Translators of Chinese law today continue to apply a medievalist, Catholic Jesuit approach to their work. Despite years of Marxist revolution and indoctrination, “faith” remains the first and foremost principle of legal translation applied to Chinese law. Specifically, “faith” in a kind of Platonic Heaven where all concepts are divinely crafted and projected onto our mortal realm. So many battle scars have accumulated over translation methodology that most translators following this approach do not actually understand the roots or justification for their practice.
When attempting to transition from a “Chinglish” translation approach to modern, idiomatic translations, translators inevitably get tripped up by medieval translation dogmas handed down through tradition. In this article, I’ll analyze a very common learning error that translators make: replacing all instances of the word “contract” with the word “agreement,” even though this appears bizarre to legal practitioners and causes confusion.
The Two Dogmas of Contemporary Law Translation
Previously, I described two unscientific dogmas of contemporary Chinese-to-English translation that underpin the approach of most translators. An effective translator must first learn what they are and then unlearn them:
- Platonist Metaphysics (see article).
- Xin Da Ya (see article).
The Xin Da Ya theory is based on Platonist Metaphysics, which holds that all things we can name have a perfect correlation in a kind of Platonic Heaven. For example, there is a perfect form of justice and therefore, when translating “faithfully” between Chinese and English, both the Chinese and English words for justice in legal documents are merely projections of that perfect form. This “faithfulness” is the first element of the Xin Da Ya theory, Xin (faithfulness).
This last prong was taken directly from early modern Christian thought by Qing-era Jesuit translation collaborators and provides a window into the immense influence that Platonic Christian metaphysics had on Chinese-to-English translation. Even if translators are not themselves priestly people, they are seen espousing the “faith” all the same.
The theory itself espouses a balancing act between Xin, Da, and Ya, based on the pseudoscientific ideas of 19th-century thinkers, not unlike the discredited theory of the four humors, and falsely attributed to the famous science translator Yan Fu. As far as I know, none of China’s top translation schools teach Xin Da Ya anymore, yet it remains a major myth that gives rise to all sorts of bizarre translation theories.
You can learn all about the problems with Xin Da Ya in a previous article. Below, I’ll explain how Xin Da Ya causes translators looking to create more coherent and understandable legal translations to deliberately use inaccurate translations in an effort to “rebalance” faithfulness (Xin) with elegance (Ya). However, if real science like semiotics from linguistics theory is applied, we discover that no such “rebalancing” is needed.
Xin Da Ya + Plato Causes Translators to Change All “Contracts” to “Agreements”
In recent years, Chinese legal translators working with transactional documents have heard a lot about how Chinglish is a big social evil caused by word-for-word translation. In their view, following a dictionary to produce a word-for-word translation is considered “faithful” due to its consistency with the Platonic view of one-to-one relationships with eternal Forms. Therefore, if a translation of a contract needs to be more understandable and coherent, their solution is to begin introducing inaccuracies into the translation.
The first place this becomes apparent in translator behavior is the replacement of all instances of “contract” with “agreement.” So, for example, if a Chinese document refers to both a license contract and a license agreement, translators following this approach will translate both as a license agreement. Why might this be a problem?
Despite the tremendous overlap, a contract is not the same as an agreement, whether in China or in the United States. An agreement is a social phenomenon that harkens back to the era of the “gentlemen’s agreement,” formed on a handshake and representing an exchange of promises between parties. Moreover, it’s something that predominantly appears outside the law.
A contract, on the other hand, is a legal construct explicitly defined by contract law. While agreement and contract designations mostly overlap, they are not identical. A criminal enterprise may have implicit agreements but not contracts in the legal sense. Likewise, a contract may remain binding even in the absence of a subsequent agreement.
In the Xin Da Ya theory known to all translators of Chinese, they believe that by replacing the word contract with the more colloquial and common term agreement, they are achieving more “elegance” (Ya).
Applying the Skopostheorie framework I described in a previous article here, the goal of a contract translation would be to accurately convey the contents of the contract. Readability and understandability are essential to that, but not at the expense of accuracy. The translators in the above example are not improving understandability, but they are certainly reducing the accuracy of the information conveyed.
In some cases, this distinction can be material. For example, China’s intellectual property registrar requires the filing of a license contract in its regulatory policy and explicitly states that no copy of the license agreement itself is necessary. Why? Because a contract, in their view, is a legal construct, not just a piece of paper. Therefore, they will accept a license contract filing without the paper.
Thus, within the Skopostheorie framework that defines the objective of the translation project, we need to apply semiotics to get adequate results for clients. That is to say, instead of relying on a theory of one-to-one relationships as espoused by Platonic Forms, we should instead apply semiotics—particularly social semiotics, which sees linguistic signs as complex functions of a lexicogrammatical system.
Linguistics Scientists Urge Sociolinguistics and Semiotics
Princeton offers a course on linguistics that provides an excellent overview of semiotics, which can be found on their site. The field itself is as complex as any science, but we can get a general understanding by analyzing a diagram provided by the university:
In this diagram, semiotics is illustrated as a theory of language expression involving a person expressing ideas, a subjective idea of what is signified, an objective thing about which the subjective knowledge is acquired, and a sign to represent it (e.g., a tree, contract, or agreement). In conjunction with sociolinguistics, most linguistic scientists today agree that the process of semiosis applies signs to subjective ideas that people develop based on their sensory perception of the physical world. While the full findings of this field are too extensive to cover in anything short of a PhD dissertation, we can clearly establish what science does not say: the human mind does not draw on anything like a Platonic Heaven of Forms when doing translation.
I think phytosemiotics, the study of plant language, is a good metaphor for what humans are achieving with our more complex anthroposemiotics. When you have a row of plants of the same species and lifecycle stage, you’ll notice they all grow to the same height without needing any extra trimming. Scientists have found that plants use hydrocarbon signs to communicate and coordinate their growth to ensure they do not disrupt each other’s photosynthesis or waste resources competing for light (as they would with different species).
The semiotic system of plants, without dealing with brainy knowledge at all, coordinates world information and behavior. Similarly, social semiotics looks at how humans operate within a social system, and posits that signs and signified meanings function within three main roles: textual, interpersonal, and ideational.
So, Is Hetong (合同) a Contract or Is It an Agreement?
We can now return to the original translation problem, where translators are replacing the word contract with agreement everywhere because it seems more colloquial. In their view, the Xin Da Ya theory, based on Platonic Forms, essentially says that a “faithful” (Xin) translation is one that matches the eternal Forms correctly. To create a more “elegant” (Ya) translation, they believe they need to “balance the humors” to some extent by selecting a near-synonymous eternal Form: agreement.
Often this switch occurs when translators start referring to government agencies in China as “agencies” instead of “relevant departments,” as they gradually get used to the idea of substituting an eternal Form for a Chinese government unit for the Western equivalent. By the way, this process is all very cultural and subconscious; only serious philosophers would think through the process so explicitly.
A science-based approach, such as systemic functional linguistics and semiotics, offers a much more logical solution. Rather than treating translation as an act of balancing Forms, it recognizes language as a system shaped by social and functional context.
Beyond the single case study of changing all contracts to agreements, I frequently see translators in very high-end financial translation environments, such as those in Singapore or London, producing translations that “look nice” but nonetheless have little or nothing to do with the source document they purport to represent.
Learnings for the Average Legal Translator
An average translator attempting to do adequate, modern translation work will have great difficulty unless they critically examine their own cultural beliefs and the traditional methodological underpinnings of their work. In Chinese-to-English translation, this means replacing the “Faith, Expression, Elegance” (Xin Da Ya) theory with a contemporary social semiotics approach. Instead of relying on balancing and trade-offs, knowledge, analysis, and precision should take priority.
