Legal translation is known for its emphasis on so-called literalness, but in the case of legal memoranda, this can result in lost intelligibility. The problem arises because legal memoranda inherently have a great deal of non-factual, non-statutory language included, the semantic purpose of which is to advise and counsel clients to make good decisions. By its nature, this language describes a thought process and is persuasive in nature. However, when translated literally, the language loses all meaning and function and renders the legal advice valueless. In this article, we’ll describe how to apply linguistics analysis to translate legal memos intelligibly.
Literalness Not (Always) Desired
Legal translators often assume that absolute literalness is always desired when translating for the legal industry, but this is not the case and could even confuse clients into legal non-compliance. When going back to basic linguistics theory and analyzing the various kinds of legal documents and what they comprise, one will notice that there is a major set of linguistic differences between contracts and statutes on the one hand, and legal letters and memoranda on the other.
For a contract, the interpersonal metafunction surrounding the text typically encompasses three parties. For example, a purchase and sale agreement includes the Purchaser, Seller, and the Judge, who referees how the contract will be interpreted. In contrast, the interpersonal relationship in a legal memorandum is really that between Counsel and Client. The textual metafunction is also different; a contract seeks to establish what is considered “private law,” whereas a memorandum is a conversation between attorney and client.
Thus, the translation of legal memoranda and letters, where some level of persuasiveness and strategic thinking exists, may call for appropriately adapting some of the content of the memorandum in line with traditional Skopos Theory. In the case of a legal memorandum, the writer’s purpose is to advise the client about the law. The majority of the semantics will overlap exactly with regulatory and judicial opinion material since the lawyer is indeed finding the applicable law and presenting it to the client. However, much of the semantics is derived from language used in logical thinking, analysis, advising, and persuading rather than the law. In this respect, the semantics in the two languages will not necessarily overlap and may involve metaphors or differences totally irrelevant to the work being done. Contrast this with a statute’s phrasing, where the reasoning process determines the outcome.
A good example of this is the English expression “technically correct,” which is used quite frequently in various contexts but conflicts with the analytical process dominating Chinese thinking for the past 40 years. Due to the needs of the Reform & Opening Up era, including rapidly transitioning hundreds of millions of farmers to industry, the educational system and workplace environment in China became dominated by standards largely adopted from successful economies. As was the story during US industrialization, discouraging workers from coming up with DIY solutions and instead following an engineer’s optimized standard was essential to the economy’s success. Moreover, this process was compressed into a very short time frame, with the industrialization of the agricultural workforce having a target timespan of less than a decade.
To pull off this feat of economic transformation, Chinese educational and work systems garnered buy-in from individuals by emphasizing “standard answers” rather than “correct” or “technical” answers. Independent thinking was largely unnecessary for most industrial applications until the 2020s. Thus, Chinese readers are more familiar with “standard answers” and the occasional “correct answer,” whereas American readers are accustomed to “correct answers” and “technically correct answers.” A good example of this is the US Supreme Court case Plyler v. Doe, where it was technically correct that the Constitution permitted Texas to effectuate certain human rights violations against immigrant children. Nonetheless, the court said “no.”
Another case I remember from behind the prosecution bench involved a decorated war veteran whose newly discovered brain damage put him on the wrong side of a strict liability offense. In this case, the lead prosecutor said that while it was technically correct that there was criminal culpability, a jury would not agree.
I imagine prosecutors in China are talking about the “standard answers” from their legal textbooks and about what they feel is right in their hearts. Nonetheless, these are two totally different analytical approaches and ways of thinking; not every technically correct answer is a standardized answer, and many standardized answers are technically incorrect. The recent television show 3 Body Problem even has a scene where a technically correct answer is rejected because it contravenes the standard answer about how the sun works. Nonetheless, in the case of translating a memorandum for use by an executive, the executive can understand the situation between de jure and de facto governance situations without the translator needing to try to find an exact fit for the phrase “technically correct.” Suppose a writer of an original English memorandum wants to say that something is “technically correct” but, in actuality, the situation is different. What should the translator do?
The first thing I might mention for the translator is what not to do, and that is to not simply rely on received wisdom about what the standard or generally accepted translation for the phrase is. One can indeed find very literal translations of words like “technically correct” throughout the media. For example, one can see a People’s Daily article discussing political correctness versus technical correctness in the context of international relations, particularly where interpreter-mediated transnational interactions are involved (要兼顾政治正确和技术正确，要具备宽广而深刻的国际视野，最好具备国外生活经历).
The audience may not necessarily understand the meaning in such contexts, even though diplomats reportedly understand it; at least many typical workers reading the text seem to struggle with explaining the intended meaning. Many diplomats themselves often have difficulty explaining what they interpret phrases to mean once rendered into Mandarin. For example, when President Biden met President Xi, the Chinese delegation reportedly heard Biden interpreted as saying, “This is my car, and everyone calls my car a wild animal.” The Chinese delegation, flashing their “diplomatic smiles,” clearly had no idea what Biden was interpreted as saying; and someone should really train President Biden on how to use an interpreter because the phrase “we call this car ‘the beast’” is a problem I have seen top-selling literature translators spend an hour solving—yet the interpreter here was given maybe five seconds. While these interpreted comments do get into the media and become part of a tortured conversation, they are not for emulation and should instead be used to warn the public about how dire the international relations situation is.
Now that we know what not to do, we should consider what to do with this “technically correct” language. In doing so, I urge starting with a basic linguistic analysis of the language functions, including the interpersonal, textual, and ideational functions of the text.
At its core, the ideational function of the expression is to describe the difference between how a rule or standard goes and how things really work. In English, this distinction is reached by looking at the technical procedure used to achieve the answer, whereas Chinese writers look more at talking about these problems in terms of strictness or literalness, having a shorter history with technical processes.
The difference has a lot to do with history. The idea of technical correctness emerged during Britain’s Industrial Revolution in the 1700s, but as a figure of speech, it only really took off in the late 19th century—after several decades of broad-based popular involvement with engineering and manufacturing. China was mostly agrarian until the 1990s and simply didn’t share that frame of experience.
However, this shared frame is not necessary if we consider the interpersonal and textual functions of “technically correct” language. The purpose of a memorandum involves two key elements: providing advice and addressing the law. The language about law is very strict, but the way you advise someone and break difficult issues down can be accomplished through many similar avenues.
The interpersonal function between counselor and client is one where the counselor conveys knowledge through structured language to the client. A lot of information is passed on, including professional judgment, heuristics, and a weighing of what’s important and what’s not. The semantics related to giving advice and recommendations arguably constitute language with a persuasive function, rather than a descriptive or informational function; their purpose is to guide and persuade.
Many translators attempting to localize the expression in this context will typically go too far and substitute an alternative analysis. For example, where it may be said that “it’s not technically correct,” they may go too far and say “in order to avoid…” but this is not part of the original advice. While it is true that most localization being done only has a vague and general linguistic relationship to the product being localized, the kind of approach useful for selling a product is not useful for giving legal advice. In this case, looking at available candidates in the target language having the same language functions and being adequate for achieving those functions is a better approach than getting overly creative.
Chinese does, in fact, have a number of concepts and expressions that can refer to distinguishing between the letter of the law and what happens in actual practice. For example, one could say “On the face (字面) of the contract, the provision says…” or use an expression like “Strictly speaking, the disclosures are accurate, but a typical investor would be misled” (严格), both of which can convey the message accurately. More importantly, these expressions achieve the interpersonal function of the language while having an ideational fit.
In one example involving a California contract under the Trident Center opinion, the client is advised that the technical legal meaning of the contract may be trumped by California’s expansive extraneous evidence rule. Thus, the client can be persuaded to avoid unreasonably abusing the contract. In another example involving securities disclosures to investors, the client could be advised that, while literal semantics are correct, the way the disclosures describe the underlying business of the securities could nonetheless raise securities fraud concerns because of their capacity for confusion.
