The area I find Chinese legal translators translating from Chinese to English struggle the most with is terminology. A basic reason for this is that the educational system does not provide any preparation for typical translators to be able to begin identifying what English legal terms would be equivalent to the source Chinese. Instead, what the top translators do is create nonsense phrases to serve as translations, and other translators simply blindly copy this material. However, if your goal is to help the target reader understand the material, and not politics, an analytical approach, instead of a copy-and-paste approach, needs to be taken to ensure adequate service for translation readers.
Reader-focused Chinese Translation
The purpose of any professional translation is to provide utility to the end-user of the translation. Note the use of the word “professional.” Here, I believe this emphasizes that the translator is operating in an environment different from what I would call an unaccountable translation environment, particularly government translators at foreign legislatures or academia translators. For a professional translator, the end-user is the party financing the operation and therefore has very fine-grained control over the translation produced, meaning that the translation is beholden to the document end-user. Translators financed primarily by school grants or taxpayer money or tuition funds are generally not being held accountable to the end-user. The so-called “Chinglish” translated signs are a good example of work performed by unaccountable translators; taxpayers don’t use the signs and therefore they go neglected.
For a professional translator analyzing how to translate terms, the methodology should focus on who the target reader is and on their needs. In my case, the ultimate reader is usually an M&A/FDI transaction party, or an American regulator or court overseeing such regulation. In each case, the reader needs to make a good decision about what the Chinese law actually means. If they get it wrong, the damage to a party can be severe.
From a science-based perspective, in practice, we would be talking about the fundamentals of Cognitive Linguistics. Cambridge has a great review book on this science, which you should definitely read. For our purposes as translators, this means the translation term produced should provide the reader with the highest level of subjective cognitive understanding of the source text possible. As the German Skopostheorie field points out, the purpose of the translation and indeed the ability of the individual to understand the language will actually differ from person to person. Therefore, an academic book strictly for underqualified Sinologists who speak poor Chinese, have limited contact with mainland China, and are accustomed to Chinglish jargon will be a lot different than what a typical general counsel in New York seeking “plain legal English” puts before them.
The service-oriented translation practice should therefore use terminology for Chinese laws that conforms to famed American legal writer Brian Garner’s idea of “plain legal English,” and I would usually call this Plain American English. I have also worked on projects in “Academicese” by universities and “Officialese” by legislatures. After the Animal Sciences decision crushed Chinese legislative translators, however, there is now renewed interest to explore Garner’s plain legal English, even among government translators in China. Nonetheless, most translators translating from Chinese to English ignore the target reader and focus solely on authoritative translation terminology, which is an approach I urge against.
Authority Based Translation
Most translators in China tell me they first look to who the highest authority on the translation is, and that will usually be the National People’s Congress. However, official translations’ primary purpose is not to help foreign companies understand the law, thus the translations will only confuse your target reader. A key reason why official translations cannot be understood accurately by readers is that these are financed by taxpayers who do not speak English. Taxpayers want to pay fewer taxes and optimize only for national prestige, thus producing translations only a dozen trained Sinologists can decipher is good enough for getting positive global media coverage. If you asked the average taxpayer on the street whether it’s worthwhile to pay for free resources for foreign companies to better comply with Chinese law, most would be in opposition. Companies should have to pay for good legal insights and foot their own translation bills. Most developing Asian country legislatures’ translations are not intended to be useable by a typical translation client. This manifests in a Chinese legal translation phenomenon I call “dependent definition.”
The strategy of using a dependent definition is essentially to find a way to achieve a 100% accurate translation at 1% of typical costs: you make words up instead of doing hard work. A good example of this is China independently developing a concept of a Sole Proprietorship several decades ago, with a small twist that it’s jointly owned by the family. Yet, several other jurisdictions had Family Proprietorships and, even in Texas, community property law makes a sole proprietorship a de facto family proprietorship. However, translators lacked internet access at the time, which made it too hard to figure out. Thus, they simply made up a new phrase that never existed in English: “Industrial and Commercial Household.” They then proposed that the meaning of the English phrase is simply the definition of the Chinese phrase. None of the words in “Industrial and Commercial Household” mean what they do in English, rather, the translator expects the reader to treat it like a word in a foreign language and learn anew what the concept means.
When asked why they use these translations, law translators in China usually reply that it’s important for the English to have “Chinese Characteristics.” So, even if English already has an existing word, political correctness demands that a new English term be invented just for China. The translation is absolutely political. Recall how the USSR insisted on the word “Cosmonaut,” and China now has a word for “Taikonaut” whereas, for native English speakers, anyone who goes into space is an Astronaut. The politics rejecting the evil Yankee imperialism often requires rejecting English language norms and conventions. Therefore, translators who only follow authority are really following political authority and partaking in a grand political initiative.
The purpose of the Cosmonaut-style authoritative translation is to prove how thoroughly British and American imperialism has been resisted; it’s not to use public services as a means to transfer wealth from the “proletarian masses of the People’s Republic” to the “rich fat-cat capitalists of Wall Street.” In the business world devoid of politics, a company’s general counsel office who wants to follow the law will basically have no way to understand what the law is saying or if local subsidiaries or suppliers are even following the law.
How to Translate Chinese Legal Terms
When deprived of reliance on authority and forced to produce a translation that can be understood, most translation students do not know how to even begin translating a document. Translator education in the Chinese to English language pair seems to develop a capability for copying from one source into the translation but provides zero preparation for understanding the Chinese language document and writing an equivalent the reader can understand. The process itself is actually quite difficult, but there are three general steps and pointers that a translator can take to find a correct translation result.
First, the translator should situate the genre the translated text is located in. In English but not Chinese, there is a big difference between taxation and securities law. For example, the securities law statute says that a corporation is a type of company, whereas taxation is the reverse: it says that a company is a type of corporation (unless it elects partnership or disregarded entity treatment). The political parties laws may define a subdivision of a political party as an “organ” but administrative law defines the subdivision of a government as an “agency.” Once you have identified your genre, look for evidence of construction in linguistic meaning within the discourse of that genre. This, however, is easier said than done; the Cambridge handbook on Discourse Studies is a review of this science that runs over 800 pages. The enormous challenge creates a huge temptation to fake work.
My personal observation is that just about any translator asked to shift to a reader-oriented approach and provide translations that can be cognitively understood by the reader will begin faking work. The translator may go to a client in China and say that the work is based on evidence and can be understood, but even people with no financial incentive to do so will fake the work. There are two particular means by which scientific evidence is faked that are relevant here. The first is using sham data. For example, a translator who wants to say that a Chinglish phrase is used in the United States can simply search a US Government database for the terminology and will find many machine-translated Chinese documents filed there. The translator then says that the SEC or BIS uses the Chinglish term when in reality it’s just a document that was machine translated from Chinese. This is unethical because the data is totally mislabeled; the translator says it’s normal human language from the USA but is really passing off Google Translate as real language.
A second common way of faking terminology work is a fallacy called Cherry Picking. This occurs as a time-saving technique to reach a particular desired conclusion, rather than searching for the correct answer. A scientist might do this by taking a lot of data and simply deleting everything that disagrees with the desired conclusion. In translation terminology, a translator would look at a list of ten language documents and find the one that agrees best with their point, search for more documents like it, and then summarily delete all documents that support an alternative or contrary solution. A native Chinese translator researching English can find an “answer” extremely quickly, but the result is that the actual reader, from a cognitive perspective, cannot actually understand what is being said since terminology is being used wrong. Moreover, the results tend to be highly arcane, seldom-used English expressions that just happened to have been discovered.
Putting it all Together
After you have all the information about the meaning of the Chinese term and closely equivalent English terms, the next step is to analyze the translation. If written down, a statement of your analysis should run at least 30 or so words. One particular feature of Chinese to English translation is that no legal or political word is the total equivalent of any other in all contexts. The same word may need to be translated in different ways in different contexts because a single English word can have a variety of meanings, which is counter to the “unification” approach to Chinese to English translation commonly used today. The end goal of the analysis is to determine how to maximize the reader’s accurate comprehension of the source document while recognizing that there will inevitably be differences in meanings between either language.
