Lack of clarity about language regulation often leads to legal translators being unable to produce clear translations that accurately convey the original meaning, often resorting to an excessively word-to-word style. Chinese legal translators have long struggled with translating words used for ordinary parties, particularly zhuti (主体) and qiye (企业). In a typical corporate compliance context, the term “party,” and not an “entity,” is typically used, consistent with general business law usages, despite it having numerous different translations. However, some translators have raised the suggestion that the meaning within Chinese trade sanctions law should be referring to an “entity,” and there is pretty reasonable evidence for this approach. These translators point to the United States government Form BE-13 for Foreign Direct Investment, which uses the definition “for the BE-13, “entity” is synonymous with “person,” as that term is used in the broad legal sense.” Thus, they argue that the word should refer to an “entity” based on the Foreign Direct Investment Form BE-13. Actually, it’s important to recognize that the BE-13 is used by the Bureau of Economic Affairs, and is not relevant to typical corporate law usage since international law contexts apply a different definition for “entity” than domestic ones.
Legal translators in China following this reasoning are making a mistake by simply searching the internet for a definition of a word and using whatever shows up without considering the specific legal field. ”Entity” is one of those words in English where every government agency seems to use its own preferred terminology, with no uniform vocabulary across agencies. For example, the IRS refers to the same thing as a “business entity,” whereas the SEC uses “company,” creating so much confusion that Chinglish invented a new legal usage for the word “enterprise” to cover all situations. Moreover, the terminology used to describe a corporation shifts when you are moving from corporate finance to corporate securities. I’ve been to many legal translation conferences in China and have seen probably a dozen scholars express confusion about how the same English word can seem to mean contradictory things in different situations. They keep trying to find a so-called “unified,” or one-size-fits-all approach to always translating the same word the same way, but this leads to incoherent Chinglish.
In my view, these legal translation experts in China seem to have so much difficulty and consternation because they are not aware of the difference between language regulation in civil law countries vs. common law countries and keep trying to apply a civil law approach to a common law language.
Language Regulation: Spontaneous or Planned?
When trying to get an understanding of the topic of language regulation and how it creates translation problems between Chinese and English if not accounted for, it’s helpful to define the two approaches that countries take to language regulation: spontaneous and planned. In the spontaneous approach, which is taken by default, countries allow their citizens to develop language conventions and norms through everyday usage and interaction. In the planned approach, now used in most countries today, central planners define all of the language.
In an enlightening article you can find here, Givati shows that language is generally considered a classic illustration of Spontaneous Order. However, many countries prefer to adopt a Planned Order strategy for language regulation, attempting to centrally manage and control it through language academies. Givati presents fresh data on the regulation of language across different countries and demonstrates a strong correlation between language regulation, law, and economy in countries utilizing a Planned Order model for language. On the contrary, countries leaning towards a Spontaneous Order approach to language also apply this same philosophy to their law and have a comparable inclination towards a Spontaneous Order approach in their economy. Givati persuasively contends that these approaches are driven by a fundamental cultural attitude toward the two types of order.
Centrally Planned Language Development, as in China
In China, language regulators play a key role in language standardization. The main goal of language regulation is to ensure the correct and consistent use of language across different contexts, including ensuring that the language is understood by all users, that it is used correctly, and that it is accessible to all.
Language standardization is done for many reasons. For instance, it makes it easier for people to communicate with each other, as they can be sure that the language they are using is understood by all parties. When language is standardized, it is also less likely to be corrupted or changed, ensuring consistency and comprehensibility by all. In a country with fantastic ethnic diversity, like China, language regulation makes it possible for people at opposite ends of the country to understand each other in conversation, something that was impossible a mere century ago.
Language standardization is desired in many countries to promote cultural unity, which in Chinglish is called “cultural unification,” and China, in particular, places extreme emphasis on cultural unity. In the 1930s, before language standardization was accomplished in China, the nation was divided into a half dozen regions controlled by warlords who battled each other for dominance. In the 19th century, the southern Chinese assisted the British in their invasion of northern China, resulting in unequal treaties and the cessation of Hong Kong. Much of China’s policy in Hong Kong can even be understood by looking at the history that led to the demand for cultural unity.
In China, language regulation falls under the responsibility of the State Language Work Committee. The Committee has the power to create and enforce language standards, as well as the power to monitor and assess language use, issue warnings, and take disciplinary action against non-compliance with the standards. As language regulators, they also play an important role in language education, developing and delivering language education programs, and providing guidance and support to language educators. Compared to regulators in many other countries, China’s State Language Work Committee exercises vast power over how Mandarin Chinese is used and can require media platforms to use definitions and language conventions that accord with its standards. For example, many of the articles in the popular online encyclopedia Baidu Baike directly copy government sources.
Spontaneous Language Development, as in the US
All major world languages have an official language regulator, except for English. That’s right, not a single English-speaking country has an English language regulator. Rather than this being due to the absence of any activity or meaning at all, Givati’s research shows that the US and UK have achieved a decentralized system that gets better results than their heavy-handed civil law counterparts.
Givati’s research examines the correlation between language management and the legal system, highlighting the distinction between common-law and civil-law frameworks as a comparison between Spontaneous and Planned Orders. Common law is an illustration of a Spontaneous Order, which evolved through time without an intended plan. In contrast, civil law is an example of a Planned Order, wherein legal scientists form legal codes to cover key areas of the law. Givati reveals a solid association between language regulation and the usage of civil-law legal systems, meaning that countries adopting a Planned Order approach to language tend to take a similar approach with their legal systems. This connection between language control and civil law is particularly noteworthy because many civil-law countries began regulating their languages prior to embracing the fundamental element of a civil law legal system – the civil code.
Why doesn’t the United States regulate language? Givati sought to uncover whether nations with language regulations achieve higher outcomes in language proficiency. To explore this, he used data from the Organisation for Economic Co-operation and Development (OECD) Program for International Student Assessment (PISA) to measure reading comprehension levels. Givati’s findings suggest that stricter language regulations correlate to lower reading comprehension scores, even after adjusting the math for each country’s PISA scores.
Overall, recent research on this subject indicates that English-speaking countries’ refusal to centrally regulate and plan their languages is well-founded. Humans naturally adapt and evolve language to improve their communicative efficiency within their language communities, particularly among professionals working in the same field. Attempting to impose uniform language across a variety of unrelated fields and industries would, in fact, reduce, not raise, efficiency.
What Language Regulation Means for Legal Translation
In the context of legal translation, and particularly my field of Chinese-English legal translation, I believe that it’s crucial for translators not native in English to realize that it’s totally normal for executive agencies to develop language conventions differently in the absence of regulation on language standardization. Since people in different fields tend not to interact, there is really no reason for someone in import/export or corporate finance to use words and language in the exact same way as someone in securities. That kind of uniformity and standardization might occur if a central authority is forcing each of those communities to use words in a certain way, which is not done in English-speaking countries’ regulatory law.
The large cultural gap between the language structures of common law and civil law countries highlights the need for legal translators to refrain from applying a kind of Boolean logic to translation between English and a civil law country language. Poorly skilled translators love to apply one-to-one correspondences and rigid grammar rules when translating into English, and the result is something that can hardly be understood by native speakers.
Suppose you are following the definitions provided in the Department of Commerce’s regulation and rigidly applying them to typical corporate finance matters. A human American lawyer looking at the conventionalist text would be able to tell that the terminology is used wrong within seconds. The reason the human knows this is that they’ve practiced US law for many years–and maybe 1 in 10,000 US lawyers have anything to do with the Department of Commerce whereas 99.8% of transactional lawyers deal with IRS/SOS matters—and, having been in the community of lawyers for many years, are aware of nobody having rigidly followed the Commerce regulation terms. Those may as well be space alien terms. The key point here is there is no unified English vocabulary; each agency and indeed field of law uses the same terms differently, usually without even knowing what people in different fields are doing.
Mastering the huge differences between how language regulation is done in English-speaking countries and civil law countries, particularly China, which has the heaviest regulation of language, is essential to accomplishing effective translation between civil law and common law countries.
