In each case the meaning depends upon the context and upon the
object of a statute A place may be a public place at one time and not at other timesrdquo
(Jowittrsquos p 1461) Strouds also has 21 entries for case law definitions and the Hong
Kong Ordinances also contained their own definitions99 The legal meaning of the
98 The term negligence has ldquotwo meanings in the law of tort it may mean either a mental element
which is to be inferred from one of the modes in which some torts may be committed or it may mean
an independent tort which consists of breach of a legal duty to take care which results in damage
undesired by the defendant to the plaintiff rdquo (Jowittrsquos p 1227) 99 Section 3 Interpretation of words and expressions of Chapter 1 INTERPRETATION AND
GENERAL CLAUSES ORDINANCE in the Hong Kong Ordinances stipulates
public place (公眾地方公眾埸所) means-
(a) any public street or pier or any public garden and
(b) any theatre place of public entertainment of any kind or other place of general resort
admission to which is obtained by payment or to which the public have or are permitted to have
access
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 173
term is thus heavily context-dependent100 It should be noted that translation of such a
semi-technical term usually needs much research on the part of the legal translator
including an examination of its different common law contexts
(b) For the second typemdashwhere part of the legal meaning of the term overlaps with its
core meaningmdashwe can once again use the ordinary Chinese equivalent plus lexical
expansion or we can create a new term The legal meaning of these terms can be
inferred from various interpretations of cases Therefore frequent reference to the
cases is a better way to understand meanings in different contexts Examples include
the following
Example 1 Discharge
The two main entries for ldquodischargerdquo in the official translations are jiechu or jieyue
(解除 or 解約) In its ordinary usage the core meaning of discharge is to relieve of
obligation responsibility etc In its legal usage meanings differ with different contexts
and part of the legal meaning overlaps with the ordinary meaning When used in the sense
of ldquoto discharge a right or obligationrdquo101 or to be ldquofreed from hellip debts provable in the
100 Roebuck (1995) also pointed out the different interpretation of the term in different contexts in the
Hong Kong case laws
The phrase lsquopublic or a section of the publicrsquo was discussed in Wong Pik-har [1987] HKLR 373
private premises may also be a public place A shop is a public place while it is open Ng
Chun-yip [1985] HKLR 427 Similarly the corridor of a domestic building is at all times a
public place hellip In Lam Shing-chow CA 18385 it was held that a common corridor on the
twelfth floor of a private building was not a public place because neither the public nor a section
of the public were permitted access to it (pp 164170) 101 For example in section 33 of Chapter 29 ldquoa good dischargerdquo is translated as ldquo充分的責任解除rdquo
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 174
bankruptcyrdquo (Jowittrsquos pp619-20)102 the existing Chinese equivalent jiechu (解除) was
adopted When used in the law of contract a discharge of contract means that the contract
is no longer binding Therefore another Chinese term jieyue(解約)103 was adopted to
express this concept
Example 2 Malice
The term ldquomalicerdquo is officially translated as eyi (惡意)104 When used as an ordinary
term malice means desire to cause pain injury or distress to another However this term
as applied to the common law does not necessarily mean that which must proceed from a
spiteful malignant or revengeful disposition but a wrongful act injurious to another The
Chinese equivalent eyi (惡意) also means spiteful mind but should be construed with
reference to its common law meaning105 We will further analyze in this section the
translation of malice in the context of translating the case law into Chinese to show the
significance of building a metalanguage and developing the semantic referential system of
the common law in Chinese
Example 3 Remainder
102 For example in section 30 of Chapter 401 ldquodischarge from bankruptcyrdquo is translated as ldquo解除債
務rdquo 103 For example in section 18 of Chapter 23 ldquodate of dischargerdquo is translated as ldquo解約日期rdquo 104 In Section 51 of Chapter 221 the Chinese version for the expression ldquostands mute of malicerdquo is ldquo出
於惡意而保持緘默rdquo 105 According to Jowittrsquos malice is ldquoa formed design of doing mischief to another technically called
militia praecogitata or malice prepense or aforethought hellip malice in common acceptance means
ill-will against a person but in its legal sense it means a wrongful act done intentionally without just
cause or excuserdquo (p 1136)
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 175
The official translation for the term ldquoremainderrdquo is shengyu quanyi (剩餘權益)
When used as an ordinary term remainder means something that remains or is left In its
legal usage remainder means the interest in land or property owned by a person who
enjoys no benefit from the property now but expects to come into possession in due
course of time and the term is thus used in rather technically in the law of property
Therefore a new compound term shengyu quanyi (剩餘權益) was created to express
this concept The term is obviously composed of two Chinese terms shengyu (剩餘
remaining) and quanyi (權益 interest)
(c) The third typemdashwhere the legal meaning of the term totally deviates from its ordinary
meaningmdashcan be treated in the same way as terms of the first type ie terms of art or
legal terms having a technical meaning The two major approaches are the creation of
a new term or the adoption of existing term with redefinition
Example 1 Abandonment
The other official translation for the term as used in the expression ldquonotice of
abandonmentrdquo is weifu tongzhi (委付通知)106 This legal meaning is totally different
from the core meaning It should be thus noted that ldquo the word lsquoabandonrsquo is one in
ordinary and common use and it in its natural sense well understood but there is not
a word in the English language used in a more highly artificial and technical sense
that the word lsquoabandonrsquo in reference to constructive total loss it is defined to be a
cession or transfer of the ship from the owner to the underwriter and of all his
property and interest in it with all the claims that may arise from its ownership and
all the profits that may arise from it including the fright then being earned (per Martin 106 We can find the term in Section 57 of Chapter 329 Marine Insurance Ordinance
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 176
B Rankin v Potter 42 LJCP 169 at p 200)rdquo (Stroudrsquos p 3) Therefore a new
Chinese term was created as the equivalent for this term in order to convey effectively
the common law legal concept
Example 2 Personal Representative
The official translation for the term ldquopersonal representativerdquo is yichan daili ren
(遺產代理人) The ordinary meaning of the term is a person who manages the affairs
of another In its legal usage it means ldquoexecutors and administrators whether acting
with regard to personal property or with regard to real propertyrdquo (Jowittrsquos p 1356)
This legal meaning deviates from the termrsquos ordinary meaning and a new Chinese
term was coined to express the concept instead of using its equivalent in Chinese as
ordinary term ie geren daibiao (個人代表)107
Example 3 Warranty
The two official translations of ldquowarrantyrdquo baozheng (保證) and baozheng tiaokuan
(保證條款) capture two different legal meanings The core meaning of the term is a
guarantee or assurance One of its legal meanings overlaps with the core meaning and is
thus translated as baozheng (保證)108 The other legal meaning is ldquoa subsidiary term in a
contract as distinct from a vital term which is called conditionrdquo (Jowittrsquos p 2979)109
107 Stroudrsquos interpretation of this term reads ldquothis phrase (except when otherwise controlled by a
context) is synonymous with legal representativerdquo (p 2014) 108 The heading Section 33 of Chapter 329 is ldquoNature of warrantyrdquo and the Chinese version reads ldquo保
證的性質rdquo 109 Section 2 of Chapter 26 gives the interpretation of the term ldquowarrantyrdquo
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 177
Thus in the law of contract warranty is different from condition since a breach of
condition justifies the termination of the contract while a breach of warranty does not110
This legal meaning deviates from the termrsquos core meaning and is thus officially translated
into baozheng tiaokuan (保證條款) which is a newly created compound term in Chinese
One might well think that baozheng tiaokuan (保證條款) has a close connection with
baozheng (保證) but as a matter of fact they express two different common law concepts
Another suggested translation is ciyao tianjian (次要條件) which is also a testimony to
the value of neologism and may convey the legal meaning of warranty against condition
more precisely111 In this case the creation of a new term would seem a better choice
Thus far we have illustrated the process of translating common law terminology
where adjustments of the Chinese legal vocabulary on the linguistic level and frequent
reference to the semantic referential system of the common law are both indispensable
It will be remembered that in section 61 of this chapter we have already provided a
summary of the metalinguistic tools that could be employed by the legal translator on
ldquowarranty (保證條款) means an agreement with reference to goods which are the subject of a contract
of sale but collateral to the main purpose of such contract the breach of which gives rise to a claim for
damages but not to a right to reject the goods and treat the contract as repudiated
(Amended 59 of 1989 s 20) 110 Lord Denning in Oscar Chess Ltd v Williams [1957] 1WLR 370 111 Zhao (1995) also discusses the translations of condition and warranty She remarks
In Chinese legal terminology we have zhuyao tiaokuan (主要條款 major terms) and ciyao
tiaokuan (次要條款 subordinate terms) But the Chinese contract law does not take the same
approach as Common Law to distinguish between terms in order to determine remedies hellip It
is submitted that the better choice will be the use of functional equivalents zhuyao tiaokuan
(主要條) and ciyao tiaokuan (次要條款) to express ldquoconditionrdquo and ldquowarrantyrdquo Both Chinese
terms can achieve the desired legal effects (pp 300-01)
Functional equivalence is not a good choice for translating the common law into Chinese since it
will result in confusion between the legal terms used in different legal systems
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 178
the conceptual level to effect cultural transfer Let us scrutinize these methods of
constructing a metalinguistic mechanism
(1) Appending translatorrsquos preface or footnote or any other commentaries or
explaining why and how the translation was done in related articles
The classic example here is the ldquoMemorialsrdquo in which Shen Jiaben expounded the
translated concepts of foreign laws already referred to in section 422 Especially
where the translation of Hong Kong Ordinances is concerned we find that legal
translators strive to spell out explanatory remarks identifying the translation objective
and approach and explain why and how the translation was done in related articles
The Bilingual Laws Information System (BLIS) is a valuable database of laws of
Hong Kong providing both English and Chinese versions of the current laws of Hong
Kong a glossary and other useful information which testifies to the impressive
translation project completed by the former Legal Department under the supervision
of the Bilingual Laws Advisory Committee (BLAC)112 The minutes of BLAC
meetings also serve as important metalanguage explaining how and why the
translations are made as shown by our discussions above Another method which is
particularly important is the translatorrsquos notes which he adds to the translated text to 112 Thus the Law Drafting Division of the Department of Justice as the statutory body of translating
the Common Law into Chinese has created as its flagship product the BLIS (Bilingual Laws
Information System) one of the largest ever legal databases and a valuable metalinguistic tool With its
many products including a CD-ROM English-Chinese Glossary of legal terms published in 1995 and a
Chinese-English Glossary of Legal Terms published in December 1999 the Law Drafting Division of
the Department of Justice has made very significant efforts to enhance the learning of common law
terminology and promote the Chinese semantic referential system of the common law It also writes
articles on bilingual legal issues for the well received magazine Hong Kong Lawyer
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 179
give some specifications or provide further information Necessary knowledge of the
context can be given more effectively through explanations in the text or in footnotes
But in translating the common law legislation this format may not prove practical If
we look at the current English Ordinances of Hong Kong we find that Chapter One
Interpretation and General Clauses Ordinance provides overall guidance on how to
interpret the Chinese equivalent for the English terminology with reference to the
common law context Every chapter also has a section headed ldquoInterpretationrdquo which
gives the proper construction of some English terms used in the ordinance
supplemented with their Chinese equivalents This is a significant step providing a
conceptual link between English terms and their Chinese equivalents and in fact
serves much the same function s a translatorrsquos note If we look at the ldquoDiscussion
Paper on the Laws in Chineserdquo prepared by the Attorney Generalrsquos Chambers of Hong
Kong we find there a statement concerning the use of metalanguage ldquothe
Interpretation and General Clauses Ordinance should be amended hellip to deal with the
problem of a discrepancy between the meaning of the English text of a law containing
an expression of the Common Law and the Chinese text using an expression which is
not one of the Common Lawrdquo Also the methodologies employed in the process of
establishing well-formed Chinese equivalents for common law terminology have been
clearly set out by the Law Drafting Division of the Department of Justice in a number
of articles in Hong Kong Lawyer the official journal of the Law Society of Hong
Kong113 113 An article provided by The Law Drafting Division of the Department of Justice examines the need
for the gradual development of standard Chinese terms to explain Common Law and statutory concepts
An extract reads
When selecting the Chinese term we must consider the lsquoadequacyrsquo and lsquoacceptabilityrsquo of the
term hellip Usually semantic mapping is used for legal translation There are two ways of semantic
mapping One is to employ an existing Chinese term to represent a Common Law concept The
other is to coin a new Chinese legal term by combining existing morphemes Bilingualism in the
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 180
(2) Translation of related legal works into Chinese
The following legal works have already been translated into Chinese (a) reports
of Chinese cases in the Hong Kong Law Reports and Digest and Hong Kong Cases (b)
important cases provided by the Judiciary and some law reports have been published
in both English and Chinese versions (c) Hong Kong Lawyer as the official
magazine of the Law Society of Hong Kong carries a section which provides the
Chinese translations of key legal phrases taken from judgments (d) several law
digests have been published including Chinese Digest of Hong Kong Contract
Law(1995) Chinese Digest of the Criminal Law of Hong Kong (1996)Chinese Digest
of the Criminal Procedure Law of Hong Kong (1996) and Chinese Digest of the
Common Law of Hong Kong114 In addition to the above works it is also desirable to
translate specialized Common Law dictionaries into Chinese such as A Dictionary of
Modern Legal Usage115 Strouds Judicial Dictionary of Words and Phrases and
compile books focusing on the legal concepts of Common Law such as Digest of Case
Law Principles
Common Law necessarily involves the use of Chinese A collection of Chinese Common Law
terms that are stable and clear will assist greatly in the development of bilingualism in the
Common Law For this purpose if there is standardisation of the translation of Common Law
concepts these concepts will be matched more readily with their Chinese equivalents This is
beneficial for the lsquorootingrsquo of the Common Law in the Chinese language and provides standard
Chinese references for Common Law concepts hellip Standardisation of the translations will
expedite the absorption of Common Law concepts by the Chinese language Standardisation of
translations for Common Law concepts is also beneficial for judicial interpretationhellip
Nevertheless a translation produced with due regard to all these factors will be much more
concerned with lsquoadequacyrsquo and may lack lsquoacceptabilityrsquo as it presently stands (in ldquoThe Common
Law and the Chinese Languagerdquo Hong Kong Lawyer February 1999) 114 This is a project conducted by Roebuck Derek and King-kui Sin 115 In its first edition A Dictionary of Modern Legal Usage became a classic in its field The first
comprehensive guide to legal style and usage it filled a gap in reference literature by giving practical
advice on how to write clear jargon-free legal prose
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 181
(3) Compiling an English-Chinese legal dictionary
Another efficient way to build the semantic referential system for the Chinese
equivalents of common law terms is to compile a dictionary with commentary We
have demonstrated that the basic requirement in translating terminology is to achieve
semantic equivalence However semantic equivalence alone is not enough since
meanings can often only be worked out when terms are considered in context and
when the cultural concept of terms is properly transferred Such contextual knowledge
can be supplied by amplifications in the translated text (footnotes) or separately in
appendices (glossaries) Adequate cross-referencing of entries thus seems an ideal
metalinguistic tool to establish a common law semantic reference system116 The
Hong Kong English-Chinese Legal Dictionary (2005) published by Butterworth is a
good recent example of its kind
To illustrate the two levels of cultural transfer and further justify the conceptual
transfer at the metalinguistic level further analysis of selected translations will be
furnished The foregoing discussion shows where new terms are created in Chinese
their meaning may seem transparent and can be easily identified Yet the reader still
needs to resort to metalanguage to understand the concepts of the newly-created terms
In translating semi-technical terms legal translators often employ lexical expansion
using an existing Chinese term to express the new common law concept This makes
it difficult for the reader to determine whether the term is common law Chinese or
116 Trsquosou amp Kwok (2003) also point out the immaturity of English-Chinese dictionaries in Hong Kong
There are many comprehensive English dictionaries of law (eg Garner 1999) but standard
references for legal Chinese in Hong Kong have not matured to the same level Most of them
exist in the form of a glossary with only very crude definitions if any (eg Department of
Justice 1998 Department of Justice 1999 Li amp Poon 2000) (p 612)
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 182
ordinary Chinese In such a case it is even more important to resort to metalanguage
as a mirror for cultural transfer at the conceptual level
The analysis of translated legal terms serves as the paradigm of cultural transfer
at the lexical level Discussions of translated legislative texts and judgments would
further illustrate the operation of cultural transfer In addition translation of the
judgments itself is of vital importance to construct the metalanguage since judgments
are not only important because they settle specific disputes and contain solutions to
legal problems but also because they have shaped much of the culture of the law ie
legal concepts and legal principles We shall take the example of translations of the
term ldquomalicerdquo in the legislation and case law as a simplified case to illustrate cultural
transfer on the textual level We will analyze how the legal concepts and legal
principles relating to ldquomalicerdquo are developed in the case law117
117 Poon (2005) points out that BLAC used to refer to the case law in defining the Common Law terms
She also uses the example of ldquomalicerdquo defined thus
In law an act is malicious if done intentionally without just cause or excuse (per Bayley J
Bromage v Prosser 4B amp C 255)
1 ldquoMaliciouslyrdquo means and implies an intention to carry out an act which is wrongful to the
detriment of another (Mogul Co v McGregor[1892] AC 25 (HL))
2 The word ldquomalicerdquo refers not to intention but to motive (R v Tolson (1889) 23 QBD 168)
3 Where any person wilfully carries out an act injurious to another without lawful excuse he
does it maliciously (per Lord Blackburn R v Pembliton (1874) LR 2 CCR 119)
4 Where a person has a malicious intent against another and in carrying it out injures a third
person he is guilty of malice against the person he has injured (per Coleridge v Latimer 17
QBD 359)
5 ldquoMaliciouslyrdquo in S 16 Offences Against the Person Act 1861 means ldquowilfully or intentionally
and without lawful excuserdquo (R v Mowatt [1968] 1 QB421)
6 For a person to be guilty of ldquomalicious woundingrdquo mere recklessness is not enough (W (A
Minor) v Dolbcy [1983] Crim LR681) (p 319)
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 183
Example 11 (legislation)
In an action for a libel contained in any newspaper it shall be competent to the defendant to set up
as a defence that the libel was inserted in the newspaper without actual malice and without gross
negligence hellip (Cap4 Sect 21)
The official translation is as follows
在因任何報刊刊載的永久形式誹謗而進行的訴訟中被告人有權提出在該報刊刊登的永久形
式誹謗並不含實際惡意亦無嚴重疏忽hellip(第 4 章 第 21 條)
We see that ldquomalicerdquo is translated as eyi (惡意) which is also an ordinary Chinese
term Evidently the legal translator has employed the technique of lexical expansion to
give it new meaning On the linguistic level the common law term ldquomalicerdquo has been
successfully encoded as eyi (惡意) in Chinese and we can appropriately say that eyi
(惡意) is the semantic equivalent of ldquomalicerdquo Now let us see how translations of the
excerpted case law transfer the legal culture at the metalinguistic level By translating
the excerpted judgments the concept of ldquoactual malicerdquo in the common law and
related legal principles especially in defamation cases can be transferred into
Chinese
Example 12 (judgment)
There are two sorts of malice malice in fact and malice in law the former denoting an act done
from ill-will towards an individual the latter a wrongful act intentionally done without just cause
or excuse118
118 Bayley J in Bromage v Prosser
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 184
Translation by the author is as follows
惡意分兩種事實惡意與法律上的惡意前者指對他人出自的惡意行為後者是蓄意的錯誤
作為且沒有確當的原因或辯解
Example 13 (judgment)
Express or actual malice is ill will or spite towards the plaintiff or any indirect or improper
motive in the defendants mind which is his sole or dominant motive for publishing the words
complained of
Translation by the author is as follows
顯明惡意或實際惡意是在被告的思想中對原告存有或非直接的不恰當的動機且此動機
為被告在發佈他所被控的言辭時獨有或主要動機
Example 14 (judgment)
Malice could also be established by inference if the court was satisfied that the defendant did not
believe what she said was true or she knew or believed that the defamatory statements were
false119
Translation by the author is as follows
惡意可被推定建立如法庭信納被告不相信她自己所說的是事實或她知道或相信誹謗的陳述
是假的
119 HO PING KWONG V CHAN CORDELIA [1989] 2 HKC 415
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 185
Example 21 (legislation)
Where a person kills another in the course or furtherance of some other offence the killing shall
not amount to murder unless done with the same malice aforethought (express or implied) as is
required for a killing to amount to murder when not done in the course or furtherance of another
offence (Cap339 Sect 2)
The official translation is as follows
(1) 凡殺人行為並非在犯其他罪行的過程中或為了進行其他罪行而作出而該殺人行為
必須具備某種(不論是明示或默示的)的預懷惡意(下稱ldquo前述預懷惡意rdquo)方足以構成謀
殺罪則任何人如在犯其他罪行的過程中或為了進行其他罪行而殺死他人其殺人
行為除非具備與前述預懷惡意相同的預懷惡意否則不構成謀殺罪(第 339 章 第 2
條)
When faced with such a legislative text the legal translator must delve into the
cultural concepts of the specified legislation in order to produce a Chinese legal text
with the same meaning The ordinance belongs to an important branch of the
Common Lawmdashthe criminal law and deals with one offence in criminal law murder
The doctrine presumes malice aforethought on the basis of the commission of a felony
inherently dangerous to human life Now let us look at how the concept of ldquomalice
aforethoughtrdquo is defined in the case law120
120 Roebuck (1995) also explained malice aforethought (express or implied) in his Hong Kong
Criminal Law which provided the Chinese translation of the judicial interpretations lt杀人罪條例gt第 2 條第(1) 款提到ldquo明示的或默示的rdquo 惡意預謀明示的惡意指殺人的故
意默示的惡意指重傷的故意[見常威強 Tsang Wai-keung(1973)]HKLR 159 一案 (p 84)
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 186
Example 22 (judgment)
There is no doubt that murder is killing with malice aforethought and there is no doubt that
neither the word malice nor the word aforethought is to be construed in any ordinary sense
The whole phrase is to be interpreted according to principles that have been laid down in
decided cases Next it is clear that there is malice aforethought if a person kills with intent to kill
or do grievous bodily harm see R v Vickers121
Translation by the author is as follows
毫無疑問謀殺就是ldquo有預懷惡意的rdquo 殺人且毫無疑問的是ldquo惡意rdquo 一詞與ldquo預懷rdquo 一詞都不
可用它們平常的意思來理解這個詞組應按照先例中定下的法律原則來解釋其次很明
顯凡有人意圖殺人或嚴重傷人必有預懷惡意存在
Example 23 (judgment)
We are not here concerned with the meaning of malice in the Common Law definition of murder
still less with its meaning in relation to the law of libel and slander where indirect motive is of
importance There is no case other than R v Syme and R v Johnson (with which we will presently
deal) in which it has ever been suggested that indirect motive has anything to do with the
meaning of the word maliciously in Acts creating criminal offences122
Translation by the author is as follows
在此我們並不是要討論在惡意一詞在普通法謀殺罪定義中的意思更不是要討論它在誹謗
法中的意思在這兩者中非直接的動機佔有重要位置 沒有其他案例能象在 R v Syme
121 All England Law Reports1973Volume 3 R v Hyam - [1973] 3 All ER 842 122 All England Law Reports1969Volume 3 R v Solanke - [1969] 3 All ER 1383
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 187
和 R v Johnson 案件中(這是我們目前審理的案件)非直接的動機與ldquo惡意地rdquo 一詞在法例
中構成刑事罪行的意思更為相關
We can observe that the common law standard of malice generally required the
tort law to support an award of punitive damages In the law of slander we can see
that malice is one of the elements of liability and the plaintiff may meet a case of
privilege thus made out on the part of the defendant by proving actual malice that is
actual intent to cause the damage complained of In dealing with the criminal law an
act malicious in common speech means that harm to another person was intended to
come of it and that such harm was desired for its own sake as an end in itself
Therefore as discussed in section 61 legal translation as cultural transfer takes place
at two levelsmdashlinguistic level and conceptual level When translating the term
ldquomalicerdquo in the legislation the legal translator produces the Chinese equivalent for the
term on the linguistic level by adjusting the translating language Metalinguistic
devices should be built in order to transfer all the cultural elements behind this legal
term into Chinese One effective method is to translate the judgments related to the
legal concept under review The above translations of excerpted legislation and
judgments serve as a simple example of the type of work needed to establish the
metalanguage of the common law in Chinese
Using study of cultural transfer in legal translation in this thesis as its basis a
more comprehensive examination of the translation of legislation and judgments
relating to legal terminology could be an interesting field of further research This
might include the translation of legislation and judgments relating to legal
terminologies studied previously such as abandonment fee simple chose in action
chattel confession and warranty to name a few To conclude transfer of the culture
of the common law into Chinese requires adjustments on both the linguistic and
CULTURAL TRANSFER IN TRANSLATING THE COMMON LAW INTO CHINESE 188
conceptual level in particular the building of metalinguistic tools in Chinese until the
whole semantic reference system of common law Chinese is eventually laid bare
Chapter 7
Concluding Remarks
We began this study by reflecting on the notion of cultural transfer in translation theory
As noted in the introductory chapter translation theorists expended much effort in developing
theories centering on linguistic transcoding especially on linguistic equivalence The
characterization of translation as cultural transfer is an outcome of the cultural turn in
translation theory
We have particularly in section 21 noted that the notion of cultural transfer when
employed to characterize translation as a socio-cultural activity as opposed to a mere act of
linguistic transcoding can be understood in two diametrically opposite senses On the one
hand it is taken to mean the mapping of cultural elements of the source text onto their
equivalents in the culture of the target text On the other hand it is taken to mean the
importation of the source culture into the target culture which necessitates linguistic and
conceptual adjustments of the translating language Understood this way translation as
cultural transfer requires that a choice be made between the two basic translation strategies
ie domestication and foreignization The cultural concepts of the source language may be
either domesticated in order to facilitate cross-cultural communication or foreignized by
making both linguistic and conceptual adjustments of the target language As has been
pointed out in section 22 translation as cultural transfer is no longer a matter of finding
linguistic equivalents between languages but rather an operation of creating conceptual
semantic equivalence on the metalinguistic level Thus understood foreignization is simply a
metalinguistic operation whereby cultural transfer is effected
CONCLUDING REMARKS 190
The clarified notion of cultural transfer is vital for understanding legal translation as
cultural transfer both in respect of its theoretical foundations and practical applications In
section 22 we noted that when translating a legal text for the purpose of producing another
authentic version of the same text the legal translator is bound to foreignize the language of
the latter version to a certain extent in order to establish semantic equivalence between the
two versions Translation of the common law into Chinese thus serves as a paradigm of
cultural transfer in legal translation
That being the case our understanding of legal culture must be carefully reconditioned
by its practical reference to the common law and account for the evidence of its transference
in the legal text itself As analyzed in section 31 the very notion of legal culture has been
understood in previous studies either as peoplersquos conceptions of law or the combination of
peoplersquos conceptions and practices of law However it is not possible for the legal translator
to deal with legal culture in the sense of the practices and behaviors by legal professionals as
the final encounter of the legal translator is the legal text which embodies peoples conception
of law The aspect of legal culture which informs and underpins legal translation is the
conceptual thinking shared by legal professionals We argued in section 33 that the common
law is a deep-rooted historically molded conceptual thinking shared by legal professionals
Its legal culture is mainly reflected in two aspects legal concepts and legal principles We
also investigated in section 34 the legal culture of traditional and modern Chinese law
showing that borrowing from other legal systems and transfer of foreign laws into China has
shaped the modern Chinese law
In our analysis in section 41 of the transfer of legal culture we classified legal
transplant into two kinds legal imposition at the socio-political level and legal translation at
the socio-linguistic level On the one hand a fairly wholesale transplantation of legal system
CONCLUDING REMARKS 191
is possible for socio-political reasons even without any translation of the imported law into
the indigenous language On the other hand it is often through legal translation that foreign
laws are introduced to the indigenous people at the socio-linguistic level Compared with
legal imposition legal translation is a more fruitful way of legal transplant and cultural
transfer as is evident from Chinarsquos long history of legal translation It has also been shown in
our analysis of the memorials prepared by legal translators that the successful transfer of a
legal culture always requires the adjustments of the translating language by means of
metalinguistic devices
As this study is both a theoretical inquiry and a case study chapter 5 examined the
specific features of the common law language in which the legal concepts and legal principles
are embodied We argued that differences between the Chinese language and common law
English should not be emphasized at the expense of the translatability of the common law
legislation into Chinese Legislative translation is no doubt a limiting case of translation For
it is mandated by law that its different language texts must convey the same legal meaning so
as to regulate the same social behaviour among the people it governs If this condition cannot
be satisfied if it can be shown that equivalence in meaning is in principle unattainable then
not only will legislative translation become a futile endeavour but the foundation of all
multilingual legal systems will also collapse
To show how semantic equivalence is possible in legislative translation we proposed in
section 61 a theoretical framework for effecting cultural transfer at two different levels One
is linguistic transfer ie transfer at the linguistic level which involves the adjustments of the
Chinese language and the other is conceptual transfer at the metalinguistic level We then
carried out a detailed analysis of selected translations The focus is placed on the analysis of
the translation of common law terminology We made clear in section 62 how the two levels
CONCLUDING REMARKS 192
of transfer take place Not only should the legal translator produce the Chinese equivalents on
the linguistic level by adjusting the Chinese language but with the use of metalanguage
heshe transfers the cultural concepts into Chinese and establishes the semantic reference
system for common law Chinese ie a special domain of the Chinese language developed
for incorporating the common law
Basing our views on the works of legal and translation scholars in Hong Kong we have
shown in this study that equivalence in meaning indeed does not exist between languages as
they stand This has led many to dismiss the whole notion as illusory However equivalence
in meaning is by nature not a descriptive term Rather it is a stipulative term That is to say
two terms are equivalent in meaning if and only if they are stipulated to be so Equivalence in
meaning is established by the metalinguistic device of definition It is created not found In
the case of legislative translation this metalinguistic device operates on the legislative level
ie as part of the legislative process In other words in legislative translation equivalence in
meaning between the different language texts of the law is established by legislation not
through translation on the object-language level
Translation is of course not merely a matter of language Many things are involved in
the process Nevertheless however complicated the process is translation is invariably a
process beginning with a text and ending with another textmdashit is always from language to
language always a cross-linguistic event Whether we call this transcoding or recoding
translation remains essentially an operation with words Even when one follows cultural
theorists such as Vermeer and Snell-Hornby and re-labels translation a cross-cultural event
what we see in the end-product ie the target text remains a matter of words The
dichotomy between translation as transcoding and translation as cultural transfer is as has
CONCLUDING REMARKS 193
been shown in this study totally misguided There can be no cultural transfer without
transcoding as culture is for the most part embodied in language
As with translating Buddhist scriptures into Chinese translating the common law into
Chinese is a paradigm case of cultural transfer But again legal culture is illusory unless and
until it is embodied in language We have shown that the culture of the common law covers
the whole conceptual framework and socio-cultural background whereby the various
components of the common law are understood Part of that culture manifests itself in the
mere form of words and has to be preserved by following the same form of words in the
translation In such cases translating words is at the same time translating culture The
dichotomy between word and sense on the one hand and between word and culture simply
breaks down here But a large part of the culture of the common law can only be found
beyond the words of the law That part like equivalence in meaning cannot be handled by
translation on the same object-language level It must be handled either at the metalinguistic
level or in a separate object-level translation Once we have a clear view of how language
works and how it can be used to do what we want it to do many of the problems in
translation studies can be clarified and resolved
If this study can help clarify some of the fundamental problems concerning the notion of
translation as cultural transfer it will have achieved its intended skopos
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