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Out of the Fly-Bottle: Conceptual Confusions in Multilingual Legislation

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Abstract

Conceptual confusions permeate all forms of intellectual pursuit. Many have contended that multilingual legislation, i.e., one law enacted in different languages, is unviable when carried out by means of translation. But not many have realized that the same would also be true of drafting if their contention could be justified. My involvement in the translation of Hong Kong laws into Chinese in the run-up to 1997 exposed me to a whole world of myths and misconceptions about legal translation arising from our failure to command a clear view of the workings of language. Over the years I have endeavoured to come to grips with the problems inherent in legal translation, showing that the arguments against the possibility of exact translation, against the possibility of achieving equivalence between different language texts of the law, and against the possibility of bridging the conceptual gap between legal terminologies in different languages, are all ill-grounded and misguided. There are indeed enormous difficulties in drafting and translating multilingual law, but they are essentially of a technical nature, by no means theoretically irresolvable. The viability of multilingual legislation is simply grounded in our innate communicative intention to use signs and symbols to convey meaning. As language users, we are capable of making language work for us for any particular purpose. Just as we can translate the rules of chess from one language to another whereby players speaking different languages can play the same game called “chess”, we don’t see why we can’t do the same with multilingual legislation. The door has always been open!

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Notes

  1. See Malcolm [27], 51.

  2. See Wittgenstein [49], §309.

  3. See Vinay and Darbelnet [45].

  4. See Jakobson [20] in Venuti [21], 139.

  5. See Catford [4], 36.

  6. See Nida [28], 5.

  7. See Koller [23].

  8. See Baker [2], 17–26.

  9. See Pym [30–32].

  10. See Snell-Hornby [42], 22.

  11. See Sandrini [38], Sarcevic [39], 230–44, and De Groot [12].

  12. See Hart [17].

  13. See Posner [29], vii.

  14. See Bates [3].

  15. See Tan [44].

  16. Doczekalska [13], 339.

  17. See Correia [6], 40.

  18. See Wagner [46], 62.

  19. For a more detailed discussion on the fallacies of some of such arguments, see Roebuck and Sin [36], 195–201.

  20. A recent version is “Parting is such tweet sorrow” with reference to students’ graduation tweets.

  21. See Reed [35], 80.

  22. See De Groot [12], 424.

  23. For examples of untranslatable legal concepts, see Sin and Roebuck [39], 242–244 and Emma Wagner [47], 62–65.

  24. See Wittgenstein [49], §129.

  25. See Doczekalska [13], 355.

  26. See Wagner [46], 2.

  27. See Doczekalska [13], 355.

  28. See Correia [5], 40.

  29. See Robinson [37], 9. The monograph, which requested by the European Parliament’s Legal Affairs Committee, is the most updated and detailed account of the drafting process of EU legislation.

  30. See Waisman [48], 51.

    Once a court interpreter myself, I had to translate cautioned statements of prisoners many of whom were not well educated. The greatest difficulty in translating the originals of such statements was how not to improve on them. Yet my English translations often turned out to be much better written. So we easily forget that there are originals which are not great works of art.

  31. See Ravell [34], 1098.

  32. See the Discussion Paper on the law in Chinese of the Attorney General of Hong Kong [1], 7.

  33. For a detailed account of the translation project, see Sin [41], 197–199.

  34. For instance, in English law the rent a tenant pays to the landlord during a tenancy will become “mesne profit” after the tenancy ends. It is just common sense in law that what something is varies with the legal rule that defines it. .

  35. It must be noted that Doczekalska, who first presented the paradox as if it were a real one, later came up with very much the same analysis that clarifies the alleged incompatibility between translation and equal authenticity. She said, “[F[rom a legal standpoint, it is not the way of creating language versions that is important, but their authentication… Accordingly, the method of their drafting does not matter for their authentication and legal force as long as they are authenticated in the prescribed way.” See Doczekalska [13], 358–9. To avoid misunderstanding of her position, she should have prefixed all the paradoxes with qualification such as “alleged”, “so-called”, or “apparent”.

  36. See Hermans [18], 9–10.

  37. See Sullivan [43], 1006.

  38. Emma Wagner seemed to have confused the two identities of translated texts of binding instruments in EU and described the authenticated texts as “equivalent originals” created by “a feat of legal magic which defies all logic.” See Wagner [47], 2. Applying translation terms to the authenticated texts of the law simply commits a categorical mistake.

  39. See [26], The Legislative Council Paper No. CB(2)1699/07-08(06).

  40. See Cosmai [6], 1. This was presumably a conference paper which appears on the internet without any information of the source. In the paper Cosmai, an administrator of Economic and Social Committee of the European Communities, Brussels, attempts to resolve the conflict between those who contends that equality of all language versions of EU law is a theoretical fiction and those who maintain that every language version of EU law is derived from several of the other texts and hence is on equal footing with all the other texts. What is noteworthy is his criticism of EU’s turning a blind eye to the involvement of translation in the legislative process, which has given rise to unnecessary political disputes among member states over what are in essence simple linguistic issues.

  41. See Cosmai [6], 2.

  42. See Covacs [7] in Beaupré [7], 174–5.

  43. Ibid., 175.

  44. See Ravell [32], 34–7 and [33], 1091–9.

  45. See Ravell [32], 36.

  46. See Sarcevic [39], 95–112.

  47. See [14], 34.

  48. During the early stage of the bilingual laws project in Hong Kong, in addition to the translation of existing ordinances in English into Chinese, new bills were jointly drafted in both English and Chinese. As a text run, the two drafted texts were submitted to the Legislative Council but only the English was intended to be enacted, with the Chinese text serving as a “dummy” for councilors to debate and advise what needed to be done to further the development of bilingual legislation. The first bill for the test run was the Weights and Measures Bill submitted to the Legislative Council for first reading on 10 June 1987 (see Official Report of Proceedings of Hong Kong Legislative Council 10 June 1987). Thus, although both texts were prepared by drafting, the fact that one was authenticated and the other not clearly indicate that there is no necessary connection between drafting and authentication.

  49. In this connection Pym (see [31], 271) personifies language by saying the creation of equivalence is what languages can do. As a manner of speaking, this seems innocent enough. But he is saying this in the context of contrasting two kinds of equivalence, namely, pre-existing, natural equivalence, i.e., “what languages ideally do prior to translation” (Ibid.) as opposed to “directional equivalence”, i.e., what languages can do after the intervention of the translator. Whether there is pre-existing equivalence independent of human mapping (intervention) is of course arguable. Later on in the same paper he says, “Some kinds of equivalence refer to what is done in a language prior to the intervention of the translator (hence the illusion of the natural)” (Ibid., 278). Does he mean by the remark in brackets that pre-existing natural equivalence is an illusion? So it is not at all clear whether he makes an “ontological commitment” to natural equivalence. But this is not the point we want to make here. What we want to show is that the contrast between the two kinds of equivalence is based on the assumption that languages can produce natural equivalence prior to the intervention of the translator, or for that matter, any form of human intervention. What makes this kind of equivalence possible is the personification of language.

  50. See Croxen [8], 2.

  51. See Koskinen [24], 54.

  52. The definition has a second part which doesn’t concern us. It states that the equivalent term is “capable of functioning as a preferred indexing term in the target language”. The second part of the definition is concerned with the compilation of interlingual thesauri.

  53. See De Groot [12], 424.

  54. See De Groot [10], 280.

  55. It is worth noting that on De Groot’s scale of difficulty of legal translation, the law translation project of Hong Kong apparently falls into the category of “most difficult” as it involved two hardly related legal languages, namely, English and Chinese, and two very different legal systems, namely, English common law and Chinese civil law. But in light of another criterion he puts forward, the law translation project should be considered relatively easy in that it was “translating within a bilingual or multilingual legal system” where full equivalence between SL and TL with respect to the legal concepts is logically possible because the terms all refer to the same legal system (see [12], 424). So the same translation project is both most difficult and relatively easy. This clearly shows that the assumption on which the scale is based is totally problematic.

  56. See De Groot [11], 796–7.

  57. See Sin and Roebuck [40], 249–250.

  58. See Frandberg [16] on Legal Concepts.

  59. See Pym [31], 280.

  60. Fram-cohen maintains that conceptual equivalence is impossible in theory but possible in practice (see [15]). This is tantamount to saying that trisecting an angle with a ruler and a compass is impossible in theory but possible in practice. If we want to find something that truly defies logic, this is it.

  61. See Pym [31], 280.

  62. See Sin and Roebuck [40], 245–7.

  63. Just to give an example out of many of such cases. When the Legislative Council examined the Chinese text of the Weights and Measures Bill for a test run on 8 July 1987 (see [19]), one of the councilors commented:

    Sir, to the Chinese version, a preliminary study shows that the Chinese text very closely reflects that of the English version. However, the Chinese text is by no means perfect and more concerted effort has to be directed towards the linguistic aspect. One simple example is the definition of ‘premises’—

    • English text—‘premises’ means any building, place, stall, vehicle or vessel.

      Chinese text—‘樓宇”指任何建築物, 場所, 攤檔, 車輛或船隻.

    • (In Pinyin: ‘louyu’ zhi renhe jianzuwu, tandang, cheliang huo chuanzhi)

    Obviously, the English text is perfectly acceptable, but the Chinese text has raised quite a few eyebrows. It is difficult to envisage that a building could mean a vehicle or a vessel. Sir, we shall have to search for a better translation of the word ‘premises’. There are other examples, but I shall not bother Members with details in my speech.

    While it is true that the Chinese word “louyu” means “house’ or “housing apartment” and does not normally include a vehicle or vessel, it must be noted that this also applies to the English word “premises” which means in law “house”, “land”, or “tenement” and does not normally include a vehicle or vessel either. This is allowable as it is a definitional stipulation in law. So if the councilor had looked at the English text more closely, he would have seen that the Chinese translation was an accurate reflection of its English counterpart. The choice of “louyu” was made by the translation team after careful deliberation.

    For more of such cases, see Lai and Li [25], 21–34.

  64. See Sin [41].

  65. See Hermans [18], 9.

  66. See Kaiser [22], 253–4.

  67. Even if we conceded that causation is not confined to things physical, as contended by Donald Davidson that reasons are causes of intentional actions, i.e., reasons are rational grounds for giving causal explanations of intentional actions, still it would not make sense to say that the language versions have the same meaning because they have been declared equally authentic. Rather, as has been shown, the sameness of meaning between the language versions has to be established before they are submitted to the legislature for authentication. Authentication will not be granted if discrepancy in meaning between them is detected. Hence, if a reason must be given for authentication, it is the legislature’s being satisfied that there is no discrepancy in meaning between the proposed language versions, not the equality of their status, which they don’t have before authentication. For Davidson’s well-known thesis that reasons are causes, see [9].

  68. See Note 62 above.

  69. In denouncing equivalence as an illusion, Koskinen compares EU translators to the seventy-two Greek rabbis who “translated the Old Testament in isolated cells” and “guided by divine inspiration,…they all produced identical translations”. See Koskinen [24], 54.

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    King Kui Sin

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Sin, K.K. Out of the Fly-Bottle: Conceptual Confusions in Multilingual Legislation. Int J Semiot Law 26, 927–951 (2013). https://doi.org/10.1007/s11196-013-9313-1

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