Obstacles to accurate and fluent legal interpretation and feasible solutions to the problems

DEGREE IN ENGLISH Major: Legal English OBSTACLES TO ACCURATE AND FLUENT LEGAL INTERPRETATION AND FEASIBLE SOLUTIONS TO THESE PROBLEMS Supervisor: LL.M., M.A... 10 CHAPTER 2: OBSTACLE

MINISTRY OF EDUCATION AND TRAINING

HO CHI MINH CITY UNIVERSITY OF LAW

GRADUATION THESIS B.A DEGREE IN ENGLISH

Major: Legal English

OBSTACLES TO ACCURATE AND FLUENT LEGAL INTERPRETATION

AND FEASIBLE SOLUTIONS TO THESE PROBLEMS

Supervisor: LL.M., M.A Pham Thi Phuong Anh Student: Nguyen Duong Quynh Chi

Student ID: 1652202010014 Class: LE41

Ho Chi Minh City, 2020

ACKNOWLEDGEMENTS

Foremost, I would like to express my sincere appreciation to my supervisor,

Ms Pham Thi Phuong Anh who was continuously supporting me in every problem occurred during of this thesis Without her guidance, assistance and dedicated involvement in every step throughout the process, this work would have never been accomplished Besides, she also impressed and taught me to form a professional working style

In addition to my instructor, my sincere thanks also go to all my teachers in the Legal Linguistics Department who gave me the opportunity to broaden my horizon

as well as had contributed invaluable knowledge and memorable experience throughout my four years of study

Over these past four years, I have taken part of other activities, with countless people teaching and helping me in every step Thank you to everyone from LE41, especially my beloved friends having supported and provided me with strength, encouragement as well as valuable friendship Moreover, very special gratitude goes out to Ms Pham Vo Thao Lien and Mr Le Thanh Tung standing out as an amazing source of positive energy and encouragement for me

Most importantly, I would like to dedicate this work to my beloved parents for their unconditional support all these years They have cherished with me every moment no matter it was a great or awful one

Figures Index Figure 1: Suggested abbreviation making methods 28 Figure 2: Suggested symbols for speeding up note-taking 29

TABLE OF CONTENTS

INTRODUCTION 1

1 The Urgency of the Thesis 1

2 Research Objectives 2

3 Research Subject 2

4 Scope of Research 2

5 Research Methodologies 3

6 Research Structure 3

CHAPTER 1: OVERVIEW OF INTERPRETATION 4

1 Types of interpretation 4

1.1 Consecutive interpretation 4

1.2 Simultaneous interpretation 5

2 Rules of interpretation 5

3 Characteristics of legal interpretation 6

3.1 Characteristics of lexicon 6

3.2 Characteristics of syntax 8

3.3 Frequent contexts 9

CONCLUSION OF CHAPTER 1 10

CHAPTER 2: OBSTACLES TO ACCURATE AND FLUENT LEGAL INTERPRETATION 11

1 Obstacles to accurate legal interpretation 11

1.1 Different legal systems and laws 11

1.2 Cultural awareness 12

2 Obstacles to fluent legal interpretation 14

2.1 Note-taking 14

2.2 Memory problems 15

2.3 Listening comprehension 16

2.4 Speaking skill 17

CONCLUSION OF CHAPTER 2 18

CHAPTER 3: FEASIBLE SOLUTIONS TO THESE PROBLEMS 19

1 Solutions to accurate legal interpretation 19

1.1 Cognitive effort to study the legal systems of both source language and target language 19

1.2 Studying specific feutures of legal languages 20

2 Solutions to fluent legal interpretation 20

2.1 Improve listening skill 20

2.2 Note-taking 23

2.3 Presentation 30

3 Interpretation techniques 32

3.1 Preparation 32

3.2 Memory training 33

3.3 Practicing for listening and reproduction at the same time 35

3.4 Interpretation practice principles 36

CONCLUSION OF CHAPTER 3 36

CONCLUSION 38

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INTRODUCTION

1 The Urgency of the Thesis

As globalization is evolving dramatically, Vietnam, as a result, has entered this integration process intensively and its demands of international relations have gained further popularity However, the differences in legal systems are likely to cause plenty of barriers in exchanges, which can affect the attractiveness of a nation’s either market or investment Hence, the demands for bilingual and multilingual legal comprehension are radically compulsory

Besides the translation which offers people the opportunity to understand great deals of legal aspects, legal interpretation plays an integral role in business exchanges particularly in the form of speaking Legal interpretation does not only translate the speech into another language but also brings the familiar terms which are used in the listeners’ legal frame Thus, listeners can easily get the point as well

as comprehend all obstacles Moreover, there are many legal conferences and seminars are taken place due to the fact that each nation has its own legal systems has raised a source of learning needs in order to develop and perfect itself Also, international disputes are a reason why these events are important These elements bring a great opportunity for interpreters who are not only good at English but also possess legal knowledge

In addition, there are no courses or schools of legal interpretation in Vietnam

in spite of institutions of interpretation are increasing steadily This seems to bring beginners many obstacles when they take up becoming interpreters as the lack of guidance and orientation as well

For the reasons above, the topic “Obstacles to accurate and fluent legal interpretation and feasible solutions to these problems” is chosen as the title of

this thesis

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2 Research Objectives

The aims of this work are: (i) to clarify the feature of legal English in interpretation; (ii) to determine essential obstacles in legal interpretation; and (iii) to introduce feasible solutions to deal with these legal interpretation problems

The tasks mentioned will hopefully facilitate interpreters in Vietnam when interpreting in legal events

3 Research Subject

Research subjects in this thesis are divided into two (02) main groups of knowledge and skills The necessity of getting legal knowledge comes from comparing the differences between general English and legal English and the requirements to use the legal terms accurately Besides, language skills such as listening, speaking, note-taking or memorizing are considered as tools to help interpreters accomplish their work Therefore, enhancing language skills in legal interpreters is required

Secondly, the interpretation process mentioned in this thesis is from English to Vietnamese and vice versa

Thirdly, although there are many types of interpretation, this thesis forcus mainly on the form of consecutive interpretation and simultaneous interpretation

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5 Research Methodologies

The main methods applied in this thesis are synthesis analysis and contextual analysis methods Synthesis analysis brings a view of general knowledge by combining and comparing plenty of domestic and foreign authors’ works, references

as well as practical experience Meanwhile, contextual analysis helps to choose not only the accurate meaning for terms or phrases used as example but also avoid ambiguity or misunderstanding of meanings

6 Research Structure

This thesis is divided into three (03) chapters

Chapter 1: Overview of interpretation

Chapter 2: Obstacles to accurate and fluent legal interpretation

Chapter 3: Feasible solutions to these problems

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CHAPTER 1: OVERVIEW OF INTERPRETATION

The word interpretation has a wide range of meanings based on different situations According to the scope of this thesis, interpretation refers to a

transliterating process occurring “during cross-cultural communication when two parties do not share the same language” (James 2005, p.13) Interpreters who

perform this process will listen to a spoken message and render it from a source language to a target one Besides, the aim of this process is to bridge not only the language differences but also the cultural barriers in intercultural communication While translators depend on thorough research with fundamental materials and dictionaries to produce the most accurate and readable written translation, the interpreters rely mainly on the ability to get the gist of the messages across to the target audience on the spot

to organize ideas, perfect structures, and elect accurate vocabularies

Consecutive interpretation often takes place in international conferences as well as in some circumstances such as talks between Heads of State, legal practitioners, doctors and patients, tour guides and tourists, etc

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1.2 Simultaneous interpretation

Simultaneous interpretation is the transliterating process in which interpreters have to translate the speakers’ speech as it is being delivered in the source language almost at the same time This type of interpretation is suitable for small events in the form of a whisper in order to avoid disturbing both the speakers and listeners In whispered interpretation, interpreters sit behind a participant and simultaneously whisper the interpretation for only that person

Besides, when simultaneous interpretation is used in conferences, interpreters sit in a soundproof booth, listening to the speakers through earphones, speaking into

a microphone, and the participants use the headset to follow the interpreters

to avoid ambiguity

When it comes to pronunciation’s principle, interpreters must have a clear voice and the right pronunciation Besides, the interpreters’ speed influences the quality of the interpretation process as well Thus, in order to make sure that the listeners can follow and understand interpreters should deliver the speech at an appropriate speed

The last rule relates to the subject which must be suitable for the capacity of interpreters It is due to the fact that interpretation is the work not only requiring

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linguistic competence but also knowledge competence As for the language, it includes at least a bilingual with language fluency in both source language and target language and a mastery of both general vocabulary and specialized terminology Concerning the knowledge, interpreters have to acquire some fundamental knowledge in multifarious fields with which they deal, and the level of that knowledge must be adequate for understanding (Khoa 2019, p.64-93)

3 Characteristics of legal interpretation

Legal interpretation is a specialized area of interpretation activity As the law is

a set of rules and regulations which regulate and influence behaviors of people in

society, legal interpretation’s “product” is not only linguistic but also legal impact

and consequence Moreover, according to Caton (1963), language used in the legal

area is considered as “a type of technical language which serves as an attachment of ordinary language like the scientific languages of physics, mathematics, etc.” Therefore, it is obvious that legal interpretation is “a practice that stands at the crossroads of legal theory, language theory, and translation theory” (Cao 2007, p.7)

as well as has some specific features in comparison with other interpretation’s areas

(3) Shared, common or unmarked vocabulary

As clarify by Berukstiene (2016), the first group of legal lexicons is the

existence of terminology which “are used exclusively in legal context and are not

of legal English is derived mostly from Latin words, the use of Sino-Vietnamese plays an essential role in terms of constituting Vietnamese legal terminology According to the study of Tien (1999) about the characteristics of Vietnamese legal language, he has shown that Sino-Vietnamese accounts for 93% of the total core legal terms of the existing Civil Code for the time being (i.e Civil Code 1995) Although Latin words, archaic compound adverbs, and Sino-Vietnamese seem complex and difficult to remember, their functions that are to help the legal content become more accurate and concise are undeniable Besides, it is evident that

reduplication (i.e doublets and triplets) which “usually is comprised of two or three near synonyms” (Berukstiene 2016) is a high tendency in legal English For

example, “false and untrue, null and avoid, request and require, have and hold, full and complete” (Berukstiene 2016)

Apart from the technical terminology which is significant and unique to different science, legal language is constituted by a set of words and phrases which are not only used on daily basis but also have particular meaning within legal

settings The word “sentence” is an example of this kind of lexicon In general English, the sentence is employed with meaning as “a group of words, usually containing a verb that expresses a thought in the form of a statement, question,

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instruction, or exclamation and starts with a capital letter when written”1 However,

in the legal context, the sentence means a kind of punishment regulated by law

Vietnamese legal language is also contributed by this feature with such words as tài sản, doanh nghiệp, đại diện, etc., which always have a specific definition in law and

different from the nouns used on daily basis

The last group of legal lexicons consists of “terms in general use which are found in legal texts” and “have neither lost their everyday meanings nor acquired others by contacts with the specialist medium” (Berukstiene2016) Such words as

“agree” and “yêu cầu” are examples in English and Vietnamese respectively

Legal lexicon is a “universal feature of legal language but different legal languages have their own unique legal vocabulary” and therefore has been

subjected to analysis in a lot of studies (Cao 2007, p.20)

3.2 Characteristics of syntax

As analyzing the syntax feature of legal language, Cao (2007, p.21) identifies it

is “the formal and impersonal written style coupled with considerable complexity and length” because of “the complexity of the subject matters and the prospective nature of legislative law” Although speakers do not read full law articles or legal

documents in their speech, the sentences produced in the legal field seem longer than in other types in order to clarify the subject matters’ characters Besides, due to the nature of law, the uses of conditions and exceptions are used extensively in most legal language These peculiar linguistic features function to anticipate all circumstances that may arise Apart from these features, legal English also employs nominalizations, complex structures, passive voice, multiple negations, and prepositional phrases As stated in the study of Berukstiene (2016), Varo and

Hughes say the use of passive voice is “to keep the stress on the action, rule or

1 https://dictionary.cambridge.org/dictionary/english/sentence

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decision rather than on the personality of the doer.” They also point out another

striking fact related to morphology in the legal field, which is the way how active

and passive parties formed with suffices -er (-or) and -ee, for instance, employer and employee, grantor and grantee

3.3 Frequent contexts

Although interpretation gain population dramatically in recent decades, people can see that legal interpretation is taken place in some specific events The first circumstance is international legal conference or seminar, which is conducted to create an environment for experts coming from different nations to have opportunities to analyze and discuss the legal matters such as the effects of an international economic partnership agreement, the comparison of penalties framework between different legal system or the East Sea disputes and their impacts

on the marine environment of Vietnam, etc Secondly, court interpretation is also very popular In case Vietnamese people engage in court but they cannot speak or understand English very well, a court interpreter verbally interprets everything the judge and others say from English into Vietnamese, and vice versa Even if these people can communicate bilingually on their daily basis, the situation and language

in court can be very difficult to comprehend Thus, court interpreters play a crucial role in court relating to foreign elements In addition, legal interpreters may work in workshops, meetings, or training relating to law in order to make sure that participants can understand all technical terms accurately As these events may cause effects on society, their atmosphere seems always extremely severe and therefore put interpreters under high pressure

In legal interpretation, there are also some frequent situations that interpreters need to face For instance, speakers might launch themselves into long complex sentence In this case, whether the interpreter could create shorter sentences from those to gain clarity, which meant a shorter speaking time? Or while performing the

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interpretation process, interpreters come up with a better sentence than the original idea Should they complete what they were saying or change it to a better one, which means a longer speaking time? These circumstances always cause a lot of obstacles for interpreters

CONCLUSION OF CHAPTER 1

In conclusion, besides similar features, the work of legal interpretation includes certain specific characteristics as well, which relate to its language and the context As a technical language, the language of the law consists of some striking elements as to not only lexicon but also syntax In addition to having some kinds of technical vocabulary, legal language also comprises of some particular points of syntax such as the complexity of sentence or the form of words Besides, because of the characteristics of legal fields, the context of this interpretation area is likely to be more severe as well as put people under more pressure than the others

in order to clarify these problems Furthermore, these obtacles are divided into two (02) groups of obstacles to accurate and obstacles to fluent legal interpretation

1 Obstacles to accurate legal interpretation

1.1 Different legal systems and laws

It is undeniable that different legal systems and laws cause many challenges for interpreters; the legal concept is an obvious example Besides, as Cao (2007,

p.53) illustrates that “words are the building blocks of language” and because of

being a crucial part of a technical language, legal terminology is also the challenge sources of legal interpretation

Due to the fact that the legal concept is “abstraction of the generic legal thought and rules within a legal system” (Cao 2007, p.54), it causes a material

problem in interpreting The first one is that whether a concept in one language can

be translated as a concept in another language since legal systems are influenced by

a lot of elements such as historical origin, sources of law, or court procedure For

example, in Common Law, “consideration” which means “any lawful alteration of responsibilities that is given in exchange for the other person’s consideration (“his/her lawful alteration of responsibilities)” (Robert 2009, p.105) is one of four

compulsory elements for an enforceable agreement along with offer, acceptance,

obligating mutuality However, in Vietnam law, “consideration” does not exist

As mentioned above, one specific feature of legal language is the use of legal unique vocabulary Cao (2007, p.60-66) categorized this feature into three (03) types

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of words and each of them also causes some specific difficulties for interpreters The first group contains words associated with the legal profession or legal personnel The difference in the name of lawyers in England and Vietnam is a noticeable

example Although the titles of solicitors and barristers are interpreted into Vietnamese as luật sư tư vấn and luật sư tranh tụng respectively, the nature of these titles is different in many aspects In England, in order to distinguish solicitors and barristers, it is compulsory to clarify not only the routine of work but also the excavation process between them However, in Vietnam, luật sư tư vấn và luật sư tranh tụng are trained in the same way and get the certificate to practice law (Ha

2018, p.15) Hence, these terms can cause confusion to listeners Secondly, words

associated with courts which are structured differently in different nation’s law In England, for example, there are seven main levels in the court hierarchy, i.e the House of Lords, the Supreme Court of Judicature, Court of Appeal, the High Court

of Justice, the Crown Court, the County Courts, and the Magistrates Court when the Vietnamese court system consists of the District People’s Courts, the Provincial People’s Courts, the High Court, the Supreme People’s Court, the Military Court Because of the fact that different courts in different countries have different roles, the interpreters need to consider the differences in court jurisdiction when interpreting in order to meet the role of content’s accuracy The third type is words associated with areas of law and institutions As there are many different divisions and branches of laws that major in different subjects, those consist of special sets of lexicons This feature puts tension on interpreters to have a fundamental legal background of both target language and source language

1.2 Cultural awareness

Cultural awareness is another issue that should be taken into serious consideration since a misinterpretation or misunderstanding might bring about disastrous consequences Misinterpretation is caused by the inability of interpreters

Besides, legal metaphor is one of the reasons why interpreters have to be culturally-conscious at all times to get the message if they do not know the meaning

in advance The doctrine of “fruit of the poisonous tree” can be taken as an example,

which is used to describe evidence suppressed in a court of law if it is obtained illegally.2 This metaphor comes from Christian doctrine having material influences

on Common law system Hence, without decoding the culturally determined metaphor, interpreters cannot be able to translate this term

Another problem related to culture originates from the source of law’s difference It is obvious that Civil law is made up mostly by written legal norms and codes whereas cases and precedents consider the main source of the Common law system For instance, Son and Nghi (2019, p.118) claim that originating from the case of Miranda vs Arizona, Miranda Warning has become the compulsory warning made by police to suspects before any questions The purpose of this warning is to

preserve the admissibility of their statements made during custodial interrogation in later criminal proceedings.3 As being bounded by the cultural-related history

background, Miranda Warning could not be translated as “Khuyến cáo Miranda” as

it may confuse listeners and leave the term unintelligible Based on its historical background and scope of the concept, the possible translation of this term is

“Khuyến cáo về quyền im lặng”, instead (Son and Nghi 2019, p.118)

2

https://en.wikipedia.org/wiki/Fruit_of_the_poisonous_tree

3 https://en.wikipedia.org/wiki/Miranda_warning

It is apparently obvious that the information presented in legal conferences or legal events is always complicated and technical such as law articles or effective days of legal documents Due to this density characteristic, interpreters always try to note as much as possible in order to make a “replica” of the speech Consequently, their notes may become a form of shorthand which is the mere sequence of words

used by speakers as well as “influence the interpreter when they are reproducing the speech” because the note “will be too much a transliteration of original, not a re- expression of its ideas” (Roderick 2002, p.39) James Nolan (2005, p.294) also points out that take note of everything is unnecessary as in English, “a hundred words may contain only one idea, while one word may imply several ideas”

Furthermore, when interpreters make an attempt to write down, they may miss out

on the speakers’ ideas or main information

Secondly, as the work of interpreters is described as three main steps: understanding, analyzing and re-expression, if interpreters tend to depend too much

on their notes, “they will have paid insufficient attention to genuine understanding

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and analyzing while listening to the speech” (Roderick 2014, p.39) As mentioned

above, the legal interpreting process does not merely translate the legal vocabulary but involving the work of interpreting from one legal system to another Therefore, the lack of understanding and analyzing a coherent whole results the inaccurate interpretation

In addition, another problem that interpreters always face is the misunderstanding of their own notes, which may be the consequence of interpreters’ scrawl Besides, that people try to write down everything without linking words makes their notes involve a series of sentences to be reproduced automatically, which may bring embarrassment to interpreters as well as reduce the productivity when use take-noting to interpret

2.2 Memory problems

Take-note is a technique supporting interpreters to reformulate speakers’ ideas but it is impossible for them to rely solely on notes for the reasons mentioned above and, hence, the function of memory cannot be replaced Explicit memory offers interpreters opportunities to recall information and data as quickly as possible in the required circumstances Moreover, the requirements’ interpretation relating to the completeness, accuracy and loyalty are also based on memory (Hung 2007, p.83) Thus, interpreters need to use both two types of memory including long-term memory, and short-term memory Each of them plays a specific role in the interpreting process as well as in the different types of interpretation

When conducting consecutive interpretation, interpreters listen to a message and then reproduce it by another language Thus, this process must call upon memory which is short-term memory in particularly with the assist of note-taking The issue arising is how interpreters formulate memory and facilitate it to translate immediately through recall by note-taking merely

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In the second mode of interpretation, interpreters need to conduct the processes

of reproducing the speech in the target language and memorizing the upcoming content of the speech simultaneously Thus, this forces interpreters to use short-term memory as well as concentrate intensively in order not to miss out on the information

In the study of Roderick Jones (2014, p.33), he points out that the context of speech influences the memory of interpreters as well He illustrates that a speech consists of a great deal of contexts and the interpreters need to recognize the beginning and the end of it In case the interpreters fail to guess where the beginning

of the context is, “they have little chance of following the right path or of arriving where they are supposed to” (Roderick 2014, p.33) Similarly, although the

conclusion is a recapitulation or a summary of what has gone before, the interpreters who do not acknowledge of the conclusion are likely to miss the point of the speech and make listeners uncertain about it as well

2.3 Listening comprehension

As listening comprehension belongs to interpreters’ linguistic ability, the difference between the language structures that Vietnamese is a tonal language while English is intonational language always makes this skill challenging for interpreters In addition, according to the study of Nguyen Quoc Hung (2007, p.48), the almost fault and low-quality translation come from the listening comprehension skill

In order to re-express speakers’ ideas effectively, interpreters have to acknowledge the messages clearly and then reformulate them without repeating word-for-word Hence, interpreters must be able to analyze the structure of such ideas, which depends on the comprehension capacity by listening to each idea

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separately That means the process of interpreting consists of three stages namely understanding, analyzing, and re-expressing

However, there are many elements affecting the first stage of this process

Firstly, even though the “understanding” referring to here is not of words but of

ideas, interpreters cannot obviously understand ideas if they do not know the words the speaker is using or are not acquainted sufficiently with the grammar and syntax

of the speakers’ language (Roderick 2014, p.11) A general unfamiliarity with the topic in hand is also contributing to this problem, particularly in terms of technical lexicons.4

That speakers using local language, speaks too quickly or softly is also one of the obstacles affecting interpreters’ understanding In these cases, interpreter must

be experienced as well as skillful to handover

Interpreters are, sometimes, able to listen to speakers even understand every words said but they cannot get the view or the point of speakers This is caused by the fact that speakers may talk around the subject instead of speaking directly or vice versa (Huy 2019, p.104)

2.4 Speaking skill

In 1967, Albert Mehrabian suggested that successful communication is made

up of three (03) parts: actual words (7%), voice impression (38%) and body language (55%) (Nhat 2012, p.59) Thus, besides the personal body language, choosing accurate words and learning how to make voices more appealing raise a lot

of obstacles for interpreters

As for voice delivery, pronunciation is considered as the most important element, because it ensures the clarity on the interpreted messages and the understanding of the audience as well The poor pronunciation might destroy

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https://www.erudit.org/en/journals/meta/2012-v57-n3-meta0694/1017092ar/