Legal translators working in the English-to-Chinese language pair often distort basic reality, leading to translations that refer to things that don’t exist — a result rejected by modern social construction theory, also known as constructionism. This particular practice seems to be rooted in the outdated Xin Da Ya theory, which advocates the very same pseudoscientific approaches to translation that birthed the Chinglish phenomenon. Instead, what these translators should really be doing is applying sociology’s social construction theory, which describes how society socially constructs a shared view of reality. By doing so, legal translators can avoid translating a document in a way that refers to things that don’t occur in reality.
Absurdism in Wills & Estates
The violation of basic social construction theory can be exemplified in an example involving the translation of an English-language will for a Chinese native speaker drafted by an English native-speaking lawyer on their behalf. Some clauses in the will might refer to moving into a property at a specific location, for example, “In August, I moved into my Hyde Park property.” The word “property” in this context is used to denote a house or home, which can include things like condominiums. In the translation, however, the word fangchan (‘房产‘) was used, which means something different. Rather than referring to an abode you can live in, fangchan refers to the abstract idea of a real property asset.
Even if you don’t speak Chinese, you can appreciate that the idea of a person moving into a fangchan is absurd, because moving into a “real property asset”’ does not make any sense. If so, you are probably an unwitting participant in the “social construction” of reality. The idea of an asset is an abstract financial concept, and we don’t describe moving into a condominium by saying we move into an asset. Nonetheless, this translator was deeply convinced that this was the most appropriate translation because Chinese people don’t say things like “I moved into my Shanghai home” with that very high level of specificity. China is, after all, a high-context culture and this expression would be unwieldy and unusual. Most English-to-Chinese translations are actually riddled with these so-called “weird” translations that put words together in bizarre ways, and this can have and has had severe consequences in the field of legal translation. The main reason for this has to do with a major sociological discovery of the 20th century: social construction theory.
Basics of Social Construction Theory
Social constructionism is the idea that our perception of reality is socially constructed rather than inherent or objective. This idea has been around for centuries, but it wasn’t until the 20th century that it was named and sociologists began to study it in depth. Since Chinese-English translation aims to accurately communicate things happening in a very different society and culture, translators need to have an understanding of social construction theory as proposed by leading sociologists.
Social constructionism has its roots in the work of prominent sociologists, particularly Peter Berger and Thomas Luckmann. In their influential 1966 book, “The Social Construction of Reality,” Berger and Luckmann laid the groundwork for the development of social constructionism. They introduced the idea that reality is not objective or fixed, rather it is a product of our interactions with one another and argued that our perceptions of reality are socially constructed and, therefore, reality is constantly being shaped and reshaped by our interactions.
Berger and Luckmann’s social construction theory also emphasizes the importance of language in shaping our understanding of reality. They argued that language is an important tool for constructing our understanding of the world, meaning it can be used to shape our perceptions and understanding of reality in a variety of ways. For example, language can be used to create shared meanings. In a previous article, I warned against linguistic universals that lead to bad Chinese-English translations. In that respect, you can understand how a social reality created by the use of one language may not be shared by any particular word in a second language and therefore resists direct word-for-word translation.
Sociologists use social constructionism to understand how our interactions with one another shape our understanding of the world, and how these interactions can change our perceptions of reality. One of the most famous examples of social constructionism is the concept of race. Sociologists have long argued that race is a social construct and not an inherent or objective reality. I.e., race is a product of our interactions. In Chinese-English translation, a good example of this is how Chinese translations often refer to white people as “foreigners” due to the social construction of whiteness as foreignness, but the movie Everything Everywhere All at Once for American audiences translates the same as “white” girl. A video by a popular YouTuber complains about being called a “foreigner” as he walks around an American Chinatown, which creates a logical contradiction of terms in itself. Conversely, black YouTubers complain that they go around China being called “black guy,” and not “foreigner.”
Liu Cixin’s science fiction story exploring the social construction of foreignness as whiteness imagines that China discovered the Americas and sailed all the way to Europe. In Liu Cixin’s excellent exploration of sociology, Chinese ethnicity is now constructed as foreignness and the Chinese are called foreigners in their own land, for it was Zheng He and his crew who were the yangren—people from over the Ocean.
These sociologists also use social constructionism to understand how the law is created and how it is interpreted. Social construction theory tells us that the legal system is a product of our culture and social environment, rather than an objective force. It reveals to us that law is something created over time and shaped by the values, beliefs, and interests of those in power. It also tells us that the law is constantly changing as different perspectives and interests become more prominent. In the same way, sociologists argue that the legal system is not a monolithic entity, but rather a complex system of rules, norms, and beliefs that have been shaped by those who created it. We can see that the law is not a universal concept, but rather a set of rules and regulations that have been created over time to serve a certain purpose.
Finally, social construction researchers help us understand how the law is interpreted and applied. They demonstrate how the interpretation of the law is far from objective, contrary to what we learned from our law school casebooks, and that it is shaped by the biases and interests of those in power. This helps us to understand why certain laws may be interpreted differently by different people, and why certain laws may be enforced in certain ways. This means that the laws in a particular society may be very different from the laws in another society, as the values and beliefs of the people in each society will be unique. This has important implications for the legal system, as it suggests that the laws in one society may not be applicable in another society due to the different values and beliefs of the people in each society.
Linguistic Norms Competing with Socially Constructed Reality
In line with the above, a basic principle that Chinese legal translators are irresponsibly disregarding, which I want to make very clear here, is that the output translation cannot violate the basic social construction of reality in the reader’s culture. Nonetheless, legal translators in China do this all the time. Why? My basic theory is that these translators had little or no contact with foreign cultures outside of memorizing word lists, and therefore do not even have a concept that the foreign peoples have an ordinary culture that accomplishes ordinary things. In the case study covered earlier in the article, the translator sees the foreign culture as literally saying that people are moving into abstract concepts like “assets” in describing their daily life.
What makes this example particularly absurd is that the speaker was actually a Chinese native, who was instructed to speak in a manner ideal for English law. The Chinese speaker would use another word “property” (fangzi), which can refer to a house or condominium, to describe moving from place to place. However, the memorized word lists for fangzi say this must be a “house” and is not a “property,” thus those translators who have never encountered foreign cultures (most translators) cannot tell the difference.
The translator under review was aware of this tension but nonetheless decided to use the absurd phrase because, in Chinese communication norms, one would not say “I moved to my London home” with such a grammatical construction. The basic rules of Chinese grammar do permit this, but the conventional manner of speaking makes this quite unusual, and actually rather like the highly specific way in which English and German natives speak Chinese. For a typical reader, it would likely trigger a brain response indicating a rule had been violated (i.e., the N400), but a lawyer or judge reading it closely would clearly understand the intended meaning. A construction that violates the basic understanding of reality, however, is not acceptable and would force the reader to guess the “true” meaning. In this case, they would have to guess that “asset” = “house.”
Some other solutions are available to preserve the basic understanding of reality shown in a document. Chinese legal translators applying the Xin Da Ya theory’s “faithfulness” requirement feel that being faithful to a document means following its syntax exactly. However, doing so is usually discouraged in modern translation approaches. The translator could parse a phrase like “my Hyde Park property” to “my property in Hyde Park” or even “my property, which is in Hyde Park.” The syntactic words “in” and “which” serve no other purpose than to provide a structure for the symbols referring to things in reality. Saying “Hyde Park Property” with this syntax means literally the property is “in” Hyde Park; if the Chinese sentence requires a preposition or other syntactic words in order to conform to linguistic norms, inserting them does not reduce the faithfulness of the translation. And it is a lot better than violating the basic rules of reality.
In conclusion, legal translators working from English to Chinese need to respect the basic beliefs about reality that exist as a result of the reader’s social constructions. Failing to do so, and instead distorting reality in the way advocated by contemporary Xin Da Ya theory, could have severe legal consequences for clients relying on the work.
