德国功能主义翻译理论视角下法律术语翻译.pdf

TRANSLATION OF LEGAL TERMINOLOGY FROM THE PERSPECTIVE OF GERMAN FUNCTIONALIST TRANSLATION THEORY By ZHANG Pengjie A Thesis Submitted to Graduate School Southwest University of Political Science and Law In Partial Fulfillment of the Requirements for the Degree of Master of Arts in Foreign Linguistics and Applied Linguistics Supervisor Professor ZHANG Shaoquan March 2014 i Acknowledgements I would like to give my heartfelt thankfulness to all those who are contributive to the completion of this thesis Upon the completion of this thesis I would like to convey my sincere thanks and acknowledgements to a number of people encouraging and instructing me during my postgraduate period First and foremost I am deeply indebted to my respectable supervisor Professor Zhang Shaoquan for his patient and valuable guidance who have instructed me in translation studies tutored me with utmost patience when I have studies in Southwest University of Political Science and Law to strive for my M A Degree carefully read my manuscript and offered valuable advice to improve my dissertation His profundity of knowledge has not only influenced my attitude towards academia but also provided a direction for my future life and study Second I also show my sincere thanks to the respectable Professors at the School of Foreign Languages They are Professor Song Lei Professor Xiong Demi Professor Zhao Liang Professor Xiao Yunshu Professor Ni Qingquan Professor Zhang Jianbo Professor Huang Chunfang Professor Zheng Daxuan and Professor Wu Shuqiong who arouse my interest for forensics and render my postgraduate study a memorable experience Last but not least I also have a debt of gratitude to my classmates offering me much encouragement and sincere help in the process of my thesis writing and my family members for their cordial assistance as well as utmost support ii Abstract Nowadays globalization is developing continuously Reform and Open up is moving deeply and international communication becomes more and more frequent In fact legal translation is closely related to international communication Against such a background legal text translation becomes a very important subject for translators During the whole translation process no matter what kind of legal text is translated this activity is a certain issue standing at the crossroads of translation strategies Legal terminologies are the key stones for legal texts At present many scholars focus on this research from different viewpoints and come up with a lot of guiding and shining translation strategies and principles Meanwhile the micro equivalence is put the key position during this trend such as lexical expressions and syntactic structures but the text functions and the translation purposes are ignored The functionalist translation theory departs from traditional linguistic translation theories and puts forward a new method which is helpful to analyze legal terminologies and their translation from a higher viewpoint Under this theory translation is an action with an explicit function and translation strategies should take the function or the purpose of the target text into consideration The criterion to evaluate the translation version is whether the function or aim is realized or not Translating legal terminology also aims at achieving certain purposes and under such guidance translators are encouraged to take advantage of any effective strategy to achieve the expected purpose This thesis s theoretical basis is German Functionalist Translation Theory and this thesis illustrates the application of Skopos rule coherence rule and fidelity rule into the legal terminology translation Under the guidance of each respective rule such concrete translation strategies are put forward as transliteration flexible translation notes included addition of appropriate archaic words conversion of parts of speech selection of big and formal words paraphrase neologism free translation iii literal rendering Key words legal terminology German functionalist translation theory translation strategy iv 摘 要 当今世界 全球一体化不断发展 改革开放深入推进 国际交流日益增加 国际交流离不开法律翻译 在此背景下 法律文本翻译研究成为相关工作者的一 种重要课题 在整个翻译过程中 翻译策略的选择起到至关重要的作用 法律术 语是法律文本的基石 目前 已有很多学者从诸多角度对法律术语的翻译作了研 究 应用了注重微观层面处理的翻译策略 高度重视了短语表达及句法结构上的 对等 宏观上 却忽视了法律术语的功能及其翻译目的 由德国功能主义学派提出的翻译理论从不同于传统语言学派翻译理论的角 度入手 为开展翻译实践提供了全新的思维视角 有助于从更高的层面来研究法 律术语及其翻译 在此理论中 翻译是有明确目的的行为 采用何种方法或策略 是由目标文本在目标文化中所要实现的功能或目的来决定 同样的 法律术语的 翻译也为实现某些特定的功能 此理论鼓励译者为实现预期目的而选择行之有效 的翻译策略 本文以德国功能主义翻译理论为理论基础 探讨了目的原则 连贯原则 忠 实原则在法律术语翻译中的应用 在相应原则的指导下 提出了一些具体的翻译 策略 如音译 词性转换 仿译 创译 意译 直译 关键词 法律术语 德国功能主义翻译理论 翻译策略 1 Contents Acknowledgements i Abstract ii 摘摘 要要 iv Chapter One Introduction 1 1 1 Research background of the study 1 1 2 Objectives of the thesis 1 1 3 Significance of the thesis 2 1 4 Layout of the thesis 2 Chapter Two Literature Review 4 2 1Characteristics of legal terminology 4 2 1 1 Hierarchy 5 2 1 2Unique acceptance 5 2 1 3Polar terms 7 2 1 4Doublets legal pairs and triplets 7 2 2Etymology of legal terminology 8 2 2 1Words inherited from archaisms 8 2 2 2Loan words 9 2 2 3Adopting common words with legal meaning 10 2 2 4Neologism coinage 11 2 3 Previous Studies on Legal Terminology Translation 11 2 3 1 Main factors affecting legal terminology translation 11 2 3 2Guiding principles for legal terminology translation under the guidance of the functionalism 13 2 3 3The Criteria for the Translation of Legal Terms 14 2 4 Limitations of Previous Studies 16 Chapter Three The Theoretical Framework 17 3 1The growth trace of functionalist translation theory 17 2 3 2Core content of the functionalist translation theory 19 3 2 1Basic concepts of translation and its essence 19 3 2 2Participants in the translation process and their roles 20 3 2 3Translation rules 20 Chapter Four Application of The Functionalist Translation Theory to Legal Terminology Translation 23 4 1Application of Skopos rule 24 4 1 1Transliteration 24 4 1 2Flexible translation notes included 24 4 2Application of coherence rule 25 4 2 1Addition of appropriate archaic words 25 4 2 2Conversion of parts of speech 26 4 2 3Selection of big and formal words 26 4 3Application of fidelity rule 26 4 3 1Paraphrase 26 4 3 2Neologism 27 4 3 3Free translation 28 4 3 4Literal rendering 29 Chapter Five Conclusion 31 5 1Major findings 31 5 2Limitations of this dissertation and Recommendations for further research 32 References 33 1 Chapter One Introduction 1 1 Research background of the study In recent decades China has unprecedentedly expanded her participation in international market economy Legal translation a vital medium for the international economy and trade is declared to promote clear and concise communication More and more scholars at home and abroad have cast their eyes on it Legal terms make up an indispensable part of legal language with considerable quantities and play a significant role in the legal field The translation of legal terms has long enjoyed a privileged position So far many scholars have studied the translation of legal terms from such different perspectives as stylistics pragmatics and functional grammar etc It is certain that these studies have laid a solid foundation for the future research Against such a background a further study of legal terminology translation different from traditional approaches is necessary The Functionalist Translation Theory initiated by German scholars has offered an original angle for legal translation by illustrating the clear cut function or purpose of the target text and born edge over traditional views However few studies have applied this theory to legal terminology translation Therefore it is quite essential to conduct researches based on German Functionalist Translation Theory on legal translation especially on legal terminology translation 1 2 Objectives of the thesis In this thesis translation of legal terminology is studied from both the macro theoretical and micro levels Within the framework of German functionalist theory the analysis of legal terminology translation is conducted systemically and comprehensively This thesis is intended to test the feasibility of German Functionalist Theory into legal terminology translation Through the systematic and comprehensive illustration 2 of German Functionalist Translation Theory the receivers can get a more solid view of this distinguished theoretical background knowledge then more creative researches will be conducted This thesis can serve as a tool to ignite further and more significant study on legal translation and the quality of legal terminology translation can be improved a lot Indeed there is a long way to go to achieve the perfect legal terminology translation 1 3 Significance of the thesis A large number of scholars have conducted researches on legal term translation through applying general translation theories and emphasizing micro level thus inaccurate and mechanical translation produces are made The Functionalist Translation Theory developed by German scholars identifies functions or purposes of source text and has been extensively utilized in other fields except for legal domain This thesis focuses on legal terms translation but the distinguishing point is from the German Functionalist perspective Under the guidance of German Functionalist Theory translation purpose determines translation procedure Fully taking translation aim into consideration the overall connotation can revealed This thesis directs a shining analytical perspective for legal terminology translation and the proposed translation strategies can fully satisfy the translation rules thus the translation purposes realized 1 4 Layout of the thesis The structure of this thesis is as follows Chapter One is the introduction for the whole thesis including background and rationale for the study objectives significance and layout of the thesis In Chapter Two the literature review is provided Firstly characteristics of legal terminology are presented including hierarchy unique acceptance polar terms and doublets legal pairs and triplets Secondly such legal terminology etymology as words inherited from archaisms loan words adopting common words with legal meaning and neologism coinage are illustrated Thirdly previous studies on legal 3 terminology translation are analyzed which covers main factors affecting legal terminology translation guiding principles for legal terminology translation under the guidance of the functionalism the criteria for the translation of legal terms Lastly limitations of previous studies should be pointed out in order to further improve the legal terminology translation Chapter Three explores the theoretical framework of this thesis focusing on the Functionalist Translation Theory First is a brief review to the functionalist translation theory After this review it conveys core content of the functionalist translation theory including basic concepts of translation and its essence participants in the translation process and their roles and translation rules Chapter Four is the application of Functionalist Translation Theory to legal terminology translation Under different translation rules different translation strategies are adopted Under the guidance of Skopos rule transliteration and flexible translation notes included are proposed Addition of appropriate archaic words conversion of parts of speech and selection of big and formal words are the results of application of coherence rule Paraphrase neologism free translation and literal rendering are ignited by the application of fidelity rule Chapter Five serves as the conclusion of this thesis In this chapter major findings are summarized limitations of the study are discussed and suggestions for further researches are proposed 4 Chapter Two Literature Review In this chapter the previous related studies are illustrated Firstly characteristics of legal terminology then previous studies on legal terminology translation including main factors affecting legal terminology translation guiding principles for legal terminology translation under the guidance of the functionalism the criteria for the translation of legal terminology Lastly limitations of these studies are presented 2 1Characteristics of legal terminology As is known to all every domain has its own unique and distinctive terms of which people can grasp the essence and promote the development of the respective field That is no exception for legal language A terminology is a technical word with a special meaning used in a certain trade Xiao Yunshu 2001 45 Jargons wholly employed by a certain field can be introduced against such a background Jargon is a sort of social habitual usage to meet the special need of different fields Such as price commodity circulation and profit in trade and clinic diagnosis complication and operation in medicine The same is for the field of law such as take into custody put under surveillance criminal and judgment etc for their definitude in meaning and stateliness of legal profession Legal terminology also called terms of art in legal texts indicates accuracy formality and stateliness of legal documents In the disciple of law there are some terms expressing the specific phenomena and entities Every legal terminology bears its own fixed and given legal connotation that is strictly regulated Generally speaking legal terminology is the special diction which legislature uses to express legal concepts Chen 1998 52 For example 案例汇编 law report 绑架儿童罪 child kidnapping 不作为 inaction 代理人 surrogate 格 式 合 同 form contract 上 诉 权 appellate rights From the macro level viewpoint the formation of legal terminology relates to legal system legal culture social culture and historical elements etc The understanding and utilization of legal terminology is based on legal concepts and the whole legal system Du Jinbang 2004 法律术语的特点 5 87 Legal terminologies are specialized terms and have their own distinctive characteristics such as precision definitude fixed usage and unique meaning Each legal system possesses a large amount of legal terminologies which define their corresponding concepts 2 1 1 Hierarchy As to the hierarchy of terms the concept of hyponymy can be introduced Then what is the hyponymy Hyponymy is a matter of inclusion It is defined in Routledge dictionary of language and linguistics as term suggested by Lyons 1963 in analogy to synonymy for the semantic relation of subordination i e the specification of semantic content the upper term in this sense relation that is the class name is called SUPERORDINATE and the lower terms the members HYPONEYMS Hu Zhuanglin 诉 因 ground of action not cause of action 有名合同 nominate contract not 6 name contract 诉讼时效 in Chinese legal system cannot be replaced by 诉讼期 限 and neither can 平等主体 be substituted for 公平个体 Second is that a daily vocabulary acquires an uncommon denotation when entering legal domain Taking the term ordinary for example when used in daily life it refers to the normal or usual or the expected or commonplace condition while in the Civil Law according to Black s Law Dictionary 8th edition 2004 3843 it means a judge who has jurisdiction by right of office rather than by delegation These two versions are utterly different from each other Another term is suit which possesses several meanings including set of outer clothing of the same material and request made to a superior esp to a ruler If regarded as a legal term civil legal proceedings or lawsuits appear The same applies to action and execution Action means a process of doing something Longman dictionary of contemporary English 1995 in ordinary English while it denotes a civil or criminal judicial proceeding in legal domain Black s 1999 The word execution refers to the act of executing something Longman dictionary 1995 in common English while the legal definition is the act of carrying out or putting into effect as a court order Black s 1999 This kind of vocabulary is called legal homonyms by American linguist Tiersma 1999 111 Some examples are as follows 单词 一般意义 法律意义 aggravation 烦恼因素 处死刑的加重情节 brief 简短的 案件说明书 child 儿童 未成年人 construction 建设 法律解释 motion 运动 动议 practice 联系实践 诉讼程序 prize 奖金 捕获 service 服务 送达 In a word the characteristics of uniqueness and fixation of legal terminologies are determined by the features of legal system 7 2 1 3Polar terms What are polar terms Polar terms mean a pair of terms whose meanings are contradictory with or complementary to each other which is proved by the fact that there exists a contradictory or opposite relation in logic such as man and woman common and special etc In common language the category of antonyms is employed to reflect this kind of word relationship In legal language polar terms are created catering to denote all kinds of opposite legal relations The appearance of polar terms is a natural flow of law Upon to now law has penetrated every aspects of social life One party s right entails other party s obligation There is no right without obligations In a sale contract the buyer has the obligation to pay and the seller has the obligation to deliver to the buyer the demanded goods of the right quantity and quality at the appropriate time and destination and in the stipulated manner or the buyer gains the right to collect the required cargoes of value for his money According to the law citizens have the duty to pay tax This is the state s right or citizens obligation As to the state her obligation is to make use of this amount of money for public interests which is the citizens right Companying this true condition of real life a large collection of polar words in legal system has been created For example principal offender 主犯 accessorial criminal 从犯 party A 甲方 party B 乙方 profit 利润 risk 风险 subject 主体 object 客体 mortgagee 受抵押人 mortgagor 抵押人 vendee 买方 vendor 卖方 lessee 承 租人 lesser 出租人 etc 2 1 4Doublets legal pairs and triplets Another distinctive feature of legal terms is doublets and triplets which are a linear sequence of words showing the well known fastidiousness of lawy