Legal documents are full of vague and ambiguous terms that don’t seem to refer to anything, and thus defy translation. A typical translator encountering such terms will tend to treat them like meaningless non-words and opt for one of two highly problematic approaches. First, the translator may use a word-for-word approach, translating each word of an indefinite phrase according to the dictionary recommendation, without any regard to meaning. Second, the translator may simply assume that the phrase has some definite, intended meaning that the drafter merely forgot to specify. Regardless, both scenarios are nightmares for any lawyer working internationally. In this article, I’ll be explaining a viable, science-based approach that can accurately resolve the meaning of the text without adversely affecting the intended meaning.
Translating indefinites word-for-word or making assumptions gets bad results
The majority of translators working with legal documents, or at least when translating between Chinese and English, will break an indefinite phrase down to its individual words, or even syllables, and translate these word for word.
Word-for-word translation can cause serious problems even for even slightly indefinite phrases, where collaborators are identifying highly specific objective facts. A good example is the somewhat indefinite phrase “alternative fuel vehicles,” which in Chinglish has been called “new energy vehicles,” thus eliminating Chinese voices from the conversation globally. Isolating the semantics has also erased discourse about Chinese innovation, and focused it on plans to gain market dominance, especially market subsidies. The result has been EU and US tariffs and accusations of unfair competition.
In Chinese to English legal translations, you often see this manifest as phrases like “relevant departments” or “relevant laws and regulations.” In English, those phrases refer to the appropriate agency to regulate a matter or the applicable law that governs the matter. The result is the readers fundamentally can’t understand the document and won’t even read it.
These translators reason that the indefinite expression added when the document was written does not seem to refer to anything at all, and therefore is essentially devoid of meaning. However, this is usually mistaken because all phrases used have a discernable meaning to the parties involved. Moreover, in modern societies, the reasons for using indefiniteness often have to do with the kinds of problems encountered in all industrialized economies. Thus, there is typically an equivalent indefinite phrase or group of phrases that can be used to describe indefiniteness.
Translators across a variety of specializations make the mistake of assuming a highly specific interpretation from the context, or even localizing the text to make it perfectly understandable. Let’s look at problems this can cause in non-legal fields before looking at a tough legal question.
You may have caught news reports about controversy in the Squid Games translation about erasing important cultural concepts from the language. In particular, highly cultured manners of speaking were rendered merely as “Mr./Ms.,” and this resulted in a lot of controversy about erasing culture. Actually, the majority of non-English native translators do this with various titles and honorifics in Asian languages. The people who respect the culture are usually Sinologists or other American translators who are also studying Asian culture. Nonetheless, honorifics from Chinese, such as “Laoshi” are simply rendered as “Mr./Ms.” In most cases, or in some legal translations they’re even rendered as “teacher” even if the laoshi (indefinite word) is not a jiaoshi (teacher).
In my observation, translators making these errors are making unreasonable or excessive assumptions because it fits in with their personal life experience or opinions. The problem here is most translators learned language on pop culture and are totally ignorant of what professionals do.
In the finance field, I saw a letter translated from English to Chinese about certain Wall Street finance where “hundreds of millions” was toned down to a more modest and culturally appropriate “millions.” Apparently unfamiliar with just how much money Wall Street finance can involve, the translator imposed his own life experience and assumed that finance would never go beyond seven digits!
In the legal context, excessive assumptions, can result in serious problems because two parties to an agreement or a dispute could encounter very serious issues if the assumed words have to do with an obligation, representation, or liability. A real-world example of this is a credit card letter to consumers specifying that rewards will be accrued starting on “March 5 of this year,” and the translator, when translating the letter the first time, wrote “March 5 of 2010.” This worked great in 2010 but, in 2011, the company sent out a letter saying the exact same thing, and consumers began claiming rewards back-dated to the prior year! In this case, the letter was deliberately indefinite because it would determine the date based on when the letter was sent out.
The opposite can often occur, where a definite expression is rendered as an indefinite expression because it conforms to the translator’s preferences. A good example is where a translator read the date “2024” in the context of, “our company was acquired by a larger enterprise in 2024, so I wasn’t familiar with the compliance requirements.” The translator here rendered “2024” to “recently,” based on a belief that the language would read more smoothly using this approach. However, the specific dates are very important in the legal facts context, and in both languages using indefinite time references to describe when key legal facts occurred wouldn’t be acceptable. As in the finance letter, translators’ unfamiliarity with professional contexts creates serious risks in the translation.
Science-based solutions to translating indefinite expressions
If you’ve read my previous articles, you’ll notice that I recommend science-based solutions for solving translation problems. A big reason for this is that the word-for-word translation approach favored in legal translation is primarily a tradition handed down from the Stone Age that has received no validation as to its usefulness in an industrialized society. While Clifford Geertz’s exploration of Asia-Pacific islander tribes, who spontaneously developed the word-for-word translation approach shortly after making foreign contact, shows clearly how this kind of instinct is essential to primitive tribal communication, there is no evidence that such an approach is useful for societies that have legal regimes sophisticated enough to call for indefiniteness as a drafting strategy.
MAK Halliday’s linguistics approach, Systemic Functional Linguistics, is useful in this case. Halliday recommends a sophisticated analysis that revolves around the metafunctions of language: the ideational, textual, and interpersonal functions of a text. Let’s apply this to the legal Chinglish examples above, starting with “relevant department.” In this case, the ideational metafunction of the text is to describe a government agency that has jurisdiction over certain matters.
Second, the textual metafunction of those texts is usually to create a rule or regulation that does not need to be amended each time a regulatory agency is consolidated, much like how China in recent memory created a new market regulator. Third, the interpersonal metafunction is mainly to exert control over government bureaucrats to keep turf wars forming, while notifying the public that there is a bureaucrat responsible for these matters. In United States administrative law, the closest thing is typically called the “appropriate agency,” with “appropriate” pointing to a bureaucrat, and “agency” being a subdivision or instrumentality of a government branch.
Notice here that word-to-word equivalence does not really exist. Contrary to what Chinese-English dictionaries say, Mandarin does not have any word intended to map exactly onto the English word for “agency.” While doing research in Beijing, MAK Halliday also noticed this phenomenon but concluded that words in themselves have no inherent meaning; rather, there is what he calls a “lexicogrammar,” the lexicon merged with the grammar in which it is found. Thus, believers in word-to-word translation and word definitions who attempt to use the method to create or correct word-to-word translation associations will be sorely disappointed.
The above example of dates badly mangled is relatively easier to analyze under the systemic functional linguistics approach. The textual metafunction here is also to create a legal text that does not need to be updated and revised to meet changing conditions. When the translator decides to localize an indefinite expression into something specifically defined, the textual metafunction of the text changes in this respect. Even highly skilled translators can make this mistake if they are not familiar with legal writing.
Translating anti-language such as thieves cant
A small number of problems in the anti-language category are unsolvable within the translation context, but nonetheless lend themselves to analysis under the systemic functional linguistics approach. Anti-language, also called “thieves’ cant,” refers to language meant to exclude or mislead people outside of the in-group. Anti-language is often used in corporate crime to avoid detection while committing a white-collar crime. A classic example of an anti-language is where bribery in Angola was referred to as “gasosas,” which means “soft drinks,” and in the right contexts would be clearly understood to be describing bribery.
In pharmaceuticals FCPA, anti-language phrases in Asia have included phrases such as “clinical fee,” referring to a bribe, or “bed sweeping bills,” referring to the common practice of pharmaceutical sales representatives purchasing patient medical records. These are good examples of aggressively and deliberately excluding language, as outside parties will have no way to understand them. More recently, a whole variety of anti-language has emerged around the language of semiconductor import/export, using direct translations into nonsense Chinese phrases that look like they map onto the US Export Administration Regulations.
The language here is carefully crafted by lawyers to appear one way to compliance officers, but another way to local parties. For example, there are contracts about export “restricted parties” that look to compliance officers like EAR regulations. However, in a contracting situation, counterparties and courts would see these are “sanctioned parties” and may look to a different list entirely than is used in import/export.
Conclusion
Indefiniteness is a key part of legal language and one not well-understood by most translators, who for the most part treat indefiniteness as poor writing and don’t confront the issue head-on. This should be avoided explicitly in any legal texts you encounter; instead, you should use an appropriate science-based approach from the field of linguistics to resolve the meaning.
