Application of House’s Model for Translation Quality Assessment in Assessing the English Version of the Vietnam’s Criminal Procedure Code no. 19/2003/QH11

VIETNAM NATIONAL UNIVERSITY, HA NOI UNIVERSITY OF LANGUAGES AND INTERNATIONAL STUDIES FACULTY OF POST-GRADUATE STUDIES ********************** MAI VĂN TRỌNG APPLICATION OF HOUSE’S MODEL

VIETNAM NATIONAL UNIVERSITY, HA NOI UNIVERSITY OF LANGUAGES AND INTERNATIONAL STUDIES

FACULTY OF POST-GRADUATE STUDIES

**********************

MAI VĂN TRỌNG

APPLICATION OF HOUSE’S MODEL FOR TRANSLATION

QUALITY ASSESSMENT IN ASSESSING THE ENGLISH

VERSION OF THE VIETNAM’S CRIMINAL PROCEDURE

CODE NO 19/2003/QH11

(Áp dụng mô hình đánh giá chất lượng bản dịch của House vào việc

đánh giá bản dịch tiếng Anh của Bộ luật Tố tụng Hình sự số

19/2003/QH11)

M.A Major Program Thesis

Field: English linguistics Code: 60220201

VIETNAM NATIONAL UNIVERSITY, HA NOI UNIVERSITY OF LANGUAGES AND INTERNATIONAL STUDIES

FACULTY OF POST-GRADUATE STUDIES

**********************

MAI VĂN TRỌNG

APPLICATION OF HOUSE’S MODEL FOR TRANSLATION

QUALITY ASSESSMENT IN ASSESSING THE ENGLISH

VERSION OF THE VIETNAM’S CRIMINAL PROCEDURE

CODE NO 19/2003/QH11

(Áp dụng mô hình đánh giá chất lượng bản dịch của House vào việc

đánh giá bản dịch tiếng Anh của Bộ luật Tố tụng Hình sự số

19/2003/QH11)

M.A Major Program Thesis

Field: English linguistics Code: 60220201 Supervisor : Assoc Prof Dr LÊ HÙNG TIẾN

DECLARATION

I hereby certify my authority of the research submitted entitled

“Application of House’s model for translation quality assessment in assessing

the English version of the Vietnam’s Criminal Procedure Code No 19/2003/QH11” in partial fulfillment of the requirements for the degree of

Master of Arts

Hanoi, 06 th October, 2014

Mai Văn Trọng

ACKNOWLEDGEMENT First and foremost, my boundless and most sincere gratitude is due to

my beloved teacher, Assoc Prof Lê Hùng Tiến, Ph.D, Dean of the Faculty of Post-Graduate Studies, ULIS for his insightful editorial skills and for truly guiding the track for this paper Whenever I lost track of thought, he pumped plentiful guidance and inspiration to my mind in anticipation of my successful study

I would like to take this once-in-life-time opportunity to thank my respectable ULIS teachers for their teaching, due assistance and kindness blessed on me during my last two-year

I cannot fully express my gratitude to my exceptional family who gave

me a love of life and to my friends who offered me a life of love

None of those mentioned, or anyone else, is responsible for my errors and omissions

Limitations and mistakes are surely inevitable in my study Therefore, I take hold of high regards for all the recommendations and suggestions from the readers

ABSTRACT This study aims at assessing the quality of the English translation of the Vietnamese Criminal Procedure Code Among various approaches to, criteria and models for translation quality assessment, House’s model is selected in this study because it comprises a comprehensive set of parameters for assessing functional and pragmatic equivalence of the translation text

The analysis of and comparison between the ST and TT has yielded significant results and implications for translating legal texts Accordingly, the TT is a “second original” or covert one; semantic translation method and text-normative equivalence type are suggested for the translation of such type

of texts However, the accurate interpretation of the Vietnamese provisions can be achieved mainly thanks to the ultimate command of both SL and TL

LIST OF ABBREVIATIONS

The schema for analyzing and comparing original and translation texts……… 32

TABLE OF CONTENTS

DECLARATION i

ACKNOWLEDGEMENT ii

ABSTRACT iii

LIST OF ABBREVIATIONS iv

LIST OF ABBREVIATIONS v

TABLE OF CONTENTS vi

INTRODUCTION 1

1 Rationale for the study 1

2 Significance of the study 2

3 Scope and objectives of the study 3

3.1 Scope of the study 3

3.2 Objectives of the study 3

3.3 Research questions 4

4 Research methods 4

5 Overview of the study 5

CHAPTER 1: LITERATURE REVIEW 6

1.1 Previous studies on legal language 6

1.2 Definition of translation 6

1.3 Approaches to translation quality assessment 9

1.3.1 Anecdotal, biographical and neo-hermeneutic approaches to judging translation quality 10

1.3.2 Response-oriented, behavioural approaches to evaluating translations 11

1.3.3 Text and discourse-based approaches 12

1.4 Linguistic features of English legal language 16

1.4.1 Vocabulary 16

1.4.2 Syntax 18

1.4.3 Other properties of law language 23

1.5 Linguistic features of Vietnamese legal language 24

1.5.1 Vocabulary 24

1.5.2 Syntax 26

1.5.3 Other properties of legal language 27

1.6 Conclusion 28

CHAPTER 2: METHODOLOGY 29

2.1 House’s model for translation quality assessment 29

2.2 Operation of the model 32

2.3 Two Types of Translation: Overt and Covert Translation 37

CHAPTER 3: TRANSLATION QUALITY ASSESSMENT OF SELECTED TEXT 39

3.1 Analysis of Source Text 39

3.2 Statement of function 55

CHAPTER 4: FINDINGS AND DISCUSSION 57

4.1 Comparison of Target Text and Source Text 57

4.2 Statement of Quality 68

4.3 Quality of the translation 68

CONCLUSION 71

1 Recapitulation 71

2 Concluding remarks 71

3 Implications for translating Vietnamese legal documents into English 73

4 Suggestions for further studies 76

REFERENCES 78 APPENDIX A: VIETNAMESE VERSION OF THE SELECTED TEXT I APPENDIX B ENGLISH VERSION OF THE SELECTED TEXT XIII

INTRODUCTION

1 Rationale for the study

Vietnam has integrated into the common trends of the world in both scope and depth As a result, opportunities for our country to develop and promote its image in the international area are numerous, whereas enormous challenges posed to the public security forces are unable to be fought off overnight, but it is required to initiate a well- planned roadmap including the finalization of our legal system As a matter of fact, laws constitute one of the sharp and effective instruments to prevent and combat crimes Vietnam is a developing country which is lagged behind developed ones in terms of science, technology, and legal and administrative system perfection as well Cooperation among law enforcement agencies worldwide, therefore, is in urgent need to check the increasing types of crime International extradition and legal assistance are part of a step- forward finalization of our legal system towards a cumber-free administration apparatus which is mainly inherited from selective acceptance of and reference to other legal models of developed countries Equally important, Vietnam’s codes or laws should be analyzed and made comparison with those of other nations in the light of legal perspective

To that end, Vietnamese - English translation of such codes or laws is of paramount significance, which somehow facilitates international legal experts’ further contribution of their comments on or recommendations to our adopted laws or bills Furthermore, upon the settlement of criminal cases, international law enforcement officers are equipped with certain body of knowledge related to our procedures in crime investigation, trial, and execution English is an accepted contemporary international language; consequently, an increasing number of documents in other languages are

being translated into English with no exception granted to the legal field The quality of such translations has gained untold attention and put under much discussion Translation theorists have their own initiated criteria for translation quality assessment, with Julian House, a German linguist, as an outstanding representative who worked out her model for translation quality assessment

In the hope of effective international integration in legal field, Vietnam has ratified and amended a mixed variety of laws as an objective requirement

In parallel with such laws’ efficiency in Vietnam’s territory, better understanding should be bestowed upon foreign law enforcement offices via reliable English versions of these laws in the fight against crimes Though these English versions do not have legal value, they do facilitate the process

of understanding and observing our laws by our counterparts A good translation of a legal document will mitigate misinterpretations and misapplications, facilitating the settlement of criminal cases with foreign-related elements

From the practice and status quo of the crime prevention and suppression, our enacted law, the Vietnam’s Criminal Procedure Code no 19/2003/QH11, is considered the most effective tool for international cooperation namely international extradition, investigation, and trail of transnational organized criminals The Code has been translated into English

by the National Assembly Office An assessment of the English version of the Code is thus of practical requirements

2 Significance of the study

The study will shed light on the features of the language of both Vietnamese and English used in legal documents, thus making due

contribution to the acquisition of the distinctive features by students and operational services

The results of this study will help test the quality of the English translation of the Criminal Procedure Code 2003 of Vietnam under the model developed by House (1997), and suggest any timely changes should there be

to limit avoidable misunderstandings by foreign law enforcement officers in interpreting the law

Besides, the study will also propose some suggestions concerning the translation of Vietnamese authoritative legal documents into English More important, the comparison and contrast between the use of the two languages used in the two versions are likely to function as references for students and officers of the Ministry of Public Security for better translating Memoranda of Understanding or Agreements between our legal bodies and their counterparts

3 Scope and objectives of the study

3.1 Scope of the study

The Criminal Procedure Code 2003 of Vietnam is composed of 346 articles, divided into 37 chapters A study of the entire document is therefore beyond the needed requirements of the paper Therefore, the paper will put

chapter IX only under analysis, with the title of which being “Những quy định

chung về điều tra” There are sixteen articles in this chapter, from Article 110

to Article 125

3.2 Objectives of the study

The study is aimed at:

- Exploring the functional and pragmatic mismatches resulted from the translation of the Vietnamese Criminal Code into English

- Identifying the type of the English translation of the Code according the model of translation quality assessment proposed by House

- Assessing the quality of the English translation of the Code in the light

of the distinctive features of legal text in the English language

3.3 Research questions

The study is aimed at finding answers to three following questions:

1 What are the functional and pragmatic mismatches between the source text and the target one?

2 Is the translation, according to House’s model, overt or covert?

3 To what extent does the English translation of the Code satisfy the requirements for translating a Vietnamese legal text into English?

4 Research methods

The paper is aimed at assessing the quality of the English translation of the Criminal Procedure Code of Vietnam Therefore, a set of parameters for assessment is of necessity Among the various criteria and models for translation quality assessment, House’s model is selected in this study because it is deemed to have a comprehensive set of parameters for assessing functional and pragmatic equivalence of the translation text Furthermore, as House argues, the model can be applied with a wide range of texts

In applying House’s model, a source text is first selected, then analyzed

to draw its textual profile along the eight situational dimensions and a statement of function of the ST will be made Similarly, a profile of the translation text will be come up with and compared with the ST’s under the same set of parameters to find out any possible mismatches before a statement

of quality can be drawn about the TT

5 Overview of the study

The paper is composed of three chapters, excluding the Introduction and Conclusion:

Chapter 1: Literature review

The first part of this chapter will first introduce some studies on legal language in Vietnam

The next two parts present some definitions of renowned scholars worldwide and discuss different approaches to translation quality assessment, respectively

Linguistic features of both Vietnamese and English are also under depth analysis and comparison in the last two parts

in-Chapter 2: Methodology

In this chapter, House’s model for translation quality assessment will

be introduced as the analytical framework and its operation model will also be interpreted for the follow-up application

Chapter 3: Translation quality assessment of selected text

The English translation of Chapter IX of the Code will be analyzed and assessed on the basis of the aforesaid analytical framework with the same set

of parameters for both ST and TT

Chapter 4: Findings and discussion

Findings about the quality of the translation text based on the application of the model will be discussed and the research questions will be answered

CHAPTER 1: LITERATURE REVIEW

1.1 Previous studies on legal language

Mellinkoff (1963) claims that legal language today is full of mannerisms that have found their way in gradually, over the course of centuries of law practice At first the purpose probably was a laudable one: to increase clarity, accuracy, and unambiguity The result, however, has been a style as “a wordy, unclear, pompous, and dull” Instead of resorting to short expressions, lawyers and law drafters build up long, unnecessarily specific lists of words

Van der and Nienaber’s (2002) hold that we experience difficulty in understanding the language of statutes because of the very nature of this language

In Vietnam, some linguistic authors such as Cù Đình Tú, Nguyễn Thái Hòa (1983) have studied some lexical and syntactic features of legal texts as a subtype of administration and public service style Lê Hùng Tiến (1999) made

a discourse analysis of legal text in Vietnamese contrasted with English More recently, Lương Tố Lan (2007) conducted an analysis on translation of law on investment

1.2 Definition of translation

Traditional view of translation

There are various definitions of translations proposed by different linguists and scholars in different perspectives

Translation in the pre-linguistic era concerned itself with the translating

of the classics in such a way as to result in two distinct but interrelated trends

of translation Translation, on the one hand, was considered an art The translation of literary work necessitated the translator to be well-articulated in literature so as the feeling of the work may be transformed to the TL This

emphasis laid on the effect of translation rather than the transfer of the form

of the SL has been the trademark of much of those translations that have as their prime concern the TL reader Moreover, such translations aimed at the enrichment of the native language rather than following the more rigid notions of "fidelity" (McGuire 1980: 44) The ultimate aim in this trend is

‘sense for sense’ rather than ‘word for word’ translation In this case, translation was considered as ‘art’, and the emphasis was on the transfer of the merit, the feeling, the sense of the original work (cf Finlay 1971, and McGuire 1980)

In Tytler's (1870) "Essay on the Principles of Translation", he said that

a good translation is that in which ‘the merit of the original work is so completely transfused into another language, as to be distinctly apprehended, and as strongly felt, by a native of the country to which that language belongs,

as it is by those who speak the language of the original work.’ (Finlay 1971: 22)

Translation, on the other hand, was considered as ‘second activity’, the ultimate aim was to transfer as closely as possible the words of the original work McGuire (1980) refers to Dante Gabriel Rossetti (1861) as saying that the major characteristic of a translator is self-denial and repression of his own creative impulses'

Linguistic definition of translation

Linguistic development seems to have a considerable impact on translation studies (see McGuire (1980) for a detailed account of the term

‘translation studies’) The underlying factor of many translation definitions has its roots in one of the developing theories of language Catford's definition relies, to a large extent, on comparative linguistics and systemic linguistics Translation according to Catford (1965:20) is “the replacement of textual

material in one language (SL) by equivalent textual material in another language (TL)” He criticises the view that regards the SL and the TL as having the same meaning

Nida's definition draws upon generative grammar, generative semantics, and most importantly on the pragmatic approach to language study Finally, Miler, Neubert, de Beaugrande, Reiss and Wilss's views on translation all have their roots in text linguistics, in which text not sentence is considered to be the ultimate unit of analysis

Post-linguistic Definitions of Translation

Newmark (1988: 5) defines translation as the rendering of "the meaning

of a text into another language in the way that the author intended the text,' not as could be understood and accepted by the reader In addition to the author's intention in his text, most of the other approaches focus on the receiver's apprehension of the intended meaning of the text

Casagrande (1954: 338) states that the attitudes and values, the experience and tradition of a people, inevitably become involved in the freight

of meaning carried by a language’ Therefore, he points out that one does not translates languages, one translates cultures Along these lines, definitions such as the following emerge:

1 Nida (1964: 19) holds that translating consists in producing in the receptor language the closest natural equivalent to the message of the source language, first in meaning and second in style.’

2 Wilss (1982:14) defines translation as follows: “Translating is a specific form of interlingua communication linked to linguistic acts and decisions.”

3 Seleskovitch (1977: 83) views translation as a movement from linguistic meaning to sense and from sense to expression of sense

Seleskovitch notes that in translation there always seems to be an attempt to

‘adjust the expression of sense to the linguistic meaning of the original language.’

4 Buhler (1979: 451) considers translation both a process and as a product As a process he views translation as "a communicative process, i.e the transfer of a message from source language to target language with the translator as mediating agent in a double function of receptor and source."

Most of the translation studies that underlie such definitions recognise the fact that a translation may lose or gain in relation to the original Though recognition of undertranslation or overtranslation is apparent in the works of such translation theorists, they are not included in their definitions

1.3 Approaches to translation quality assessment

House (1997) discusses three issues which she considers important in translation evaluation The first of them is the relationship between the source and target text The second is the relationship between texts (or features of the texts) and the persons involved with them (author, translator, recipients) as regards how they perceive the texts The third issue is the implications these relationships carry for determining which texts are translations and which belong to other texts These questions are the starting point for House’s (1997) model for translation quality assessment, and she considers these issues crucial to any approach dealing with translation evaluation (House 1997: 1-24) Three broad approaches to assessing the quality of a translation are discussed by the author within the framework of the above-mentioned questions

1.3.1 Anecdotal, biographical and neo-hermeneutic approaches to judging translation quality

Faithfulness to the original”, “retention of the original’s special flavour”, “preservation of the spirit of the source language”, etc., are typical anecdotal reflections made by generations of professional translators, poets, writers, philologists and philosophers who have passed evaluations of other writer’s texts intuitively, without basing them on any solid theoretical framework (House 1997) The quality of translation is thought to depend on the translator’s personal knowledge, intuition and artistic skills (Baker & Malmjaer 2001: 197) The idea of the neo-hermeneutic approach is that the process of understanding and interpreting the source text as well as the production of a translation are individual, creative acts that cannot be systematized or generalized (Routledge Encyclopedia of Translation Studies 2001: 197.) Since each instance of translation is unique, translation rules cannot be developed Furthermore, producing a good translation is seen possible only when the translator identifies entirely with the source text (House 1997) Although the neo-hermeneutic approach presents the notion of

a good translation, it does not explain in detail how translation quality can be assessed (Baker & Malmjaer 2001: 197)

“To sum up, most of the anecdotal approaches to the evaluation of translation emphasize the belief that a quality of a translation depends largely

on the translator’s subjective interpretation and transfer decisions, which are based on his linguistic and cultural intuitive knowledge and experience (ibid)

In concentrating on the individual translator’s process of comprehension, the original text, the translation process proper, the relation between original and translation, the expectations of the target text readers are not given the attention they deserve, and the problem of distinguishing

between a translation and various types of versions and adaptations is not even recognized” (ibid)

Since the anecdotal, biographical and neo-hermeneutic approaches do not offer precise guidelines for translation quality assessment, they are not considered suitable for the purposes of the present study

1.3.2 Response-oriented, behavioural approaches to evaluating translations

to the manner in which the receptors of the source text respond to the source text” (p.4) Nida operationalized this equivalence as comprising equal

“informativeness” and “intelligibility.” Assuming that it is true that a “good” translation should elicit a response equivalent to the response to its original,

we must immediately ask whether it is possible to measure an “equivalent response”, “let alone “informativeness” or “intelligibility” If these phenomena cannot be measured, it is useless to postulate them as criteria for translation evaluation Therefore, the level of dynamic equivalence is difficult

to measure

Nida and Taber (1969) have, for instance, proposed the use of a cloze technique, back-translation and read-aloud tests as viable tests for determining the level of dynamic equivalence in the target text Back-translation can be understood that the translation is tested by translating the target text back into source language In cloze technique, readers receive a translated text in which some of the words have been deleted and they are then asked to fill in the

gaps If the predictability of the text is high, it is easier to understand and it is more probable that the reader is able to guess the missing words correctly (House 1997: 4-5) There are two types of read-aloud tests In the first one, a translation is read aloud to a test subject, who will then explain the contents of the text to other persons In the second type of read-aloud test, test subjects read a translation aloud, and if they have any difficulties, it shows that those parts of the text contain translation problems (House 1997: 5)

The response-oriented approaches have been criticised for a number of deficiencies For example, they tend to ignore the source text, and thus they cannot tell anything about the relationship between the source and target text (House 1997: 5-6) The form and meaning of the translation are not properly compared with the source text Furthermore, tests which employ expert judges take unspecified criteria for granted, so there is no way of knowing what the criteria used in the assessment actually are (House 1997: 5-6) These approaches are also dismissed in the present study on the grounds that the criteria for the translation evaluation seem too vague, and the tests which have been suggested seem incomplete in that they do not take the source text into account Furthermore, the tests are somewhat difficult to conduct in the present circumstances

1.3.3 Text and discourse-based approaches

Literature-oriented approaches: Descriptive translation studies

This approach is oriented squarely towards the translation text: A translation is evaluated predominantly in terms of its forms and functions inside the system of the receiving culture and literature (cf Toury 1995) The idea is to first of all attempt to “neutrally” describe the characteristics of that text as they are perceived on the basis of native (receptor) culture members’ knowledge of comparable texts in the same genre For House, the basic

problem in this approach is “how one is to determine when a text is a translation and what criteria one is to use for evaluating a translation –but these are questions which a descriptive translation researcher would probably never ask, since he would typically start from the hypothesis that a translation belongs exclusively to the literary system of the target lingua culture” (ibid) The major problem with taking this approach is summarized by House in one question: “On which criteria are we to legitimately say that one text is a translation, another one not, and what exactly are the criteria for judging the merits and weaknesses of a given ‘translation’?”

Post-modernist and deconstructionist approaches

Theorists in this approach “undertake to unmask the unequal power relations that are reflected in the translation directions from and into English, and the promotion of further English language hegemony through one-sided translations from English and an ever decreasing number of foreign texts being translated into English” The critical post-modern approaches are most relevant in their attempts to find answers to the first question and also to the second one However, no answers are sought for the question of when a text is

a translation, and when a text belongs to a different textual operation”

Functionalistic, “skopos”-related approach

Probably the most famous of these approaches is Reiss (1971) and Reiss and Vermeer’s (1984) skopos theory Reiss and Vermeer (1984) claim that it is the “skopos”or purpose of a translation that is of overriding importance in judging a translation’s quality The translation is evaluated on the basis of how well it is adapted to the target culture norms and target language norms The way target culture norms are heeded or flouted by a translation is the crucial yardstick in evaluating a translation It is the translator or more frequently the translation brief he is given by the person(s)

commissioning the translation that decides on the function the translation is to fulfill in its new environment However, the notion of “function” is never made explicit, let alone operationalized in any satisfactory way How exactly one is to go about determining the (relative) equivalence and adequacy of a translation, let alone how exactly one is to go about determining the linguistic realization of the “skopos” of a translation, is not clear

Linguistically-oriented approaches

In these approaches the source text, its linguistic and textual structure and its meaning potential at various levels (including the level of context of situation in a systemic framework), is seen as the most important, indeed constitutive factor in translation House’s approach can be located within these linguistically-oriented approaches Reiss’ (1971) has been one of the most influential linguistic textual approaches She suggested that the most important invariant in translation is the text type to which the source text belongs, as it determines all subsequent choices a translator has to make She claims that different types of texts can be differentiated on the basis of Bühler’s three functions of language: content-oriented texts, e.g., news, scientific, technical texts, form-oriented texts, such as poems and literary journal, and conative texts, e.g., advertisements and texts of persuasive bent House criticizes this approach as Reiss “gives no clear indication as to how one should go about establishing language functions and the source text type Further, at what level of delicacy that can and should be done is left unexplained” (ibid)

The anecdotal, biographical and neo-hermeneutic approaches do not seem to provide any definite set of criteria for translation quality assessment, and neither do the response-oriented approaches Furthermore, the response-oriented approaches focus on target text and more or less forget the source

text The main problem with the text-based approaches is that in many cases the models for translation quality assessment have not been developed far enough, and they do not explicate how the assessment is carried out in practice However, among the text-based approaches, there are some models which present both the criteria for translation assessment and the way the model can be used in practice The model proposed by House (1997) may be

an appropriate one which is hoped to address such shortcomings Thus, House’s model for translation quality assessment (1997) is selected as the methodology which will be used in this study Though the above-discussed models provide practical insights into the nature of texts and their pivotal role

in translation, they do not, to the best of my knowledge, offer solid grounds for solving the problems of evaluating translations as finished products

In Vietnam, application model for translation quality assessment has just studied in some universities and professional training programs The theory and its application have been explored with some minor researches studying in University of Linguistics and International Studies More specially, Nguyen Thi Thanh Binh (2001) conducted “A study on the stylistic Equivalence between “The Old Man and the Sea” by Hemingway and Its Translated Versions in Vietnamese”; Nguyễn Thùy Yên (2007) with the research about “ Evaluating the translation of the guide book “Du lịch Hạ Long” based on J.House’s Approach In her research, the model developed by

J House is set up on the basis of pragmatic theories of language use It provides for the analysis of the linguistic-situational peculiarities of a given source text (ST) and its translation text (TT), a comparison of the two texts, and the resultant judgment of their relative match or mismatch The translation text “Ha Long Tourism” in a large extent, meets the requirements for equivalence of the source text and it has a function-consisting of an

ideational and interpersonal functional component – which is equivalent to the function of the ST Moreover, it is not just the matter of accuracy, the TT can convey the idea and concept of Ha Long and its beauty, at the same time, attract the attention of the readers, potential visitors or investors or businessmen to Ha Long That can help to boost tourism of Ha Long as the aim of the ST

1.4 Linguistic features of English legal language

1.4.1 Vocabulary

1.4.1.1 Technical terms

Law language contains a large number of technical terms which have acquired a specific and accurate legal meaning through centuries of jurisdiction For example 'ordinary court hours', arrestor', 'suspect', etc

 'ordinary court hours' means the hours from 9:00 until 16:00 on a court day

 'arrestor' means any person authorised under this Act to arrest or to assist in arresting a suspect; and

 'suspect' means any person in respect of whom an arrestor has or had a reasonable suspicion that such person is committing or has committed

an offence

1.4.1.2 Foreign words

English legal vocabulary abounds in foreign words, mostly loanwords

from French or Latin Some examples are laches, res judicata, prima facie,

mutatis mutandis; basis, registered, stated, part…

E.g A return by the person who served the summons that the service thereof has been effected in terms of paragraph (a), may, upon the failure of the person concerned to attend the relevant proceedings, be handed in at such

proceedings and shall be prima facie proof of such service [54 Summons as

method of securing attendance of accused in magistrate's court]

The provisions of section 310A in respect of an application or appeal referred to in that section by an attorney-general, and the provisions of section

65 (1) (b) and (c) and (2), (3) and (4) in respect of an appeal referred to in that

section by an accused, shall apply mutatis mutandis with reference to a case in

which the attorney-general appeals in terms of paragraph (a) of this subsection [S 65A inserted by s 7 of Act 75 of 1995.] [Appeal by attorney-general against decision of court to release accused on bail]

1.4.1.3 Mannerisms

Mellinkoff (1963) claims that legal language today is full of mannerisms that have found their way in gradually The purpose was to increase clarity, accuracy, and unambiguity However, the result has been a style which is “wordy, unclear, pompous, and dull” Instead of resorting to short expressions, lawyers and legal drafters build up long, unnecessarily specific lists of words

E.g Any person who rescues or attempts to rescue from custody any person after he or she has been lawfully arrested and before he or she has

been lodged in any correctional facility, police-cell or lock-up, or who aids the person to escape or to attempt to escape from custody, or who harbours or

conceals or assists in harbouring or concealing any person who escapes from

custody after he or she has been lawfully arrested and before he or she has

been lodged in any correctional facility, police-cell or lock-up, shall be guilty

of an offence and liable on conviction to the penalties prescribed in section

117 of the said Correctional Services Act, 1998 [Sub-s (2) substituted by s 4

of Act 66 of 2008.]

1.4.2 Syntax

1.4.2.1 Sentence length and sentence structure in law language

Sentence length is certainly the feature of law language which is often longer than it is in common core language It is because the norm has always been that one element is acquired to explain in full with all its reservation in one sentence

Let us take some examples:

If an accused is alleged to have committed an offence and a peace officer on reasonable grounds believes that a magistrate's court, on convicting such accused of that offence, will not impose a fine exceeding the amount* determined by the Minister from time to time by notice in the Gazette, such peace officer may, whether or not the accused is in custody, hand to the accused a written notice which shall specify the name, the residential address and the occupation or status of the accused; [Sub-s (1) amended by s 2 of Act 109 of 1984 and by s 5 of Act 5 of 1991

If an accused in respect of whom a warrant has been endorsed in terms

of section 55 (2A) intends to pay the relevant admission of guilt fine, the clerk

of the court may, after he has satisfied himself that the warrant is so endorsed, accept the admission of guilt fine without the surrender of the summons, written notice or copy thereof, as the case may be [Para (a) substituted by s

2 (a) of Act 26 of 1987.]

If the court is of the opinion that it does not have reliable or sufficient information or evidence at its disposal or that it lacks certain important information to reach a decision on the bail application, the presiding officer shall order that such information or evidence be placed before the court [Para (a) substituted by s 4 (c) of Act 85 of 1997.]

(1) Subject to section 4 (2) of the Child Justice Act, 2008, if an accused

who is eighteen years or older is in custody in respect of any offence and a police official or a court may in respect of such offence release the accused on

bail under section 59 or 60, as the case may be, such police official or such court, as the case may be, may, in lieu of bail and if the offence is not, in the case of such police official, an offence referred to in Part II or Part III of Schedule 2- release the accused from custody [Accused may be released on warning in lieu of bail] [Para (a) substituted by s 7 (a) of Act 33 of 1986.]

The sentences above exemplify a strategy typical of legal sentences They open with a set of conditions, after which the obligations resulting from the fulfillment of the conditions are expressed, usually in a main clause In other words, the form of the sentence is “if X, then Y shall be (or do) Z” In the above examples two subordinate finite clauses with prepositional phrases

The prepositional phrases indicate the mutual relations between parts (in

terms of, in respect of)

The condition if-clause in example (a), (b) is followed by two ordinate main clauses; in example (c) is followed by three co-ordinate main clauses

co-Recognition and understanding of the structure of a long and complicated sentence does not only depend on the number words and clauses, but also on the degree and type of embedding

1.4.2.2 Clausal structure in law language

The complexity of legal sentences can be determined in terms of sentence length and sentence structure But that is not enough, for the internal structure of individual finite clauses may further complicate the situation

a Nominalizations

Most scholars of legal English have taken heed of their frequency of nominalization in use The nominal sentence elements (subjects, objects, and adverbials) generally consist of de-verbal nouns or non-finite verbs (participles, gerunds, and infinitives) The following example offer instance of the nominal tendency:

E.g In considering whether the ground in subsection (4) (b) has been

established, the court may, where applicable, take into account the following factors [Bail application of accused in court]

The Minister or any officer acting under his or her authority or the

court concerned may remit the whole or any part of any bail money forfeited

under section 66 or 67 [S 70 substituted by s 11 of Act 75 of 1995.] [Remission of bail money]

Participles typically function as post-modifiers to their head nouns, but they can themselves be further modified by other similar modifiers, as can be seen in example (b) This kind of multiple modifications makes the noun phrases quite complicated Charrow and Charrow (1979: 132) call it whiz-deletion (=which is), assuming that it makes understanding more difficult On the other hand, one could also argue that an amplification of post-modifiers into complete relative clauses would complicate the structure of the sentence even more

b Prepositional phrases

The large number of prepositional phrases in law language is probably connected with nominalization It expresses the relationship between various nominal constituents and their modifiers at clausal level in the form of finite clause Here is the following example:

(1) (a) An accused who is in custody in respect of any offence, other than an offence referred to in Part II or Part III of Schedule 2 may, before his

or her first appearance in a lower court, be released on bail in respect of such offence by any police official of or above the rank of non-commissioned officer, in consultation with the police official charged with the investigation,

if the accused deposits at the police station the sum of money determined by such police official [Para (a) substituted by s 3 of Act 26 of 1987, by s 1 of Act 126 of 1992 and bys 2 of Act 75 of 1995.]

In this connection attention could also be drawn to the group of adverbs with the initial elements here-, there-, and where- Their use in everyday

language is definitely archaic, but law language abounds with thereon,

therefrom, whereupon, whereof, therein and many other combinations Here

are some examples:

E.g.: Provided that such police official shall not enter any private

dwelling without the consent of the occupier thereof [Entering of premises

for purposes of obtaining evidence]

If a determination by the court under paragraph (a) is adverse to the

applicant, he may appeal therefrom as if it were a conviction by the court

making the determination, and such appeal may be heard either separately or

jointly with an appeal against the conviction as a result whereof the

declaration of forfeiture was made, or against a sentence imposed as a result

of such conviction [Forfeiture of article to State]

…….such written notice and of any summons or written notice surrendered

to the clerk of the court under subsection (3), in the criminal record book for

admissions of guilt, whereupon the accused concerned shall, subject to the

provisions of subsection (7), be deemed to have been convicted and sentenced

by the court in respect of the offence in question [Admission of guilt and payment of fine without appearance in court]

Any person who is lawfully in charge or occupation of any premises and who reasonably suspects that stolen stock or produce, as defined in any law relating to the theft of stock or produce, is on or in the premises

concerned, or that any article has been placed thereon or therein or is in the

custody or possession of any person upon or in such premises in contravention of any law relating to intoxicating liquor, dependence-producing drugs, arms and ammunition or explosives, may at any time, if a police officer is not readily available, enter such premises for the purpose of searching such premises and any person thereon or therein, and if any such

stock, produce or article is found, he/she shall take possession thereof and

forthwith deliver it to a police official [S 24 substituted by s 12 of Act 59 of 1983.] [Search of premises]

1.4.2.3 Placement of constituent in the clause

E.g The court must, before reaching a decision on the bail application,

take into consideration any pre-trial services report regarding the desirability

of releasing an accused on bail,, if such a report is available [Sub-s (2A) inserted by s 4 of Act 55 of 2003.]

(3) An attorney-general may, under subsection (2), withdraw his right

of prosecution on such conditions as he may deem fit, including a condition

that the appointment by such body or person of a prosecutor to conduct the prosecution in question shall be subject to the approval of the attorney-general, and that the attorney-general may at any time exercise with reference

to any such prosecution any power which he might have exercised if he had not withdrawn his right of prosecution [Private prosecution under statutory right]

Constituents in the clause in two examples above modify the main verb, but if they are placed in the normal post-verbal position, their scope and

head word might be understood The inserted phrase is typically a prepositional phrase or a particular clause expressing the conditions or the manner of the verbal action Thus it is the case that legal sentences are often composed of constituent strings not occurring in everyday language

1.4.3 Other properties of law language

1.4.3.1 References

The most common way of reference between sentences is repetition Quite often the repetition takes place in exactly the same form, but the

repeated noun phrase can also be premodified by pronominal words like such,

the same, said, and that For instance, the said judicial officer may, in lieu of

setting aside the conviction and sentence in question, direct that the amount

by which the said admission of guilt fine exceeds the said determination be refunded to the accused concerned

[NB: S 57 has been substituted by s 7 of the Judicial Matters Amendment Act 66 of 2008, a provision which will be put into operation by proclamation.]

In some sense of the adverbs beginning with here-, there-, and where- could be counted as instances of pronominal reference They can be used either internally, to refer to the extent of the message, or externally, as reference to the organization of the text

1.4.3.2 Binomials

Legal drafters and lawyers defend binomials by claiming that instead of confusing, they increase the exactness of law language as even small differences in meaning will be taken into consideration

(1) In addition to the provisions of section 63 (5) of the Child Justice Act, 2008, if it appears to any court that it would, in any criminal proceedings

pending before that court, be in the interests of the security of the State or of

good order or of public morals or of the administration of justice that such

proceedings be held behind closed doors, it may direct that the public or any

class thereof shall not be present at such proceedings or any part thereof

[Sub-s (1) substituted by s 99 (1) of 75 of 2008.]

(1) On the arrest of any person, the person making the arrest may- (a) if he is a peace officer, search the person arrested and seize any

article referred to in section 20 which is found in the possession of or in the

custody or under the control of the person arrested, and where such peace

officer is not a police official, he shall forthwith deliver any such article to a police official;

1.5 Linguistic features of Vietnamese legal language

E.g Mọi hành vi xâm phạm tính mạng, sức khoẻ, danh dự, nhân phẩm,

tài sản đều bị xử lý theo pháp luật [Điều 7 Bảo hộ tính mạng, sức khoẻ, danh

dự, nhân phẩm, tài sản của công dân]

xâm phạm danh dự, nhân phẩm, tài sản thì cơ quan có thẩm quyền tiến hành

tố tụng phải áp dụng những biện pháp cần thiết để bảo vệ theo quy định của pháp luật [Điều 7 Bảo hộ tính mạng, sức khoẻ, danh dự, nhân phẩm, tài sản của công dân]

Thủ trưởng, Phó Thủ trưởng Cơ quan điều tra, Điều tra viên, Viện trưởng, Phó Viện trưởng Viện kiểm sát, Kiểm sát viên, Chánh án, Phó Chánh

án Toà án, Thẩm phán, Hội thẩm, Thư ký Tòa án không được tiến hành tố

tụng hoặc người phiên dịch, người giám định không được tham gia tố tụng, nếu có lý do xác đáng để cho rằng họ có thể không vô tư trong khi thực hiện nhiệm vụ của mình [Điều 14 Bảo đảm sự vô tư của những người tiến hành hoặc người tham gia tố tụng]

b Mannerisms

Mellinkoff claims that legal language today is full of mannerisms that have found their way in gradually The purpose was to increase clarity, accuracy, and unambiguity However, the result has been a style which is

“wordy, unclear, pompous, and dull” Instead of resorting to short expressions, lawyers and legal drafters build up long, unnecessarily specific lists of words

E.g Để kịp thời ngăn chặn tội phạm hoặc khi có căn cứ chứng tỏ bị

can, bị cáo sẽ gây khó khăn cho việc điều tra, truy tố, xét xử hoặc sẽ tiếp tục

phạm tội, cũng như khi cần bảo đảm thi hành án, Cơ quan điều tra, Viện kiểm

sát, Toà án trong phạm vi thẩm quyền tố tụng của mình hoặc người có thẩm

quyền theo quy định của Bộ luật này có thể áp dụng một trong những biện

pháp ngăn chặn sau đây: bắt, tạm giữ, tạm giam, cấm đi khỏi nơi cư trú, bảo

lĩnh, đặt tiền hoặc tài sản có giá trị để bảo đảm

1.5.2 Syntax

1.5.2.1 Sentence length and sentence structure in law language

Sentence length is certainly the feature of law language which is often longer than it is in common core language It is because the norm has always been that one element is acquired to explain in full with all its reservation in one sentence

Let us take one example:

Nếu phát hiện những hành vi trái pháp luật của cơ quan tiến hành tố tụng, người tiến hành tố tụng thì cơ quan nhà nước, đại biểu dân cử có quyền yêu cầu, Uỷ ban Mặt trận Tổ quốc Việt Nam, các tổ chức thành viên của Mặt trận có quyền kiến nghị với cơ quan tiến hành tố tụng có thẩm quyền xem xét,

giải quyết theo quy định của Bộ luật này [Điều 32 Giám sát của cơ quan, tổ

chức, đại biểu dân cử đối với hoạt động của cơ quan tiến hành tố tụng, người tiến hành tố tụng]

The sentence above exemplifies a strategy typical of legal sentences It opens with a set of conditions, after which the obligations resulting from the fulfillment of the conditions are expressed, usually in a main clause In other words, the form of the sentence is “if X, then Y shall be (or do) Z”

The core of this provision is “(Nếu) người tiến hành tố tụng phát hiện

những hành vi trái pháp luật của cơ quan tiến hành tố tụng thì có quyền kiến nghị….”

1.5.2.2 Clausal structure in law language

The complexity of legal sentences can be determined in terms of sentence length and sentence structure But that is not enough, for the internal structure of individual finite clauses may further complicate the situation

Nominalizations

Most scholars of legal English have paid attention to their high frequency of nominalization in use The nominal sentence element (subjects, objects, and adverbials) generally consist of de-verbal nouns or non-finite verbs (participles, gerunds, and infinitives) The following example offer instance of the nominal tendency:

Việc giải quyết vấn đề dân sự trong vụ án hình sự được tiến hành cùng

với việc giải quyết vụ án hình sự [Điều 28 Giải quyết vấn đề dân sự trong vụ

án hình sự]

Việc xét xử của Toà án nhân dân có Hội thẩm nhân dân, của Toà án

quân sự có Hội thẩm quân nhân tham gia theo quy định của Bộ luật này Khi xét xử, Hội thẩm ngang quyền với Thẩm phán [Điều 15 Thực hiện chế độ xét xử có Hội thẩm tham gia]

1.5.2.3 Placement of constituent in the clause

E.g Trong quá trình tiến hành tố tụng, cơ quan tiến hành tố tụng,

người tiến hành tố tụng phải nghiêm chỉnh thực hiện những quy định của pháp luật và phải chịu trách nhiệm về những hành vi, quyết định của mình

The inserted phrase trong quá trình tiến hành tố tụng is typically a

prepositional phrase or a particular clause expressing the conditions or the manner of the verbal action

1.5.3 Other properties of legal language

References

The most common way of reference between sentences is repetition Quite often the repetition takes place in exactly the same form, but the repeated noun phrase

Bản án, quyết định sơ thẩm của Toà án có thể bị kháng cáo, kháng nghị

theo quy định của Bộ luật này

Bản án, quyết định sơ thẩm không bị kháng cáo, kháng nghị trong thời

hạn do Bộ luật này quy định thì có hiệu lực pháp luật Đối với bản án, quyết

định sơ thẩm bị kháng cáo, kháng nghị thì vụ án phải được xét xử phúc thẩm Bản án, quyết định phúc thẩm có hiệu lực pháp luật [Điều 20 Thực hiện chế

độ hai cấp xét xử]

1.6 Conclusion

This chapter has reviewed the linguistic features of legal language in general and those of Vietnamese one in particular In addition, theory of and approaches to the translation quality assessment are also under in-depth review and discussion

CHAPTER 2: METHODOLOGY

As mentioned in Chapter 1, the study is conducted on the basis of the model proposed by German linguist Juliane House The study is concerned with qualitative aspect Accordingly, the methodology employed in the paper

is mainly based on the set of parameters and operation of the model in which both the ST and TT are under analysis This analysis is through lexical, syntactic, and textual means The analysis of the translation and the ST make

it possible to determine whether the text is translated covertly or overtly This Chaper will shed light on the model and its operation before it is applied to the translation quality assessment of this Code

2.1 House’s model for translation quality assessment

The model for translation quality assessment developed by House (1997) offers a starting point for the development of a relatively comprehensive model for evaluating the quality of translations in general and translator trainees' work in particular The assessment model (House 1997) is based on Hallidayan systemic-functional theory, but also draws eclectically

on Prague school ideas, speech act theory, pragmatics, discourse analysis and corpus-based distinctions between spoken and written language It provides for the analysis and comparison of an original and its translation on three different levels: the levels of Language/Text, Register (Field, Mode and Tenor) and Genre

One of the basic concepts underpinning the model is “translation

equivalence”- a concept clearly reflected in conventional everyday

understanding of translation, i.e., the average “normal,” i.e., professionally trained person thinks of translation as a text that is some sort of

non-“representation” or “reproduction” of another text originally produced in

another language, with the “reproduction” being of comparable value, i.e., equivalent “Equivalence” is the fundamental criterion of translation quality Ivir expresses the inherent relativity of the equivalence relation very well:

“Equivalence is…relative and not absolute,…it emerges from the context of situation as defined by the interplay of (many different factors) and has no existence outside that context, and in particular it is not stipulated in advance by an algorithm for the conversion of linguistic units of L1 into linguistic units of L2” (1996: 155)

It is obvious that equivalence cannot be linked to formal, syntactic and lexical similarities alone because any two linguistic items in two different languages are multiply ambiguous, and because languages cut up reality in different ways Further, language use is notoriously indirect necessitate inferencing to various degrees This is why functional, pragmatic equivalence –a concept which has been accepted in contrastive linguistics for a long time –is the type of equivalence which is most appropriate for describing relations between original and translation And it is this type of equivalence which is used in the functional pragmatic model suggested by House (1997), where it

is related to the preservation of “meaning” across two different languages and cultures

Three aspects of that “meaning” are particularly important for translation: a semantic, a pragmatic and a textual aspect, and translation is viewed as the recontextualization of a text in L1 by a semantically and pragmatically equivalent text in L2

As a first requirement for this equivalence, it is posited that a translation text have a function equivalent to that of its original which—consisting of an ideational and an interpersonal functional component —is

defined pragmatically as the application or use of the text in a particular context of situation

The context of situation in which the text unfolds is encapsulated in the text through a systematic relationship between the social environment on the one hand and the functional organization of language on the other

The function of a text must be therefore found for breaking down the broad notion of “context of situation” into manageable parts, i.e., particular features of the context of situation or “situational dimensions”

To this end, House adopted Crystal and Davy’s (1969) system of situational dimensions as a starting point and modified it to better suit to translation assessment (House 1997: 37-39) Below are the three sections presented and discussed in Crystal and Davy (1969):

A Individuality

Dialect Time