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Definition of translation Translation of legal documents

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All these linguistic features of English legal language are well manifest in an example from the General Agreement of Tariffs and Trade below:
GATT Article II 1b 1. b The products described in Part I of the Schedule relating to any contracting
party, which are the products of territories of other contracting parties, shall, on their importation into the territory to which the Schedule relates, and subject to
the terms, conditions or qualifications set forth in that Schedule, be exempt from ordinary customs duties in excess of those set forth and provided for therein. Such
products shall also be exempt from all other duties or charges of any kind imposed on or in connection with importation in excess of those imposed on the date of this
Agreement or those directly and mandatorily required to be imposed thereafter by legislation in force in the importing territory on that date.
The core of this provision is only “The products described in Part I of the Schedule shall be exempt from ordinary customs duties. Such products shall also be
exempt from all other duties in excess of those imposed on the date of this Agreement.”

1.2. TRANSLATION THEORY


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

1.2.1. Definition of translation


For most ordinary people, ‘to translate’ simply means to put something originally in one language into another language so that the readerlistener of the
second language understands what the writerspeaker of the first language says. But for theorists, things are seldom that simple.
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- In Approaches to Translation Newmark defines translation as “a craft consisting in the attempt to replace a written message andor statement in one language by the
same message andor statement in another language”. 1981 Later, in A Textbook of Translation he says translation is “rendering the
meaning of a text into another language in the same way that the author intended the text”. 1988: 5
- Translation means the “replacement of a text in one language SL by an equivalent in another language TL”. Cartford, 1965
- Jokobson in his paper in 1959 offered a much more detailed definition of translation when he distinguished between three kinds:
+ Intralingual translation or rewording is an interpretation of verbal signs by means of other signs of the same language.
+ Interlingual translation or translation proper is an interpretation of verbal signs by means of some other language.
+ Intersemiotic translation or transmutation is an interpretation of verbal signs by means of signs of nonverbal sign systems.
- House 1977: 29 after discussing the three aspects of meaning, proposed a tentative definition of translation: “translation is the replacement of a text in the source
language by a semantically and pragmatically equivalent text in the target language”. And these are only written texts.
No matter how diverse these definitions can be, they all share the basic idea that translation does not deal with language as a system, but with language in use and
that there should be some kind of equivalence between the two languages.

1.2.2. Translation methods and strategies


Generally speaking, the process of translation involves three steps: -
analyzing the ST to identify: the intention of the text, the intention of the translator, text styles, the readership, stylistic scales, attitude, setting, the
quality of the writing, connotations and denotations, and the cultural aspect of the text;
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- translating into TL: before starting the actual work of translating, the
translator should i choose an appropriate approach or method, which shall be discussed later, based on the analysis of the ST and his purpose of doing
the translation, and ii work on possible translation strategies; -
revising andor reconstructing the translation.

1.2.2.1. Translation methods


There are various translation methods or approaches, which can be seen in Newmark’s diagram as follows:
SL emphasis TL emphasis
Word-for-word translation Adaptation
Literal translation Free translation
Faithful translation Idiomatic translation Semantic translation Communicative translation
Newmark, 1988: 45 Newmark briefly explained these methods as:
- Word-for-word translation: The SL word-order is preserved and words
translated singly by their most common meaning, out of context.
- Literal translation: The SL grammatical constructions are converted to
their nearest TL equivalents but the lexical words are translated singly, out of context.
- Faithful translation: attempts to reproduce the precise contextual meaning
of the original within the constraints of the TL grammatical structures.
- Semantic translation: takes more account of the aesthetic value of the SL
text than does faithful translation, compromising on ‘meaning’ where appropriate so that assonance, word-lay or repetition jars in the finished version. Therefore, it is
more flexible, allows for the translator’s intuitive empathy with the original.
- Adaptation: In adaptation, the themes, characters, plots are preserved, and
the SL culture is converted to the TL culture and the text is rewritten.
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- Free translation: is usually a paraphrase much longer than the original, a
so-called ‘intralingual translation’, often prolix and pretentious, and not translation at all.
- Idiomatic translation: reproduces the ‘message’ of the original but tends to
distort nuances of meaning by preferring colloquialisms and idioms where these do not exist in the original.
- Communicative translation: attempts to render the exact contextual
meaning of the original in such a way that both content and language are readily acceptable and comprehensible to the readership.
Newmark, 1988: 45-7 Of the above eight methods, only semantic and communicative translation are
considered by Newmark to fulfill the two main aims of translation, namely accuracy and economy. In other works on translation theory, these two methods are also most
frequently discussed. In concluding the chapter on translation methods in A Textbook of Translation,
Newmark goes on to clarify five more translation methods: 1 Service translation: is translation from one’s language of habitual use into
another language. 2 Plain prose translation: this is translation of poems and poetic drama.
Usually stanzas become paragraphs, prose punctuation is introduced, original metaphors and SL culture retained, no sound-effects are
reproduced. 3 Information translation: This conveys all the information in a non-literary
text, sometimes rearranged in a more logical form, sometimes partially summarized, and not in the form of a paraphrase.
4 Cognitive translation: This reproduces the information in a SL text converting the SL grammar to its normal TL transpositions, normally
reducing any figurative to literal language.
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5 Academic translation: This reduces an original SL text to an ‘elegant’ idiomatic educated TL version which follows a literary register. It irons out
the expressiveness of a writer with modish colloquialisms. Newmark, 1988: 52-3
The chosen translation method will help the selection and use of appropriate translation strategies, which are going to be discussed in the next part.

1.2.2.2. Translation strategies


After a translation method has been selected, the actual work of translating can now take place. To achieve the goal of transferring the text from the SL into the TL,
the translator will have to combine several of the following translation strategies, elsewhere referred to as translation procedures.
1. Transcription ‘loan words’, adoption, transfer 2. One-to-one translation
3. Through-translation ‘loan-translation’ or calque: is the literal translation of common collocations, names of organizations, the components of compounds.
4. Lexical synonymy: this is translation by a close TL equivalent, used for a SL word where there is no clear one-to-one equivalent.
5. Componential analysis: this is preferred to synonymy particularly if the lexical unit is a key-word or is important in the context.
6. Transposition Vinay and Darbelnet or shift Catford: is the replacement of one grammatical unit by another without changing the sense. It is probably the most
common structural change undertaken by translators. 7. Modulation: is “a variation through a change of viewpoint, of perspective and
very often of category of thought” Vinay and Darbelnet. This is considered the touchstone of a good translator.
8. Compensation: when loss of meaning or sound effect or metaphor in one part of sentence is compensated in another part.
9. Cultural equivalence: is an approximate translation where a SL cultural word is translated by a TL cultural word.
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10. Translation label: that is an approximate equivalent, sometimes proposed as a collocation in inverted commas, which may later be accepted.
11. Definition descriptive equivalent: usually recast as a descriptive noun-phrase or adjectival clause.
12. Paraphrase: an amplification or free rendering of the meaning of a sentence: the translator’s last resort.
13. Expansion: grammatical expansion 14. Contraction: grammatical reduction
15. Recasting sentences: splitting of one sentence in the SL into two or more sentences in the TL or grouping several sentences in the SL into one sentence in
the TL. 16. Rearrangement, improvements jargon, mistakes, misprints, idiolect, clumsy
writing, etc.. Only justified if a the SL text is concerned mainly with facts, or b the writing is defective.
17. Translation couplet: literal translation or translation label plus transcription The choice of strategies for the translation of a text depends on the purpose of
the translation and the componential analysis of the ST.

1.2.3. Translation equivalence and assessment


Of these two terms or concepts, translation equivalence is a central one in translation theory. Equivalence in translation can be broadly defined as the
relationship between texts in two different languages, not between the languages themselves. Equivalence is the main criterion in assessing the quality of a translation.
A translation is generally said to be ‘good’ if it can maintain a certain degree of equivalence to the ST.
In this part, some different views on equivalence will be discussed but there shall be no separate discussion of translation assessment; instead, it is implied that
assessment of a translation is based on the respective kind of equivalence discussed.
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1.2.3.1. Jakobson 1959: linguistic meaning and equivalence


Jakobson sees translation as three separate kinds: intralingual, interlingual and intersemiotic, with the second kind corresponding to others’ definition of translation.
In terms of linguistic meaning, Jakobson takes up Saussure’s view that the linguistic sign, which composes of the signifier the spoken and the written signal
and the signified the concept signified, is arbitrary or unmotivated. In terms of equivalence in meaning, he holds that ‘there is ordinarily no full
equivalence between code-units’ 19592000: 114. Therefore, it should not be expected that the code-units in ST and TT are similar, even when the message is
‘equivalent’ in ST and TT.

1.2.3.2. Nida 1964: formal equivalence and dynamic equivalence


- Formal equivalence: the message in the TL should be conveyed by
elements that are as closely matching as possible with those in the SL. -
Dynamic equivalence: the message should produce an effect on TL receptors equivalent to that on ST receptors.
A translation, in Nida’s opinion, is successful if it can achieve equivalent response in the two languages, which means dynamic equivalence is the goal of translation. To be
‘good’, a translation must meet these four basic requirements: -
making sense -
conveying the spirit and manner of the original -
having a natural and easy form of expression -
producing a similar response

1.2.3.3. Newmark 1981 1988: semantic translation and communicative translation


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

1.2.3.4. Koller 1979: five types of equivalence


Koller describes five types of equivalence to answer the question as to what exactly has to be equivalent. These are presented in Munday 2001: 47 as follow:
- Denotative equivalence: is related to equivalence of the extralinguistic
content of a text. -
Connotative equivalence: is related to the lexical choices, especially between near-synonyms.
- Text-normative equivalence: is related to text types, with different kinds of
texts behaving in different ways. -
Pragmatic equivalence or communicative equivalence: is oriented towards the receiver of the text or message. This is Nida’s dynamic
equivalence. -
Formal equivalence: is related to the form and aesthetics of the text; it includes word plays and the individual stylistic features of the ST. This is
different from Nida’s formal equivalence. Koller also proposes a checklist whereby a text can be analyzed for translation:
- language function
- content characteristics
- language-stylistic characteristics
- formal-aesthetic characteristics
- pragmatic characteristics

1.2.4. Translation of legal documents


Legal texts in general can be grouped into the following four categories: •
Nationally-enacted legal documents: the legal effect of these documents are limited to the territory of their countries of origin. To be effective, they have to
be involved in the country’s legal system. Unless validated, any translation of
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the document purely serves to inform the addressee of the original one, and TT functions as a parallel text, a commentary to be used to access the original.
• Documents drawn up in bi-lingual andor bi-juridical countries, for example
Canada: both texts in the two languages are of equal legal validity. •
“Hybrid texts”: these are texts “produced in a supranational multicultural discourse community where there is no linguistically neutral ground”
Trosborg, 1997: 145-146 in Garzone. Every version of the documents in any of the official languages of the issuing international agency is supposed to
have the same meaning as other versions, and after ratification, is of legal validity in its territory. But when translated into another language rather than
the official ones, the translation is purely informative. These are treaties, protocols, conventions, etc.
• International documents regulating the relationships between private subjects
in different nations. These are not always authoritative and are interpreted according to the law governing them.
This paper focuses on the first category of legal texts, i.e. nationally-enacted legal documents, which Sarcevic 1997:10 in Garzone concludes as being
connotative in nature. Any legal document is embedded in a culture that determines the structure of
the legal system of that document as well as the legal language of that system. The language of the law of any legal system is typically formulaic, archaic, and at times
obscure. Legal discourse highly reflects its culture. And legal documents have a special pragmatic status.
Legal writing follows very strict stylistic conventions that may not correspond to conventions in a target culture. There may be no direct structure equivalence
between the SL and the TL. Certain concepts may exist in the ST legal system but not in the TT system.
Most legal documents attempt to perform legal actions and to establish clearly defined rights and duties for certain groups of individuals involved in different social
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relations. This can only be done through the validity conditions set forth by the cultures of the texts.
The reader of the translations of these authoritative legal documents is often someone who is familiar with another legal system and its language. And these
translations are only parallel texts without legal validity. This distinct nature of legal documents poses two major issues concerning the
translation work. The first question is which style and format should the TT follow if there are profound linguistic differences between the SL and the TL. Some
professionals try to preserve the original style and format, even if this would hinder the TT’s clarity. Others stick to the TL style and format. But this in certain cases
would bring about the drawback of affecting the reader’s impression on the ‘technicality’ of the ST. This is true of Vietnamese legal documents. If following the
style and format of English legal language, the English version of a Vietnamese statute will appear to be more precise and more technical to a reader from the
Common Law system. And because statutes are translated into other languages, the most popular being English, for reference only, the former approach should be
favored. The second issue is related to the actual work of translating. The essence of
translation lies in the preservation of the legal actions and the clearly defined rights and duties set forth in the ST. This can only be achieved when linguistic gaps can be
overcome. Terminology alone raises difficulties for a translator. One concept and its term may exist in the SL only; there is no equivalent in the TL. Similarly, a term in
the SL and the one in the TL often accorded to it are not identical in terms of conceptual meaning. For example, in the Vietnamese legal system, there exists the
crime of “xâm phạm tài sản xã hội chủ nghĩa” while in the British or American system there is no such offence. Any reader who is familiar with the British system
will not understand the translation term the same way a Vietnamese does. The terms hội thẩm nhân dân in Vietnamese and juror in English are again not identical. They
are both present in a trial but hội thẩm nhân dân has more power than a juror.
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According to the dictionary of law of the Hanoi University of Law, hội thẩm nhân dân is appointed to hear a case within the court’s jurisdiction and “ngang quyền với
thẩm phán, độc lập và chỉ tuân theo pháp luật” while juror is a member of a jury which is defined in the Dictionary of Law Collin, 1993: 132 as “group of twelve
citizens who are sworn to decide whether someone is guilty or not guilty on the basis of the evidence they hear in court”. So on the word level, different methods and
strategies can be made use of regarding the rendering of concepts and terms. And it depends on the purpose of the TT as well as on the translator’s choice as to convey
the underlying idea or merely the words. Besides lexical items, structural differences and means of creating textual
coherence and cohesion are another source of obstacles. Linguistic structures that are often found in the SL may have no direct equivalent structures in the TL. The
translator therefore has to find TL structures with the same functions as those in the SL. Textual means in the two languages do not always correspond to each other.
It is clear that legal translation differs from other kinds of translations in a number of ways due to the special characteristics of this kind of documents. Certain
translation procedures and assessment should be adopted for legal translation. In the following chapter, House’s model for translation quality assessment will
be applied in assessing the English translation of the Vietnamese Law on Investment of 2005.
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CHAPTER 2. APPLICATION OF HOUSE’S MODEL FOR
TRANSLATION QUALITY ASSESSMENT

2.1. Presentation of the model


Julian House is a German linguist. She first proposed her model for translation quality assessment in 1977 in A Model for Translation Quality Assessment. The
original model attracted many criticisms which are said to have been tackled in her revised model in 1997 – Translation Quality Assessment: A Model Revisited.

2.1.1. An overview of the model


Not until the 1970s did the translation science begin to deal with translation criticism, which in House’s words is translation quality assessment. House was
among the theorists who tried to provide a scientifically based framework for translation quality assessment. For her, translation is “the replacement of a text in the
source language by a semantically and pragmatically equivalent text in the target language” 1997: 31. To be equivalent, the TT has to preserve the meaning of the
ST. There are three aspects of this meaning: a semantic aspect, a pragmatic aspect, and a textual aspect. House considers equivalence to be the fundamental criterion of
translation quality and argues that it is functional, pragmatic equivalence that should be achieved for ‘meaning’ to be preserved across two different languages. By
pointing out that ‘any two linguistic items in two different languages are multiply ambiguous’ and that ‘languages cut up reality in different ways’, House stresses that
functional, pragmatic equivalence “is the type of equivalence which is most appropriate for describing relations between original and translation”. But in the
model, poetic-aesthetic texts are excluded. As written in House’s report on Meta 2001: 247, the assessment model is
“based on Hallidayan systemic-functional theory, but also draws eclectically on
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