（外国语言学及应用语言学专业论文）试论法律翻译原则.pdf

中文摘要 i 摘 要 中国成功“入世”后 国内对法律翻译出现了前所未有的需求与重视 除了翻译 世贸组织的大量法律之外香港特别行政区和澳门特别行政区的现行法律也急需 翻译法律翻译越来越成为一个重要的研究课题 作为一种特殊文本的翻译法律翻译只是翻译的一个分支随着全球化趋势 和跨文化交流的增强翻译工作者们已经意识到了研究法律翻译的重要性 arevi 认为 法律翻译文本很重要是因为它决定了在一些特定的法律交际环境中 哪一个文本可以被采用法律翻译不再被人们视为一个语言学的转换代码的过程 而是一种法律机制中的交际行为法律是一种社会规范是由政府或者其他权力 机构制定或认可的准则规定规则等是规定人们的权利和义务的规范是有 国家强制力作保障的规范法律语言作为法律的载体是广泛而复杂的法律英语 是法律语言的一种是一种具有法律职业技术特征的职业语言成功的法律翻译 不仅要求译者掌握原文文本的词句意义还要求译者必须理解原文法律预期达到 的法律效果如何才能在目的语中取得相应的效果 然而迄今为止的研究大多只是集中于解决单个词或句子层面的实用翻译技 巧少见系统综合地探讨法律翻译并从理论上为译者提供具有普遍意义的理论依 据和实践指导针对这一研究现状本文从文体学角度出发采用中英文对比研 究的方法分析了法律英语的特点作为一种特殊文本的翻译法律翻译有其自 身的特点在阅读了大量法律文件的基础上作者总结出了法律英语在词汇语 义语法等方面的特点诸如频繁使用古语和外来语用词庄重规范普通词具 有特殊法律意义使用成对词或近义词及重复结构长句复杂句偏多 由于法律文本具有高度的严肃性和严密性法律翻译必须不折不扣准确无 误地译出原文的内容同时又要使译文顺畅且符合法律语言的文体风格因而 本文试探性地提出“忠实严谨 规范通顺”作为法律翻译的原则 理想的法律翻译应 该是二者的完美结合同时本文通过大量例句详细论述了拟定的法律翻译原 则如何运用于翻译实践及其在这原则指导下所应采取的翻译策略 法律翻译由于其自身的特殊性不仅要求译者具有高超的翻译技巧还要求 译者具有丰富的法律知识没有这两个前提法律文件的翻译质量就无法得到保 证本文的研究只是一个开始有关法律翻译理论与实践相结合的研究还有待于 进一步进行 关键词法律翻译翻译原则忠实严谨规范通顺 abstract iii abstract as a kind of special-purpose translation, legal translation is only one of the sub-areas of translation. with chinas successful accession to the wto and the tendency of globalization, more and more translators have realized that the study of legal translation will become an important research topic and started to study it. according to arevi, the status of legal translation is important because it determines which translations can be used in specific situations in legal communication. most of previous studies are only focused on practical translating skills for individual words and sentences, and the comprehensive and systematic study is hardly found. legal language has its own linguistic features. this dissertation analyzes the special features of legal language by focusing on a number of topicsterminology, grammatical structure, and style. as a sort of specialized texts, law has its own features, so is legal translation. legal translation has its own lexical features such as frequent employment of archaic and loan words and phrases, common words with special meanings, preference for formal and big words; semantic features such as frequent use of synonyms and near-synonyms, repetition of words for accuracy; and grammatical features such as objective composition of declarative sentences and frequent employment of long complicated sentences. the legitimacy of legal texts makes it imperative that in the process of translation, “faithfulness and rigor, conventionality and smoothness” can be adopted as principles of legal translation. then it shows, with illustrative examples, how principles of legal translation can be put into practice in actual c-e translation and vice versa. and through a comprehensive and systematic analysis of examples of misinterpretation and of translation errors evident in legal translation, the author highlights the problems and pitfalls encountered by professional translators in the field of legal translation and lays down some general strategies for dealing with these problems. due to its features, legal translation not only demands translators translation skills but also their profound knowledge of the law. this dissertation is only a stimulant to future research and much more remains to be done in this field. key words: legal translation, principles, faithfulness and rigor, conventionality and smoothness chapter one introduction 1 chapter one introduction 1.1 necessity of studying principles of legal translation in our age, multilingual communication is an accepted fact of everyday life. no aspect of human affairs is completely isolated from contact with the law. people in modern age are more dependent on legal translation than ever before. the globalization of trade and financial markets keeps legal translation in high demand. the greatest volume of legal translation has been done in the european union. since chinas successful accession to the world trade organization (wto), the trade across language boundaries has never been more important and necessary than that of today and the need of legal translation has topped the history of it in the nation wide. the worldwide exchange in such areas as the economy, culture, politics and science requires some acquaintance with international law. quite a lot of translations are being done in the diplomatic sphere. for example, bilateral and multilateral treaties as instances of legal texts are agreed and translated. under these circumstances legal translation plays an extremely important role and will be more and more indispensable in international social affairs. the study of translation of legal documents, such as the translation of economic laws, rules and regulations, and contract documents, will surely become an important research topic for translators. therefore, legal translation has a bright future in local, national and international law in the future. legal translation is important in multilingual countries as well as in bilegal countries. in most cases, the translation of legal instruments in multilingual countries with one legal system is less complicated than that in bilegal countries. the difficulty of a legal translation depends primarily on the affinity between the two legal systems and only subsidiarily on the affinity between the source and target languages. hong kong returned to china on july 1, 1997, and its common law system will be retained at least 50 years. thus, the peoples republic of china is bilegal now and hong kong became officially bilingual in 1986. although all new principal laws are enacted in both english and chinese now, translation of the previous laws of hong kong still became inevitable and necessary. it is conceptual, structural, and ideological differences between the chinese socialist law and the english common law of hong kong that made the translation extremely difficult. from a practical point of view, the study of legal translation is very relevant to our 重庆大学硕士学位论文 2 ordinary life and study. reality is far more complex than it is suggested by ordinary people. usually, legal translators and graduate students of law have little problems with the understanding of their legal english materials, however, when they translate these materials, the versions they make always turn out to be lack of smoothness and naturalness and not to present a flavor of legal english. on the other hand, as english language translators are ignorant of legal knowledge, the versions they make tend to be non-professional and non-standardized ones, even if they do understand the original ones with the help of a dictionary of law. recently, more and more researches have been conducted on translation techniques of words and sentences in legal english texts. the publications on legal terminology, legal english grammar and legal translation have been presented in succession, which have benefited ones understandings of legal translation at the lexical and syntactic levels. however, all of these researches on legal translation are focused on separate units of linguistic structures, i.e. only concerned with the paraphrasing of words and sentences. the comprehensive and systematic study on legal translation is hardly found. there are only word-to-word, sentence-to-sentence translation methods. less attention has been paid to the stylistic and pragmatic features of legal english, let alone to the genre features of legal text. most of these studies pay special attention to practical examples instead of theory, principles and strategies. by now, no research has been done on the overall guideline for legal translation. against this background, this dissertation attempts to explore the overall principles of legal translation. 1.2 objectives of the dissertation as a social science, law is a regime of adjusting relations and ordering human behavior through the force of a socially organized group. the language of the law is a prominent indicator of the social and historical origin and motivation of the legal text acts as instrument of social regulation and discipline. the translation of legal texts of any sort, from statute laws to contracts to courtroom testimony, involves at least three areas of theories: legal theory, language theory and translation theory. the importance of the cross-disciplinary perspective lies in the fact that language learners may need to be trained in the use of the language in typical legal settings. they may have the ability to use languages in their everyday life when they find it necessary; however, when it comes to the question of handling legal language, especially legal rules and regulations, legal agreements and contracts, it is likely that many of them will quite understandably chapter one introduction 3 feel nervous about it. legal translation is one part of specialized translation. based on the concept of register, this paper first makes a comprehensive and systematic stylistic analysis of legal texts, and then attempts to provide a theoretical framework for the translation of legal texts and to suggest some principles of legal translation in concert with the combination of content and style, meaning and form on all levels. it also intends to lay down some general strategies for dealing with the problems and pitfalls encountered by professional translators in the field of legal translation under the guidance of principles of legal translation and show how translators should put l anguage into action to achieve the desired legal effects in practice. 1.3 layout of the dissertation setting the tone for the interdisciplinary nature of this study, this dissertation comprises the following six chapters: chapter one is an introduction, which gives a brief introduction to the necessity and objectives as well as the layout of the dissertation. chapter two reviews legal translation history and relevant research works both in and outside china. it presents historical survey of legal translation from roman law to the present day. dominated by literal translation for over one thousand years, legal translation did not experience a major emancipation until late in the twentieth century. it can be seen that the previous researches were mainly connected with the understanding and translating at single lexical and syntactical level. chapter three discusses sufficiently some language features of legal language, which shall be paid attention to, and provides basic information on legal texts and legal translation, distinguishing legal texts from other texts and showing why legal translation is special. the principal substantive aim of chapter four is that of providing principles of legal translation with regard to combination of form and meaning, content and style. based on communicative translation method, the principles of legal translation attempt to render the exact contextual meaning and legal effects of the original to the target readers. chapter five contains comprehensive analysis of legal t ranslation as an act of communication within the mechanism of the law and provides detailed comments on the different english and chinese versions of legal texts to show some practical 重庆大学硕士学位论文 4 strategies of translating legal texts under the guide of suggested principles in chapter four. the concluding remarks in chapter six summarize the research i have done in this dissertation in the hope that more researches should be carried out in the future study of legal translation comprehensively and systematically. at the same time, it points out that the question of creativity, ambiguity and some others are worth further studying, and it is also worth considering that to what extent legal translators can be creative and ambiguous and still respect the basic principles of legal translation. chapter two literature review 5 chapter two literature review 2.1 general review on translation criteria and principles when we talk about the principles of translation, seldom have we dealt with the translation principle without any mention of yan fu and his three-character guide - faithfulness, expressiveness and elegance. these principles were put forth in 1896 in the qing dynasty and influenced the development of translation practice and theory in china for almost half a century. according to yan fu, faithfulness requires that the meaning in the target language should be faithful to the meaning of the original; expressiveness is the requirement of intelligibility of the target language text, and the translated text should be in accordance with the language rules of the target language; elegance requires a translation to be esthetically pleasing in refined words. though considered as a unity, faithfulness and expressiveness are more important than elegance; while faithfulness is more significant than expressiveness. after it came into being, there have been different comments and critiques of the principle in the modern history of translation in china. most translators or translation critics accept yan fus faithfulness and expressiveness, but some think that elegance is not always valid because there are various kinds of articles with different contents and in different styles. of his translations, one of the most worth mentioning is lesprit des lois (论法的精 神) written by french thinker montesquieu, which helped chinese understand the thoughts of western democratic politics. there was another figure during the qing dynasty who has long been neglected as a translation theoristma jianzhong. in 1894, five years before the publication of yan fus principles in the preface of evolution and ethics, ma jianzhong set forth three requirements for a good translation in his article “on establishing a translation institution”, namely: (1)a translator should have a good mastery of the two languages. he is required to know the differences and similarities between the two languages. (2)a translator should have a full understanding of the meaning, style and spirit of the source text and transfer them exactly into the target language. (3)there should be no discrepancies between the source text and the target text. the target text is required to be identical with the source text. ma jianzhong set very high requirements for translators, which can be concluded in just one word, that is faithfulness (feng guohua if the original text is an artistic work, it should remain artistic after it is rendered into another language. fu leis theory, as lao long (1987) sees it, is just an extension and development of yan fus faithfulness, expressiveness, and elegance. if yan fus principle is a guideline for general translation, fu leis expression resemblance may be regarded as the ultimate requirement for literary translation. perhaps it is not so applicable and useful for guiding the translation of technical and specialized texts. in 1964, qian zhongshu, a member of the cultural elite in present-day china, put forward his transfiguration for literary translation. transfiguration in buddhism means the process by which the soul, spirit, or some other parts of personality, vacates the body it has been occupying and enters another body. qian zhongshu borrowed the buddhist term in summarizing his theory of literary translation. a literary translation is like the act of transmigration i n which the soul, the spirit of the original text remains in the target text even though the carrier of them, the language, has been changed. at this point, qian zhongshus transfiguration of literary translation is, to some extent, alike to fu leis expression resemblance. in 1979, qian zhongshu pointed out in translation of lin shu that the highest principle for literary translation is transfiguration. he maintained that the translated version should be so faithful to the original work that it should not be read like a translated text, since the original text wont be read like a translated version in the source language. after china opened its door to the outside world, chinese translators and translation theorists were able to broaden their vision. with the introduction of different views on translation from the west, chinese translators are rethinking the theories they have followed, and the research in translation theories has diversified. since 1980s they have presented different kinds of principles for translation based on the previous studies and their personal translation experience such as faithfulness, expressiveness and closeness by liu chongde (1983), appropriateness by fang mengzhi (1989), the best 重庆大学硕士学位论文 8 approximation by gu zhengkun (1989), theory of a similar feeling by fan zhongying (1994), theory of harmony by zheng hailing (1999) and etc. as liu zuwei stated in his paper “modern linguistics and translation theory”, “it is the object for translation theory researchers to devote themselves to working out how to make use of achievements in modern linguistics to further discuss the issue of equivalence in translation” (liu zuwei, 1986). one of the most important translation theories from the angle of modern linguistics is the theory of equivalence, particularly eugene a. nidas functional equivalence. all of the theories have enriched the principles of translation and exerted a great influence on translation practice. over the centuries, there has been a continual dispute between two schools of translation in china: literal translation and liberal translation. as a matter of fact, it was a debate, as nida puts it, between the scholar and the stylist. among the early translators, kumarajiva is generally assumed to be a free-hander. schleiermacher made a distinction between the translation of works of art (literary and scientific texts) which he referred to as ubersetzen and