Legal Translation and Bilingual Law Drafting in Hong Kong

Challenges and Interactions in Chinese Regions

Clara Ho-yan Chan

• Publisher: Routledge
• Year: 2020
• Print ISBN: 9781138335905
• eBook ISBN: 9780429812156
• Edition: 1
• Topic: Languages & Linguistics
• Subtopic: Languages
• Index: Languages & Linguistics

Legal Translation and Bilingual Law Drafting in Hong Kong presents a systematic account from a cross-disciplinary perspective of the activities of legal translation and bilingual law drafting in the bilingual international city of Hong Kong and its interaction with Mainland China and Taiwan in the use of legal terminology.

The study mainly examines the challenges posed to English-Chinese translation in the past three decades by elaborate drafting and terminological equivalence, and offers educational and research solutions. Its primary goals are to create legal Chinese that naturally accommodates common law concepts and statutes from the English legal system and to reconcile Chinese legal terms from the different legal systems adopted by Hong Kong, Mainland China and Taiwan. The new directions in legal translation and bilingual law drafting in Hong Kong will have implications for other Chinese regions and for the world.

The book is intended for scholars, researchers, teachers and students of legal translation and legal linguistics, legal translators, lawyers and legal practitioners who are engaged in translation, as well as all persons who are interested in legal language and legal translation.

1 Introduction

About this book

1.1 Background and purpose

1.1.1 Legal translation in Modern China

Legal translation has played and continues to play a significant role in the modernisation of China. The Chinese legal system has innovated and reformed itself through continued emulation of foreign laws. In other words, the modernisation of the Chinese legal system is closely linked to legal translation. It is believed that China’s first contact with and introduction of Western laws was through the imperial commissioner Lin Zexu (1785–1850) during the Qing Dynasty (1644–1911). Before the First Sino-British War (1839–1842) began, Lin organised the translation of E. De Vattel (1985–1850)’s The Law of Nations into Chinese, that is, Geguo Lüli (《各國律例》), which was later published in Haiguo Tuzhi (《海國圖志》). However, the translated book was not widely disseminated among the public. After its defeat in the Second Sino-British War (1858–1860), the Qing Empire launched the Self-strengthening Movement (1861–1895) to imitate Western science and technology. Chinese personnel were sent abroad for further studies, and Western missionaries came to China engaging in newspaper, education and translation work. In 1864, the missionary W. A. P. Martin (1827–1916) produced the translation Wanguo Gongfa (《萬國公法》), based on Elements of International Laws: With a Sketch of the History of the Science by Henry Wheaton (1785–1848). This book was the first translated work on public law. During this reform period, Tianyan Lun《天演論》was translated from Montesquieu’s De l’esprit des lois (The Spirit of Laws) by Yan Fu, a prominent translator and translation thinker who has had great influence on the later development of Chinese translation studies (Cao 2004: 161–162; Qu 2013: 23–27; Teng and Fairbank 1982: 142).

After its defeat in the First Sino-Japanese War (1894–1895), the Qing Empire founded the law-drafting institution Xiuding Falü Guan (修訂法律館) (Law Revision Agency) in 1904. Shen Jiaben (1840–1913), as the minister of the Law Reform Bureau, initiated the modernisation of the Qing Dynasty’s Constitution and other laws through the large-scale borrowing of foreign laws (He 2011: 1904). The transplantation and codification processes were facilitated by the medium of Japanese language and law developed in Japan during the Meiji Period (1868–1914). During the Republican Era, legal drafting relied heavily on the Chinese translation of European continental law, with reference to the Anglo-American tradition. The Six Laws (Liufa Quanshu《六法全書》), that is, the constitution, civil law, criminal law, civil procedure, criminal procedure and administrative law, were promulgated at that stage and have been retained in Taiwan (Chen 2011: 29). The Mainland law professor Qu Wensheng (2013: 32) summarises the above legal history of China as follows:

Legal translation started from the translation of ‘The Law of Nations’—from books on public law to books on different areas of law, from missionary translation to translation by Chinese on their own, from translation by common people to officially organised translation, from translation from Anglo-Saxon laws to translation from Japanese laws—it marks the beginning and end of the modernisation of Chinese law. Legal translation has two values. First, it promotes the modernisation of the legal system, remodeling Chinese law, and second, it furthers the development of Chinese language and translation studies.

(English translation by the author)

In 1949, the old laws on the Mainland were abolished, and the laws of the People’s Republic of China (PRC), which were borrowed from the Soviet Union, were promulgated. From 1957, the ‘Anti-Rightist Campaign’ and ‘Cultural Revolution’ were responsible for a hiatus in legal enactment and implementation, which lasted until 1978 (Chen 2011: 36–41). However, in the last two decades of the twentieth century, much English legislation and numerous academic writings were translated into Chinese, and much new terminology from English jurisdictions was introduced into the PRC legal system (Zhang, Zhao and Yu 2005: 15). During this period the law-making authorities passed more than 450 laws and regulations, of which 350 were economic laws and 100 relevant to foreign investment and technology importation. For example, the tax system was heavily influenced by its US counterpart (Wang and Mo 1999: 3). As time went by, the Westernisation of law has played an important role in modernising China.

Entering the twenty-first century, the role of legal translation is becoming even more important with the intensifying trend towards globalisation and the ongoing trend towards Westernisation of the Chinese legal system. This book aims to discuss the general challenges facing the translation of Western and international laws into Chinese mainly in Hong Kong, a British colony for more than 150 years, and its neighbouring regions, Mainland China and Taiwan, in the context of legal transplantation and growing trade and economic ties with the international world mainly over the past couple of decades.

1.1.2 Legal translation in Hong Kong

The case of Hong Kong is rather special, because the change of sovereignty, when it returned to China as the Hong Kong Special Administrative Region (SAR) of the PRC in 1997, has prompted three decades (starting from the 1980s) of wholesale translation of English common law-based legislation into Chinese. A translation professor in Hong Kong (Sin 2018: 317–318) who participated in the project states:

The meaning of the work can be studied in two aspects…. First, it is a milestone in several large-scale translation activities since the translation of Buddhist scripture in the second year of the reign of Emperor Huan in the Eastern Han Dynasty (A.D. 148), and also a systematic attempt by China to absorb Western law (common law) for the building of a regional legal system (the Hong Kong SAR). Second … we should study what we can learn from others’ translation experience and research, and what is worth others learning from us.

(English translation by the author)

Early on, with the Tianjing Treaty of 1856, English was given ‘superior status’ over Chinese in the legal domain (Lord and T’sou 1985: 15). For most of the 150 years of British rule, English was the sole official language of Hong Kong. With very high social status, the English language has been used widely in government, business, the workplace in general, and even as the main medium of instruction in schools. To meet the needs of the predominantly Cantonese-speaking population, who mostly use Chinese in daily life, it has been the practice of the Hong Kong Government and businesses to translate English documents into Chinese, so that more of the population can understand them. Since the 1980s, the Hong Kong Government has aimed at developing a bilingual system, which is defined by Chen (1991: 15) in two senses: ‘First, bilingual texts for legislation should be made available. Secondly, parties in court proceedings should have the right to choose which of the two official languages they want to use’. Bob Allcock, the former Solicitor-General, explains: ‘Legislation was also passed enabling all courts to operate in either English or Chinese, at the choice of the court itself. Even where English is used, translation to and from Chinese is of course available where a party or witness needs it’ (Government Information Services Department, 9 November 2004). Poon (2018: 449) notes that a judge can choose the language to be used in the court proceeding ‘based on the nature of a case and the parties involved’. The judgment language is also based on the language used in the court proceeding.

Of the ‘two types of translated domestic legislation’ described by Cao (2007: 101, 128), Hong Kong, as a new bilingual jurisdiction, falls into the first type with Canada and Switzerland, which consists of ‘bilingual and multilingual jurisdictions where two or more languages are the official legal languages’. Mainland China and Taiwan fall into the second type, which includes ‘any monolingual country where its laws are translated into a foreign language or languages for information purposes’. The main challenges facing legal translation in Hong Kong lie in two aspects, language and law. The language challenge mainly refers to the so-called Europeanisation of Chinese terminology and syntax that often occurs during translation, especially given that legal translation usually adopts a faithful approach. The ultimate goal of this solution is to create legal Chinese that naturally accommodates common law concepts and principles. Such Europeanised structures also appear in the bilingual legislation drafted in accordance with the newly-adopted plain language guide. The legal challenge is mainly concerned with the differences between the common law system (adopted by Hong Kong) and the civil law system (adopted by Mainland China and Taiwan), which attach different meanings to Chinese legal terms that are mostly translated from foreign laws. This ‘systemic difference’ further highlights the ever-important equivalence issue that arises in translating legal terminology from one language to another, and it demonstrates the necessity for research to evaluate the equivalence of translated terms from the three Chinese communities.

Given the author’s common law training and substantial teaching experience in Hong Kong, Mainland China and Taiwan, this book focuses on the language problems of Hong Kong’s common law system with its emphasis on bilingual legislation, and from there, it discusses its legal differences between that system and the civil law systems of the Mainland and Taiwan. As Europeanised features are prevalent in the Chinese language which has been under English influence, the first part on language has strong implications for the texts of all English-Chinese legal translations in the Chinese world. The second part on law covers comparison of the legal terms currently in use by Hong Kong, Mainland China and Taiwan, which includes the detailed comparison of a term in Mainland and Taiwanese translations of an international agreement, and its counterpart version in Hong Kong. This interdisciplinary study also suggests approaches and ways to meet the challenges and solve problems encountered. It offers the insight of combining language and law as a way forward in twenty-first century legal translation. The suggestions made in the book all target exchange between different legal systems. While some of them are based on the situation in Hong Kong, they are also applicable to the Mainland, Taiwan and other jurisdictions, especially those that draft laws in more than one language.

Roebuck and Sin (1993: 209) note, ‘Minds trained in language and law can provide for Hong Kong the law the people want and need. A law which can be known can be better respected and the people’s respect for the law is the best safeguard of the rule of law in Hong Kong’s future’. This book on language and law contains details from broad approaches to be adopted in teaching translation and law, compiling legal glossaries and dictionaries, and ultimately comparing systematically all Chinese legal terms from the three regions. Through an examination of the past three decades, which includes the historic return of Hong Kong to China’s sovereignty in 1997, the book aims to identify the hurdles and problems prevalent in legal translation, explore some existing practices and strategies, and open new opportunities and paths to move forward, mainly in Hong Kong with its growing ties with its neighbouring Chinese regions. It is hoped that this research will invite further relevant academic work into this area of growing importance, especially work focusing on Chinese terminology in other legal areas and the translation of Chinese terminology into English, as legal globalisation is vital to all other areas of development and exchange in and among the Chinese regions.

1.2 Review and framework

This section will review the main legal translation activities that have taken place in Hong Kong, Mainland China and Taiwan, and discuss the general linguisti...

Table of contents

• Cover
• Half Title
• Series
• Title
• Copyright
• Dedication
• Contents
• List of tables and figures
• Preface
• Acknowledgments
• 1 Introduction: about this book
• 2 Challenges in legal translation: a language perspective
• 3 Challenges in legal translation: a legal perspective
• 4 Education in meeting challenges
• 5 Research in meeting challenges
• 6 Conclusion: trends and prospects
• Index