Language engineering for legal transplantation: Conceptual problems in creating common law Chinese

Pergamon Language & Communication, Vol. 16, No. 3, pp. 235 254, 1996

Copyright © 1996 Elsevier Science Ltd Printed in Great Britain. All rights reserved

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L A N G U A G E E N G I N E E R I N G F O R L E G A L T R A N S P L A N T A T I O N : C O N C E P T U A L P R O B L E M S IN C R E A T I N G C O M M O N L A W C H I N E S E

KING-KUI SIN and DEREK ROEBUCK

Background On 1 July 1997 Hong Kong ceases to be a British colony and becomes once again a part of China as a Special Administrative Region (SAR). However, for obvious political and economic reasons both the English common law and the English language will be retained in the SAR. This policy was first stated in the Sino-British Joint Declaration in 1984 and finally adopted in the Basic Law in 1990. Articles 8 and 9 of the Basic Law provide:

Article 8

The laws previously in force in Hong Kong, that is, the common law, rules of equity, ordinances, subordinate legislation and customary law shall be maintained . . . .

Article 9

In addition to the Chinese language, English may also be used as an official language by the executive authorities, legislature and judiciary of the Hong Kong Administrative Region.

The retention of the common law in the SAR has to satisfy one condition implied in Article 9: the law of the SAR will have to be administered in the language of the sovereign state, Chinese, although it may, in addition, be administered in English. The imminent switch from a unilingual to a bilingual legal system had been made known to Hong Kong back in 1984 when the Joint Declaration was promulgated. Realizing the urgency of the matter, the Hong Kong Government launched the Bilingual Laws Project in 1986. The primary objective of the project is to produce an authentic Chinese text of the legislation of Hong Kong (see Hong Kong Attorney General's papers, 1986). Two methods are being used for this purpose. Parallel drafting is used for current legislation, and translation for existing legislation, the English text of which has already been enacted (Cheung, 1987, pp. 1-2) t

However, the production of an authentic text of the legislation in Chinese satisfies the condition only partially, for legislation is but a small portion of the law in Hong Kong. The bulk is found in the reports of cases decided by the Hong Kong Supreme Court - - High Court and Court of Appeal - - and the highest court for the colonies, the Privy Council. There are still vestiges of customary law. While the Hong Kong Government has undertaken to ensure that all legislation is in Chinese as well as in English by 1 July 1997, 2 it has, quite understandably, left case law entirely untouched. The reports in which it is found are far too voluminous already and proliferate far too fast for any organization, or even for any government, to translate. 3

Correspondence relating to this paper should be addressed to Dr K. K. Sin, Principal Lecturer, Department of Chinese. Translation and Linguistics, City University of Hong Kong, 83 Tat Chee Avenue, Kowloon Tong, Hong Kong.

235

236 KING-KUI SIN and DEREK ROEBUCK

One way out of this predicament is to employ the well-tried traditional technique of creating a digest of the common law? A digest is a distillation of the legal principles. Its creators perform the same functions as lawyers do every day. collecting all relevant authorities, sifting them and putting them into hierarchies of authority and applicability, then extracting the law from them. A more efficient process would be to codify at the same time, transforming statements into prescriptions by changing the way they are phrased and giving legislative authority to the result. But whether to codify is a political issue among lawyers, dividing them into conservatives and progressives. In Hong Kong, for the present, there is no doubt that the conservatives would block wholesale codification, which to English and colonial lawyers is still redolent of vague but disturbing Continental influence.

To complement the Bilingual Laws Project undertaken by the Hong Kong Government, a research team composed of lawyers and linguists was formed in 1988 to produce a Chinese digest of the common law of Hong Kong. The first volume of what is hoped to be a multi-volume digest has been completed (Roebuck et al., 1995a). This states the law of contract in Chinese, with a translation back into English. The text is a description, as best the authors can create it, of the present law of contract in Hong Kong. It is accompanied by a commentary, showing its workings - - where the law has been found, how choices have been made and justifications for them, sometimes with examples. There is an apparatus of footnotes in the form usual in legal texts. Work is already advanced on a second, much larger work, containing the whole of the criminal law (Roebuck, 1995b; Zhao and Roebuck, 1996).

Problems in switching over to a bilingual legal system The ideological context in which the digest has been conceived can best be seen vis-a-vis the problems confronting Hong Kong in its switch to a bilingual legal system. They arise from the retention of the common law in Chinese, and are similar in nature to those which many former British colonies have encountered. Unfortunately, the experience of these colonies is not of much help to us as they seem unable to appreciate the conceptual aspect of the problems and, consequently, unable to tackle them at a more theoretical level.

The first question that naturally arises concerns language attitude but is very often phrased as a linguistic issue: is the common law accessible to the native language of the former colony? Is the expressive power of the native language adequate for expressing common law concepts, which are couched in a highly complex, precise and technical language? And as the native language is a low language not used in the legal domain, is it possible to raise it to the level of a high language so that it can function as the language of the law? As we will try to show, these are essentially emotive issues prompted by prejudices and psychological resistance to change.

Secondly, since common law concepts are culture-laden concepts, characteristic of the legal system from which they developed, it is doubtful whether they can find equivalents in the native language. This has prompted many to contend that because of the conceptual gaps, difficulties inherent in translating common law terms into the native language are insurmountable.

Thirdly, where it is necessary to produce, in addition to the English text, an authentic text of the law in the native language, as in the case of Hong Kong, establishing semantic equivalence between the two texts seems to many an unattainable goal. If it could be proved that the goal is unattainable in theory, then a bilingual legal system would turn

L A N G U A G E ENGINEERING FOR LEGAL TRANSPLANTATION 237

out to be impossible. Thus, the viability of bilingual legislation hinges upon the possibility of establishing semantic equivalence between the two language texts of the law. The possibility of exact translation is a very controversial issue which has been heatedly debated among translation theorists as well as philosophers of language, but the possible impacts of the issue seem to have escaped the attention of those involved in legislative translation.

Of all former British colonies, Singapore is the only one that did not have to address these problems because it has retained English as the sole language of the law. Malaysia, Sri Lanka, India, Pakistan, Tanzania and other African countries have encountered the first and the second problems, and to some extent, the third problem, because they have decided to replace English with their respective native languages as the language of the law in the long run, retaining English only as an interim measure. Both Canada and Hong Kong adopt a bilingual legal system and are therefore confronted with all the problems. However Canada is a more complicated case than Hong Kong. The bilingual system exists at the federal level but the bilingual laws have to serve two legal systems, namely, the civil law system in Quebec and the common law system in the other provinces. This compounds the difficulty in producing the authentic texts in French and English.

These are important problems in language and law which concern the nature of language, translation and cultural transplants. In the course of preparing the digest, we have tackled some of these problems at great length. We have traced the evolution of English as the language of the law to its formative period in England, noting that what is now known as 'the common law' was transacted in other languages, Latin and French, throughout its childhood and youth (Roebuck, 1989, 1990) We have also compared several common law jurisdictions and found that English is not invariably the only language in which the law is transacted (Roebuck et al. 1995a, p. 159). The contention that the common law is not accessible in any language other than English has accordingly been proved to be ground- less. To explore the translatability of law and the viability of bilingual legislation, we have examined some arguments against exact translation and found that none of them are valid (Roebuck and Sin, 1993, pp. 195-204).

What we want to do in this paper is to lay bare the foundations of legal transplantation, and for that matter of cultural transplantation in general. We want to establish a point which seems to us obvious but, ironically, is often ignored by those who are not supposed to ignore it, namely, the professions of language: lawyers, linguists, translators, and philosophers. The point is simply this. No language is obliged to confine itself within its present state. Every language can always adapt itself to the changing social environment and can always augment itself by assimilating new concepts from other cultures. We hope that our inquiries can shed new light on the issues in question and clear up the conceptual confusions involved. Above all, we hope that our inquiries can help solve the problems plaguing those common law jurisdictions that have attempted to transplant the common law in their respective national languages.

Chinese as the language of the law Doubts have been cast on whether Chinese, although already accepted as an official language back in 1974, is capable of expressing common law concepts. Commenting on the future of Hong Kong's judicial independence, the South China Morning Post stated in its editorial, 'The task ahead is Herculean, particularly in converting existing laws to Chinese, a language which does not share all the nuances couched in English legalese' (8 March 1988; emphasis added). Anthony Rogers then Chairman of the Bar Association of Hong Kong and now Justice of the High Court, contends:


The Chinese language is as yet unfamiliar with and therefore does not lend itself readily to the concepts of the Common Law. Legal terms and ideas ... which could, perhaps, be easily translated to other languages such as, for example French, do not become easily translated into Chinese. It will take time to develop the necessary legal language and usage. Lawyers practising in Hong Kong, even those fully conversant with the Cantonese dialect, do not find themselves at present in a position to address courts in the local dialect on propositions of law. (Rogers, 1990, pp. 2-3)

The con ten t ion that Chinese is a l anguage incapab le o f expressing law is by no means new. Ear l ier in the cen tury W. W. Yen a l r eady r e m a r k e d tha t 'Chinese is a l anguage more a p p r o p r i a t e for the express ion o f poet ic l i terary fancies than for the conveyance o f legal and scientific t hough t ' (quo ted in Ogden, 1931 p 132). A ve rba t im repor t by H i K. W o o barr is ter , bes t exemplifies a s te reotypica l a t t i tude t ow a rds Chinese as a legal language:

Judge: But surely there must be one correct and only correct method of translating?

Counsel: My Lord, one of the most notable features of Chinese is its brevity. So much is left to be understood. It would be difficult for one man to say that his was the only correct translation.

Judge: How then can I administer the law? No wonder no one knows how to translate English to Chinese... When I come to give a decision, I can't give one which may be read in twenty different ways. (Woo, 1927, p. 126).

The not ion that Chinese is inferior to Indo-European languages has been a persistent one. 'The absence o f morpho log ica l inflection in the Chinese word , ' Wi l l i am W a n g (1991) notes, 'has confused m a n y a western observer - - leading some to conc lude that Chinese has no grammar , or that it is a language arrested in an infantile stage o f development ' (Wang, 1991, p. 359). 5 James Burnet , an influential e igh teen th-cen tury l inguist who wrote a s ix-volume treatise Of the Origin and Progress of Language, exclaimed that a people possessing such an 'extremely defective language' could never have made any progress in phi losophy (see Robins, 1990, p. 174). The absence o f the abs t rac t impersonal p ronoun ' i t ' in Chinese, Chao (1976, p. 246) reports, has p rompted Nelson T. Johnson, former US ambassado r to China, to con- clude that the Chinese are unable to consider abstract, neutral matter and consequently unable to develop natural sciences. Based on what is intended to be scientific research on the counterfactual , the Amer i can psychologis t Alf red Bloom asserts that because o f the absence o f mark ing for the counterfactual in Chinese condi t ional sentences, 'Chinese speakers might be expected typica l ly to encoun te r difficulty in ma in t a in ing a coun te r fac tua l perspect ive as an active po in t o f o r i en ta t ion for guid ing their cogni t ive act ivi t ies ' (Bloom, 1981, p. 22). 6 I f B loom had been aware tha t English s ta tutes make extensive use o f subjunct ives and counte r fac tua l s , he might have a d d e d tha t English s ta tutes would be ext remely difficult if not imposs ib le to t rans la te in to Chinese.

Exper ience elsewhere shows tha t the nat ive languages o f fo rmer British colonies have a lmos t wi thout except ion been regarded as unsui tab le for being made a na t iona l language or language o f the law. Speaking abou t the Malays ian experience, W. A. Hamzah at t r ibutes the c o m p o u n d e d difficulty o f t rans la t ing English legal concepts into Bahasa M a l a y s i a to the fact tha t the M a l a y language was 'still an undeve loped language . . . . an inadequa te l anguage for the express ion o f legal concep t s ' (quoted in Ujejski , 1989, p. 173). Similar ly, when the decision was made to use Swahili as the language o f the law in Tanganyika , A. B. W e s t o n repor ts , ob jec t ions were raised on two grounds : ' (a) Swahil i is no t capab le o f c o m m u n i c a t i n g the subtlet ies o f c o n n o t a t i o n nor the fitnesses o f de no t a t i on which is demanded o f a language to be used by a cultured, intellectual and sensitive people; and (b) Swahili does not possess the necessary technical vocabu la ry for the modern age and cannot p r oduce it overn igh t ' (Wes ton , 1965, p. 60).

LANGUAGE ENGINEERING FOR LEGAL TRANSPLANTATION 239

Arguments for the superiority of one language over another have been forcefully refuted by linguistic studies and any such claim has now become a dead horse not worth shooting. Yet the psychological causes of such a persistent prejudice are still worth noting. Commenting on the error of regarding Swahili as inferior in its expressive power, Weston observes that it is one naturally made by three classes of person:

... by the expatriate who has never used Swahili for more elevated purposes than those of the kitchen and the street and who can only see Swahili as the tongue of what he imagines to be a clumsy, rather stupid and insensitive people; by the expatriate who, though he is aware of the depths of Swahili untouched by him, would regard the loss of English as the surest guarantee of the end of the neo-colonialism in which he hopes to play a part: and by the African who, whether he knows Swahili well or not, has received his specialized training in English and to a large extent owes his present position to his superior command of English and his ability to use its specialized vocabularies. (Weston, 1965, p. 61)

Substituting 'Chinese' for 'Swahili', and 'the Chinese' for 'the African', one may perhaps see what is happening in Hong Kong.

As a matter of fact, in the process of decolonization Hong Kong has not encountered the kinds of language problem confronting many other former British colonies. Despite the efforts of the Hong Kong Government to promote English as the prestige language, Chinese has never fallen out of use in all the important aspects of social life. Cantonese, the major local dialect, is used not only in everyday conversation, but also in education, business, mass media, religion, the government, the legislature and, to a limited extent, the judiciary. 7 Written Chinese, or Modern Standard Chinese, is used in all forms of written communication not only among local Chinese citizens, but also between locals and Chinese people outside Hong Kong. With its close links with mainstream Chinese, the local language has never ceased to develop in Hong Kong, unlike the case with Swahili or Bahasa Malaysia, which were cut off from the high domains of language use until independence (see Weston, 1965, p. 62; Hamzah, p. 36). In the area of law, English-Chinese law dictionaries and Chinese books on English law are available in great numbers. Over the years a legal vocabulary, though not standardized, has been developing in Hong Kong. 8 In addition, Chinese reference materials from mainland China and Taiwan have helped build a legal language in Chinese. Neither the Bilingual Laws Project of the government nor the Digest Project has had to start in a linguistic vacuum. 9 In fact, many of the existing Chinese translations have been included as standard translations in the first volume of The English-Chinese Glossary Of Legal Terms prepared by the Legal Department of the Hong Kong Government. l° In the legal profession, local Chinese-speaking lawyers usually speak Chinese with their Chinese clients as well as among themselves, although mixing their speech with a great number of English terms and expressions, as is typical of Chinese speech in Hong Kong. All this shows that Chinese has its entrenched roots in all important aspects of Hong Kong society and it only needs to take a small step to develop into a fully fledged language of the law. The social conditions are already there.

Turning from the social factors to the language itself, let us address the question that puzzles the judge in the exchange quoted above, a question that also puzzles many Western lawyers. Baffled by the uncertainty about the meaning of certain Chinese characters on a poster during the Cultural Revolution, David Finkelstein (1970) asks a very similar question:

...How, he [the Western lawyer] must wonder, can there be such uncertainty about simple words like 'killing' and 'arrest'! Is it simply a problem of translation or are the Chinese plagued with a language which defies precise definition? The question is not a rhetorical one. If, in fact, the Chinese language and particularly the language of Chinese law, is so vague that to understand it really 'requires a well- developed sense of guessing', then how can rules be made understandable.. .? (Finkelstein, 1970, pp. 188-189). II


Two general points can be made in response to the question. First, it is hard to imagine what 'a language which defies precise definition' is like. It would be a language which is intrinsically imprecise. But that is simply a misunderstanding of the function of the word 'imprecise', and what is more, a misunderstanding of the nature of language. Elsewhere (Roebuck and Sin, 1993, pp. 198-199) we have argued that precision is not a linguistic property but a quality of linguistic performance. No word or sentence can be said to be 'precise and imprecise in itself'. A word becomes imprecise, ambiguous, vague, or obscure only when and because it is used imprecisely, ambiguously, vaguely, or obscurely. The fact that 'proper ty ' can mean what we own or how a substance behaves in particular conditions does not make it intrinsically imprecise. Indeed we often say that this word is vague and that word is ambiguous. But that has to be understood in the sense just noted. Resorting to fuzzy logic, which has made 'fuzziness' a fundamental feature of our language, will not help much. What fuzzy logic aims to show is that concepts in our ordinary language are not absolutes, i.e. there is no clear-cut distinction between 'beautiful' and 'not beautiful', 'fair' and 'unfair', 'just' and 'unjust', 'precise' and 'imprecise' etc; that between two opposites there is always a continuum of gradation, and that dichotomies simply are not true of the reality; in short, that everything is relative, a matter of degree (see Kosko, 1993, pp. 18-43). Fuzzy logic does not dispute that concepts can be made precise. Quite on the contrary, it aims to help us arrive at a more precise picture of the world. On this showing, it makes no sense to say that German is more precise than English; nor does it make any more sense to say that English is more precise than Chinese. One can criticize someone for using a particular word imprecisely, and say in an extended sense that the word is imprecise. Similarly, one can criticize the draftsman of the Qing Code ~2 for being imprecise if one finds the language vague, and say, also in an extended sense, that the Qing Code is imprecise. But to say that the Qing Code is imprecise because the Chinese language is intrinsically incapable of precision would be too hasty a conclusion for anyone to draw. So the Chinese could only be plagued with unclear law draftsmen, but not with an unclear language.

Secondly, Finkelstein might not realize that he has in fact answered his own question. What seems uncertainty in meaning to a Westerner may not be so to a Chinese. Common sense tells us that a Chinese can indeed be uncertain about the meanings of some words sometimes, but he cannot be uncertain about the meanings of all the words all the time, for such a person simply cannot survive. He must master the necessary skills, of which 'a well-developed sense of guessing' may well be one, to be able to understand the language, and absolutely correctly in case of a matter of life and death. But is this not true of any person, whatever his or her language? Is it not true that everyone requires a well-developed sense of guessing for his or her own language? The brevity of the Chinese language as noted by Woo may seem baffling to someone not familiar with the language, but blaming the language for one's bafflement is blaming Chinese for not being English. Here one should heed Foucault 's (1973, p.xv) reminder: ' the stark impossibility of thinking that' can be the limitation of one's own system of thought.

Of course the brevity of Chinese is not without its admirers. Speaking about Chinese being a 'grammarless ' language, Ruldolf Flesch remarks:

You may wonder how it is possible to talk in such a language so that other people understand you; and maybe you think this must be the most primitive, uncivilized language of the world. It would be a common error: up to about fifty years ago all language experts agreed that Chinese is the "baby talk of mankind'. They were wrong: it is the most grown-up talk in the world. It is the way people speak who started to simplify their language t| ousands of years ago and have kept it ever since, (Flesch, 1951, p, 30)


Among the world's great languages, the runner-up to Chinese is English. It's simpler, more flexible, more practical than any other Western language because it has gone furthest in losing inflections and straightening out irregularities. (Flesch, 1951, p. 38)

If we take Flesch's point, what can be more natural and suitable to express English law than Chinese, the two being the simplest languages of the world? The notorious fact that English law is written in long and convoluted sentences does not make translation into Chinese an impossible task. There are no syntactic constraints in Chinese to disallow structural complexity, only that it is not good Chinese, in much the same way legal English is not good English. Attempts to simplify legal English will definitely bring the two languages even closer, making the task much easier.

The linguist Chao observes that Chinese has eight features which make it an effective symbolic system: simplicity and elegance, a high degree of communicability, ease of production, transmission and reproduction, suitability of size, economy in number, relevance of the structure of symbol complexes to the structure of objects, discrimination between symbols and suitability of operational synonyms, and universality (Chao, 1976, pp. 84-96). ~3 As this may not be easily understood by readers who do not know Chinese, let us just point out another distinctive feature of Chinese to illustrate the advantages it has in expressing legal concepts.

Most characters in Chinese are monosyllabic morphemes, i.e. they can stand alone as smallest meaningful units. The word 'fa-lu' (law) is made up of two morphemes 0Ca meaning 'pattern', 'paradigm', 'norm', 'law', 'magic', 'supernatural power', 'dharma'; and lu, meaning 'statute', 'rule', 'restraint'). As they are free morphemes, each can combine with other morphemes to form new words. For example, )Ca' can combine with 'dian' (meaning 'standard', 'model', 'canon') to form the word 'fa-dian' (code), and 'lu' with 'shi' (meaning 'master', 'teacher') to form the word 'lu-shi' (lawyer). Interestingly. 'fa-shi' does not mean 'lawyer', but refers to a title for a Buddhist or Taoist priest. This feature makes Chinese extremely powerful in word-formation. Take a look at the Chinese words for legal terms related to property of a deceased person.

English Chinese

estate probate letters of administration personal representative will hereditament

yi-chan O'i: left behind: than: property) yi-chan-reng-zheng O'ichan: estate; reng: recognize, confirm; zheng: proof, certificate)

yi-chan-guanli-shu O, ichan: estate; guanli: manage; shu: letter, document) yi-chan-dai-li-ren (yichan: estate; dai: on behalf of; li: handle; ren: person)

yi-zhu 0'i: left behind; zhu: words, instructions) ke-jicheng-chan (ke: able; jicheng: inherit; chan: property inheritable property)

Four observations can be made about the Chinese words. First, the meaning of an English term can be represented by a combination of free morphemes selected from a large pool. This gives the translator a high degree of freedom and flexibility to form a new word to represent the meaning of its counterpart. Secondly, the meaning components of the English terms are not immediately discernible from their written forms, and in this regard the English terms are 'opaque'. One must have some legal knowledge to know the meaning of 'probate', but an average Chinese speaker can immediately tell from 'yi-chan-reng- zheng' that the word means a certain kind of evidential document related to an estate. On the other hand, while the words 'letters of administration' and 'personal representative' are trap words for an average English speaker, their Chinese counterparts 'yi-chan-guanli- shu' and 'yi-chan-daili-ren' are not deceptive at all - - both tell us that they are related to an estate. Thus, Chinese words are 'transparent', i.e. readily comprehensible and hence highly

242 KING-KU1 SIN and DEREK ROEBUCK

communicative. Thirdly, since each morpheme in a Chinese word carries its own meaning, a compound word composed of several morphemes is capable of conveying a multiplicity of meaning. For this reason Chinese is a very expressive language. Fourthly, nothing about the English terms can tell us that they belong to the same class, i.e. related to an estate, while the common morphemes of their Chinese counterparts can show this perspicuously. The family relationship of the English term is semantically represented by the Chinese words. On this showing, Chinese is a language particularly apt for concept-formation, and concept-formation is of paramount importance in assimilating a foreign culture. As will be shown later, China has over a thousand years' experience in translating Buddhist scriptures. If the Chinese language has lent itself to Buddhist concepts, there seems no good reason why it does not lend itself to common law concepts.

Bridging conceptual gaps An apparently tantalizing problem with which many former British colonies have had to come to grips is the translation of common law concepts into their respective native languages with their exact meaning preserved. Hamzah, a Malaysian legal scholar, remarks:

Legal concepts are difficult to translate from one language into another because they are identified and expressed in terms of their attendant legal idicia [sic] and bear their own particular meaning. Furthermore, legal concepts and legal terms found in a legal system reflect, and are peculiar to, the society in which that legal system exists. For example, concepts such as 'a fee simple' and 'a fee tail' in English land law are expressible only in English and cannot find their equivalents in any other language. (Quoted in Ujejski, 1989. p. 165).

The same view is shared by legal professionals in Hong Kong. Denis Chang, former chairman of the Hong Kong Bar Association. was quoted by Emily Lau as saying:

There are some English legal concepts which do not have exact Chinese equivalents. One example comes to light in the English law phrase 'in accordance with law'. The Chinese meaning is in accordance with laws passed by the legislature. In common law, the meaning is rooted in a Privy Council decision which implies a ruling must also be in accordance with the fundamental principle of natural justice. (Quoted in Lau, 1988, p. 34)

John Croxen, former Secretary General of the Law Society of Hong Kong, makes a similar point:

The task of translation is not simple. The words in which English law is expressed reflect the culture in which those laws and legal principles were enacted. Legal expressions, like other technical expressions, often become imbued with a meaning derived from judicial interpretation in literally hundreds of decided cases. Just to take one example: the expression 'merchantable quality' appears without definition in the Hong Kong Sale of Goods Ordinance. It is an important expression that consumers of domestic goods need to understand. It has been the subject of hundreds o f cases in the courts in England, and I suspect of other jurisdictions which have copied that legislation. To translate such expressions into Chinese, and there are many more like it, will not be easy. (Croxen, 1990, p. 2).

Jeremy Mathews, Attorney General of Hong Kong, elaborates on the difficulties in producing a Chinese version of legislation:

There are a number of difficulties involved in preparing Chinese language texts of legislation originally drafted in English. One of them is the lack of appropriate terms in Chinese to describe concepts that are often peculiar to the common law. For example, the word 'possession' in English law is not restricted to immediate personal possession. A person can be guilty of possessing a forbidden object if he entrusts it to another person for safe keeping on his behalf. The important element is the capacity to control the thing in question. There is no one Chinese term that adequately covers the concept. That is why in recent legislation the draf tsman coined a new Chinese term for 'possession'.

Another example is the term 'reckless'. In English law the term is used, broadly speaking, to describe conduct engaged in regardless o f the consequences. In the absence of an equivalent term in Chinese, it has been decided to, in effect, spell out the meaning of 'reckless' wherever it appears.

L A N G U A G E E N G I N E E R I N G FOR LEGAL TRANSPLANTATION 243

A final example is the English term 'offence'. The term is frequently used in legislation to describe any conduct contravening that legislation or a provision of that legislation. The legislation could deal with any subject from crimes against the person to contravention of environmental or licensing regulations. The Chinese equivalent of the term 'offence' is, however, used to describe only serious crimes, such as murder or theft. Although the matter has not yet been resolved, it maybe difficult to avoid using the relevant Chinese term given the absence of an alternative expression. (Mathews 1990, pp. 34)

We have quoted at length simply to show that there is a consensus view among lawyers on the kind of conceptual difficulties involved in translating legal concepts from one language to another. Such a view is also widely held among translation practitioners and theorists. On the face of it, the view that law, and for that matter, anything culture-laden, cannot be translated exactly from one language into another seems a most natural one to hold. As we have argued elsewhere (Roebuck and Sin, 1993) and will show below, it is, however, a mistaken view stemming from a failure to understand the working of language and a misconception of the nature of translation. In addition, many theories in linguistics, translation and philosophy have added to the confusions surrounding the problem, and some have even mystified the whole problem. Unlike many theoretical issues, which, happily, are merely a pastime for academics, having no bearing at all on the world outside university campuses, the one before us is a real issue that needs to be resolved, for it concerns the viability of preserving the common law in the manner prescribed by the constitution of the SAR, the Basic Law. I f the whole idea could be proved theoretically unviable, as many have contended, Articles 8 and 9 of the Basic Law would become incompatible and the policy on the SAR's law and language would have to be reconsidered. In that case, there would seem only two options for China. Either it could allow Hong Kong to retain the common law after 1997 with English as the sole language of the law, or it could adopt Chinese as the language of the law but replace the common law with its own law. The first option would certainly be out of the question. The retention of a ' foreign' legal system on its own soil is already a huge concession on the part of China, even though it is a compromise China has had to make. Yet excluding the language of the sovereign state from the realm of law would be absolutely unimaginable even in one's wildest dreams. Consequently the second option would be the only alternative; which is the last thing the majority of Hong Kong people would hope to happen. The predicament is an inevitable consequence of the notion of 'one law, one language'. It is really surprising that its proponents should fail to see such an obvious point.

The issue in question is totally misguided from the outset. It is common ground that, being culture bound, common law concepts do not have equivalents in the legal vocabulary of Chinese. So it is entirely pointless to labour the difficulties in finding them. To look for something that does not exist is not difficult, but simply futile. The viability of a bilingual legislative system is not, and cannot be, based on the possibility of finding a perfect match between the existing legal terminologies of the two languages concerned. 'Terminological incongruency', as a matter of linguistic fact, always exists between two legal languages (see Sarcevic 1989, pp. 277-278).

For many common lawyers, even ordinary words can create insurmountable difficulties for translation. It is easy to see why legal terms such as 'fee simple', 'estoppel' , 'mens rea', 'actus reus', 'consideration' do not have equivalents in Chinese simply because they are peculiar to the common law. But because many ordinary words have been the objects of dispute in lawsuits, they have been given judicial interpretations. There are thousands of such words in English law. 'Merchantable quality' mentioned by Croxen is a good example. 'Minerals ' in the Railway Clauses Consolidation Act of 1985 and a 'place opened, kept


or used' in the Betting Act of 1853 are two further examples that easily come to mind. Thus, English words which normally do not create any problem for translation become untranslatable because no Chinese words could have been given the specific meanings they have acquired from judicial interpretations. For this reason, many have contended that such words simply cannot find equivalents in any other language.

This brings us back to the question of equivalence. Much has been written on this question in translation theory and translation scholars seem to have reached a consensus. Newmark (1981) regards the notion of translation equivalence as a dead duck, brushing it aside as 'either too theoretical or too arbitrary' (p.x). Snell-Hornby considers the search for equivalence in translation is an illusion, concluding that 'equivalence is unsuitable as a basic concept in translation theory: the term equivalence, apart from being imprecise and ill-defined (even after a heated debate of over twenty years) presents an illusion of symmetry between languages which hardly exists beyond the level of vague approximations and which distorts the basic problems of translation' (Snell-Hornby, 1988, p. 22). In a similar vein Bell remarks that 'it is apparent, and has been for a long time indeed, that the ideal of total equivalence is a chimera' (Bell, 1991, p. 6). While not excluding the word 'equivalence' from translation theory, Hatim and Mason use it only 'in a relative sense - - that of closest possible approximation to ST [source text] meaning' (Hatim and Mason, 1990, p. 8). Very much against the trend of our time, we have tried to revive 'equivalence' as an achievable goal in translating the common law into Chinese (Sin, 1989; Roebuck and Sin, 1993). By 'equivalence' we do not mean 'closest possible approximation ' but ' total equivalence in legal meaning.' We want to argue the same point again here, but from a different angle, hoping to shed new light on the whole issue. What is more, our argument will not be ' too theoretical or too arbitrary' .

The first thing to note is that the requirement for total equivalence in legal meaning is by no means an unreasonable requirement in the case of translating the law under a bilingual legal system, for the translated text is intended to be law and is actually the law. As has been rightly emphasized by Michael Thomas, former Attorney General of Hong Kong, 'The most important principle ... in bilingual legislation ... is that both texts must convey the same legal meaning or legal message' (Thomas, 1988, p. 17). Section 10B(2) of the Interpretation and General Clauses Ordinance (Cap 1) states, 'The provisions of an Ordinance are presumed to have the same meaning in each authentic text.' But as we have shown above, many theorists maintain that there can be no theoretical justification for such a presumption.

The second thing to note is that all arguments against equivalence or exact translation are based on one point and one point only. Keenan, a most forceful opponent of 'The Exact Translation Hypothesis (ETH)' , which states that 'Anything that can be said in one natural language can be translated exactly into any other language, ' sums up the whole point as follows:

N o w we are not a rgu ing here aga ins t the c l a im tha t a l anguage wi th a l imi ted expressive power can be a u g m e n t e d ... so as to increase its expressive power. This c la im is surely true, and it t r ivial ises the ETH, which would then have to m e a n "Any l anguage can p rov ide exact t r ans la t ions of a n y t h i n g in any other l anguage if we a l low ourselves to increase its expressive power ' . The c la im we are a rgu ing aga ins t is that any two h u m a n languages , a s t h e 3 ' s t a n d , can be exact ly t r ans la ted one into the other . A n d this c la im we shal l now argue is false. The reason is tha t there are n u m e r o u s areas o f h u m a n act iv i ty which are not shared across cer ta in l anguage groups . (Keenan, 1978, p. 174; emphas i s added)

The point cannot be made more clearly. Exact translation is impossible between any two languages, as they stand. As we have pointed out, we would have no qualms about this. But this is a very trivial point, even if we do not raise the objection that exact translation


between any two languages, as they stand, is not logically impossible. Anyway, we can accept it as a linguistic fact that no existing languages have so far been found to be symmetrical and consequently exact translation is hardly obtainable between any two languages. All the arguments against exact translation merely reiterate a linguistic fact which we already know. On the other hand, what Keenan considers trivial is, in fact, a most significant point for understanding the role which translation plays in the growth of a language, namely, its function in increasing the expressive power of a language for the assimilation of a foreign culture. Furthermore, the mechanisms and devices whereby a language receives a foreign culture are a far more significant area for research than simply collecting linguistic data to prove a point which is true but trivial.

In reviving total equivalence as an achievable goal of bilingual legislation, we do not have to presuppose symmetry between English and Chinese, as Snell-Hornby has contended. We do not have to postulate the existence of the abstract entity called 'proposition' in order to establish something like the principle of 'effability' espoused by the realist Katz, which asserts that 'Each proposition can be expressed by some sentence in any natural language' (Katz, 1978, p. 209). We do not have to postulate the mentalist notion of idea (see Ogden and Richards, 1949, Ch 1) which finds its expression in different languages and serves as the ground for establishing equivalence in meaning. We do not have to subscribe to what Roy Harris (1981, pp. 9-10) calls 'the language myth' to postulate a determinate correlation between words and ideas whereby the transferability of thoughts from one mind to another, from one language community to another, and from one culture to another, is made possible. Nor do we have to postulate 'linguistic universals' as propounded by Chomsky to justify the possibility of a complete match among different languages at the deepest level of their structures. In short, we need not get tangled in all the unnecessary complexities of philosophical doctrines to be enlightened on the crux of the whole issue. All we need to do is to take a closer look at the plain and simple ways in which a language functions. As Wittgenstein (1968, s. 129) reminds us again and again, the most important things for us are always before our eyes.

Let us return to the question of conceptual difficulties. Since common law concepts do not exist in Chinese, the only way to make them accessible in Chinese is to create them, a point even Keenan (1978, p. 174) has to concede. This is actually what happens when a foreign culture is imported or transplanted to a country. Take, for example, the importation of Buddhism into China. Translation of Buddhist scriptures began around AD 67 and underwent different phases (Zhang. 1966, pp. 5-7). At first, Buddhist concepts were equated with similar concepts in the philosophy of Taoism, as it was thought that the teaching of Buddhism was close to the central ideas of Taoism. A method called ' ko- i ' (matching concepts) was used in translation, which matched Buddhist terms with Taoist terms. For instance, ' tathata' (thusness, ultimate reality) was translated as 'pen-wu' (original non-being, pure being) (Chan, 1963, p. 336). For some time Buddhism was introduced and interpreted in the light of Taoism. Of course this practice was later considered undesirable. As Buddhism developed, scriptures were re-translated ( ' ta thata ' became 'ru-shi' - - as such, thusness) and Buddhist concepts were no longer understood with reference to Taoism but in their own right.

The largest translation project was carried out in AD 645 by the scholar monk Hsuan- Tsang under the imperial patronage of the Tang government. Hsuan-Tsang had spent 16 years in India learning the language and the teaching of Buddhist scriptures and was among the first scholars who developed a systematic method of translation. His famous doctrine


of 'the five don'ts in translation' (wu bu yi) adopts the method of transliteration for five categories of Buddhist terminology: (1) terms with occult meanings; (2) terms which are polysemous; (3) terms which refer to things not existing in China; (4) terms which were conventionally transliterated in the past; and (5) terms whose transliterations produce better effects than semantic translations. Furthermore, Hsuan-Tsang's translation stays rather close to the original, sometimes even violating Chinese syntax (see Zhang, 1966, p. 21).

The translators of Buddhist scriptures not only created new terms; they also gave new meanings to existing terms. The word 'shi-jie' (world) was coined, meaning 'temporal flux and spatial dimensions'. The word 'yin-guo' (causation) combined two existing characters 'yin' and 'guo', which originally meant 'dependent upon' and 'fruit' respectively. The word 'yin-yuan' (occasion) was originally an existing term meaning 'chance', but was given the new meaning of 'immediate cause and its conducive conditions' (see Wang, 1958, pp. 521-684). The word 'seng' (monk) was an abbreviated form of the transliteration of 'Sangha'. Many of these terms have now become the basic vocabulary of Chinese and their Buddhist origin is seldom known to Chinese speakers. Translation of the literature of Christianity in China went through a very similar process.

The translation of Buddhist scriptures in China is but one of the numerous examples in the history of translation which show how a language adapts, readjusts and augments itself so that it can successfully assimilate a foreign culture. From this we can also see how little we could learn from the thesis of impossibility of exact translation. Any language, as it stands, is of course not fully equipped with the necessary devices for absorbing a foreign culture. The thesis of the impossibility of exact translation is only a good reminder for those who think it is. But no language can successfully receive a foreign culture without making itself suitable for the reception; adjustments have to be made. As long as the social forces are strong enough, it will always make itself responsive to the needs for change. Translation is almost invariably a key factor in this process.

What Feyerabend says about the incommensurability of terms of different cultures at this juncture puts the whole issue in the right perspective. He points out that there are cases where 'the conditions of meaningfulness for the descriptive terms of one language (theory, point of view) do not permit the use of the descriptive terms of another language (theory, point of view)' (Feyerabend, 1987, p. 272). These are cases where the two theories, points of view or conceptual systems in question are so different that they are simply incommensurable. The incommensurability of Buddhism and Taoism is a typical example. Many have taken Feyerabend to mean that we could not translate culture-laden terms at all (see Putnam, 1981, p. 113-119). In defending the incommensurability thesis, he describes the two ways in which the learning of a culture can take place:

... we can learn a language or a culture from scratch, as a child learns them, without detour through our native tongue .... And we can change our native tongue so that it becomes capable of expressing alien not ions (successful translations always change the medium in which they occur.. .)

Modern lexica exploit both possibilities. Instead of the semantic equations that formed the basis of older dictionaries they employ research articles o f an open and speculative nature .... Analogies, metaphors. negative characterizations, bits and pieces of cultural history are used to present a new semantic landscape with new concepts and new connections between them. Historians of science proceed in a similar way, but more systematically. Explaining, say, the notion of ' impetus ' in sixteenth- and seventeenth-century science, they first teach their readers the physics, metaphysics, technology, and even the theology of the time: in other words, they too introduce a new and initially unfamiliar semantic landscape, and then show where impetus is located in it.... (Feyerabend, 1987, p. 26; emphasis added)

While translation is not a necessary means for learning a culture, it is essential for transplanting a foreign culture in a language. Translation by way of mere linguistic matching is obviously


not adequate for that purpose. For Feyerabend, a successful translation always changes the translating language. The importance of this point cannot be over-emphasized. Conceptual gaps can never be bridged if the translating language remains static. The gaps can only be bridged by conceptual adjustments, which in turn can only be effected by linguistic manoeuvre. Furthermore, translation alone is not sufficient. Changing the language without presenting in it what Feyerabend calls a 'new semantic landscape' against which the transplanted culture has to be seen is, obviously enough, unable to facilitate understanding. The recipient has to be cognitively prepared for the new concepts. What Feyerabend says here provides us with the insight not only into successful translation but also into successful communicationY 4

Laying the foundations for a successful transplant As a matter of fact, the transplant of the common law to Hong Kong began in 1842 when the British brought it over to the colony. For over 150 years the common law has been the law of Hong Kong, the only adaptation made being the inclusion of Chinese laws and customs as existing at the time the colony was established. The transplant happening now takes a linguistic turn. The common law is to be made accessible in Chinese, a language with very different syntactic and semantic structures from English. As the receiving language, what adjustments does Chinese have to make so that it is capable of expressing the common law?

Fixing the semantic reference system It is of course natural and effortless for us to understand alien concepts in terms of

our native concepts. Being told that 'hypotheque' in civil law is similar to 'mortgage' in English law should be sufficient if we just need this piece of information for the translation of a French novel intended for a general readership, but not so if we are doing a course in comparative law. For the latter purpose, we will have to identify the similarities and differences between the two concepts: both have the same function as security for payment of debt and apply to immovables, mortgage applies also to movables but hypotheque does not, and mortgage has the legal effect of conveyance of ownership but hypotheque does not (see Sarcevic, 1989, p. 288). The two terms under comparison are referred to their respective legal systems. But if we want to translate 'hypotheque' into English and use 'mortgage' as the equivalent or exact translation for 'hypotheque', 'mortgage' will have to be understood in exactly the same way 'hypotheque' is understood in civil law. If you want to retain 'mortgage' as a common law concept, you can either use 'hypotheque' as a loan word or coin a new word for 'hypotheque', say, 'hyportgage'. For what you need in this case is the exact civil law concept of hypotheque, and no other concepts will do. Here the civil law system is used as the 'semantic reference system' for 'mortgage', 'hypotheque' , or 'hyportgage'. A semantic reference system is that which we refer to for ascertaining, determining, understanding or explaining the meaning of a word, an expression, a text, or a concept.

There are words whose meanings can only be understood in the light of some particular reference systems. For example, the term 'tie break' can only be explained with reference to the rules of tennis, and financial expressions such as 'bargain hunting' and 'profit taking' can only be understood with reference to the behaviour of investors in the stock market. There are also words which can be referred to different systems and therefore their meanings vary from system to system. The term 'space' takes on a different meaning from its meaning in Euclidean geometry when we use, say, Riemannian geometry as its semantic reference system.


As has been shown, the translation of Buddhist scriptures in China started with conceptual matching, i.e. equating Buddhist concepts with Taoist concepts, but eventually adopted the philosophy of Buddhism as the semantic reference system. That is, of course, the most sensible thing to do. For how can two terms have the same meaning if they are understood in the light of two different conceptual systems? Logically, that is the only possible situation where two terms can have the same meaning. They have the same meaning if and only if we understand them in the light of the same semantic reference system. As has been noted, no philosophical postulates or theoretical complexities are required in establishing total equivalence in meaning. Two terms are equivalent in meaning if and only if they are used in the same way, understood in the same way, and interpreted in the same way.

Two objections may be raised. First, what we have suggested is only possible in a rigid and well-defined formalized system such as that of mathematics. Of course this is not true. Most specialist terms in different languages in finance, banking technology, sport as well as natural sciences have identical meanings, not because they have been 'unified at the international level' (Sarcevic, 1989, p. 277), but because they are understood and used in accordance with the same semantic reference system. Terminological congruence is taken for granted in those fields and exact translation is never a problem there. Secondly, it may be contended that while establishing semantic equivalence is necessary for specialist terms, fixing the semantic reference scheme for culture-laden terms, such as legal terms, is rather arbitrary. It would be odd to say to an Englishman, 'Don ' t treat "mortgage" as "mortgage", but treat it as "hypotheque". ' Certainly, it would indeed be odd if this were done for no good reason at all. But if for some strange reason Britain had to do what Hong Kong has to do today, i.e. to adopt civil law as its law and produce an authentic text in English, then it would not be odd any more. The case of Hong Kong is no hypothetical case. The constitution of the SAR stipulates that the law be accessible in both Chinese and English. Since the law of the SAR is stipulated to be the common law, all common law terms in Chinese, however they are produced, must accordingly be understood with reference to the common law. In fact, this is exactly what s. 10C(1) of the Interpretation and General Clauses Ordinance (Cap 1) provides:

Where an expression of the common law is used in the English language text of an Ordinance and an analogous expression is used in the Chinese language text thereof, the Ordinance shall be construed in accordance with the common law meaning of that expression.

This is the supreme rule of interpretation for Hong Kong 's bilingual legislation. It can be easily modified to apply to any common law jurisdiction where legislation is enacted in its national language(s). 15

Returning to the remarks on the difficulties in finding exact equivalents for common law terms, we can clearly see how surprisingly little people know about the simple working of language. Take Chang's example. The expression 'in accordance with law' has a different meaning in Chinese from its meaning in English not because 'yi-fa' in Chinese and 'in accordance with law' in English are different in their linguistic meaning (dictionary meaning), but because ~fa' and ' law' refer to two different legal systems. If we follow his logic, we cannot even find a Chinese equivalent for the English word 'food' because what the Chinese eat is not entirely the same as what the English eat. To push his logic to the extreme, even the English themselves cannot have the same word for what they eat because what they eat varies from person to person. The error Croxen makes is of a somewhat different nature. For him, to translate an English word into Chinese is to translate all its meanings into a particular Chinese word. Once a word has derived specific legal meanings


from hundreds of decided cases, it will become impossible to translate both its ordinary meaning and all its legal meanings into a Chinese word, which could be an appropriate translation but for the judicial interpretations. He seems to regard the judicial interpretation as a heavy load of stuff too bulky to be packed in a single word. But the truth is: when translating, we do not translate meaning from one language into another in the same way we pour water from one cup into another. Meaning is not something we can move around.

As W. Haas observes, 'Language is no receptacle, and there is nothing to transfer' (Haas, 1962 p. 108). Rather, we coordinate a word, expression, sentence or text in one language with its counterpart in another in accordance with a chosen semantic reference system. Thus, in translating 'merchantable quality', we can simply coordinate it with the Chinese expression 'ke-shang-shou-pinzhi' (ke: able; shang: commerce, business; shou: sell; pinzhi: quality - - of such a quality as capable of being sold for commercial purposes) in the light of the linguistic meaning of the expression, namely, 'salable or marketable quality'. People will of course object that we have only translated its ordinary meaning but not its legal meaning. But its legal meaning is not hidden in the expression. It derives from all those decided cases which have given it judicial interpretations. So why cannot the Chinese expression 'ke-shang-shou-pinzhi' derive the same legal meaning from the same decided cases? Why cannot we let the common law take care of the legal meaning of the Chinese expression in exactly the same way the common law takes care of the legal meaning of 'merchantable quality'? The same consideration applies to Mathews's examples of 'possession' and 'reckless'.

So the difficulties in translating English legal terms are not insurmountable. The real difficulty lies in our seeing the need for a change in perspective. Once we realize the logical necessity of fixing the common law as the semantic reference system, the so-called conceptual difficulties will disappear. What remains is simply the technicality of linguistic manipulation.

It is worth noting that the retention of English as an official legal language is a wise policy. Political reasons aside, it provides the necessary linguistic and conceptual framework within which 'law Chinese' can best develop; for retaining the common law without retaining English, as was the case with countries like Malaysia, India and Sri Lanka, is doomed to fail. Common law concepts are no abstract entities floating around in the air. They are embodied in the entire corpus of statutes and case law, and English is the only medium through which those concepts can be accessed. The corpus is necessary as it serves as the semantic reference system for the new language of the law. It performs both a constitutive and a regulative function. That is to say, it is both constitutive and regulative of the common law meaning of the new language. The fact that Chinese has become the language of the law does not mean that it can grow out of nothing. It has to grow out of the English corpus of the law

Adjusting the language As has been shown, a language is incapable of receiving new concepts from another culture

without adjusting or changing itself. Lexical adjustment is common as the lexicon is the most flexible part of a language. In addition, it is relatively easy to effect. The importation of new concepts through borrowing is the most common form of iexical adjustment. Grammatical change happens less often because grammar is more resistant to change, or rather, because people are less prepared to change the grammar of their language. Nevertheless, Chinese grammar has undergone considerable changes since the beginning of the century, largely because of the movement of 'bai-hua-wen' (vernacular Chinese, as opposed to classical Chinese) and the close contact with Western cultures.


Lexical adjustment'in translating the common law into Chinese takes three forms. The first consists of assigning a new meaning to an existing word or expression, for example, 'dai-jia' (price), the Chinese term for 'consideration', is an existing word, but is assigned the full meaning of 'consideration'. In 'tudi-caichan' (tudi: land; caichan: property), the Chinese term for 'real property', 'tudP and 'caichan' are both existing words, but the compound word is also given the legal meaning of 'real property'. The second form consists of enlarging, narrowing or specifying the meaning of an existing word. For example, in 'ru-wu-fanfa-zui', (ru: enter; wu: house; fanfa: commit crime; zui offence), the Chinese term for 'burglary', the meaning of 'wu' is enlarged to include 'inhabited vehicles', and the meaning of 'fanfa is confined to the commission of four specific crimes (theft, criminal damage, inflicting grievous bodily harm and rape), not any crime. The third consists of coining a new word for an English term with a technical meaning. For example, 'qi-nuo' (qi: deed: nuo: promise), the Chinese term for 'covenant', which means 'promises in a deed', is a coined word. In addition, most interesting to note in this regard is that borrowing by way of transliteration is generally considered inappropriate for translating law, almost a taboo. Semantic translation is the norm. This reduces the flexibility of linguistic manipulation.

Whichever form an adjustment takes, it follows one basic principle: the principle of the least adjustment. This principle is, in essence, a principle of economy. That is to say, in choos- ing from a number of possible candidates for an English term, the one which requires the least mental effort to adjust is the best choice. For example, of the three possible candidates for 'consideration', namely, 'yue-yin' O'ue: contract; yin: cause - - meaning the cause of a contract; this translation is used in Taiwan), 'dui-jia' (dui: corresponding, right; jia: price

- - meaning corresponding or equivalent price; this translation is used in mainland China), and 'daijia' (price; adopted by the Legal Department), 'daijia' is the best choice because its meaning is readily comprehensible and not misleading, t6 In theory, one can just pick any Chinese word at random and define it to mean the same as 'consideration'. For example, we can adopt 'kaolu' (thinking about: the ordinary meaning of 'consideration') as the term for the technical term 'consideration'. But in so doing, the mental effort required is enormous. and what is more, one is not really using Chinese - - one is just using the physical shape of the two characters (kao-lu) as an arbitrary sign for 'consideration'.

Grammatical adjustment is not necessary in creating the digest. As the text is produced on the basis of drafting instructions, the digesters can avail themselves of all the syntactic devices of Chinese. On the other hand grammatical adjustment is necessary in translating legislation because of the constraints imposed by the English text. However, the adjustment is limited to the presentation form of the Chinese sentences and, in many cases, the change in the normal order of the main clauses and subordinate clauses.

Building a metalinguistic mechanism In adjusting a language to receive new concepts from another culture, we change the

meanings of certain words of the language. Such change is effected at the metalinguistic level. All conceptual changes are metalinguistic changes (cf. Feyerabend, 1987, pp. 267-268). New meanings are acquired and new concepts are formed at that level.

The best place to look for planned linguistic adjustments and changes is perhaps the translator's preface, especially when he is dealing with a difficult author. In their preface to Heidegger's Being And Time, Macquarrie and Robinson (1962) spell out their translation strategy in detail:


As long as an author is using words in their ordinary ways, the translator should not have much trouble in showing what he is trying to say. But Heidegger is constantly using words in ways which are by no means ordinary, and a great part of his merit lies in the freshness and penetration which his very innovations reflect. He tends to discard much of the traditional philosophical terminology, substituting an elaborate vocabulary of his own. He occasionally coins new expressions from older roots, and he takes full advantage of the ease with which the German language lends itself to the formation of new compounds. He also uses familiar expressions in new ways ....

We have tried in the main to keep our vocabulary under control.... We have tried to use as few English terms as possible to represent the more important German ones, and we have tried not to use these for other purposes than those we have specifically indicated. Sometimes we have to coin new terms to correspond to Heidegger's... Thus while 'tatschlich' becomes 'factual', we have introduced 'factual' to represent 'faktiseh'... (Macquarrie and Robinson 1962, pp. 13 14; emphasis added)

This is a typical example o f the me t a l anguage o f t rans la t ion . I t is an ind ispensable guide for unde r s t and ing bo th the or ig ina l work and the t rans la t ion . A reader who goes s t ra ight to the t r ans la t ion wi thou t read ing the preface will mos t p r o b a b l y find it difficult to unders tand , or, if the t r ans la to r s had no t wri t ten the preface, they should not expect their readers to unders tand their t ransla t ion. Exp lana t ion at the meta - t rans la t ion level facilitates effective communica t i on .

I f a preface o f this na tu re is needed even for the t r ans la t ion o f a single book , jus t imagine the scale o f such a metal inguist ic device needed for the t rans la t ion o f the c o m m o n law! But it is precisely such a device tha t is lacking in our legal system.

Suppos ing there is a very powerfu l c o m p u t e r which can p roduc e fast and accura te t ransla t ion o f all the legislation and law reports and the Chinese t ransla t ion will be avai lable in five minutes. Still we cannot expect it to be easily comprehensible to lawyers. Wi thou t an e x p l a n a t o r y mechan i sm at the meta l inguis t ic level, the t r ans la t ion does not mean much to them. To u n d e r s t a n d wha t changes and ad jus tmen t s have been m a d e to the Chinese l anguage in p r o d u c i n g the Chinese text o f the s ta tu tes requires a good unde r s t and ing o f the l inguist ic and concep tua l f r a m e w o r k within which the Chinese text is p roduced . There are two language gaps tha t have to be b r idged here, namely the interlingual gap between Chinese and English and the intralingual gap between ordinary Chinese and common law Chinese. A t the concep tua l level, since the c o m m o n law mean ing o f a Chinese word is ha rd ly discernible f rom the surface fo rm of the Chinese word , a concep tua l l ink has to be es tabl i shed be tween the Chinese word and its English coun te rpa r t .

In the course o f t ransla t ing the statutes, a number o f words have been coined. 'guan-you' (guan: in charge, control ; you: to have, to own) for 'possess ion ' , 'chu-suo' (chu: place; suo: loca t ion) and 'fang-chan' (fang: house; chan: prope r ty ) for 'premises', 'xin-na' (xin: to believe; na: to accept) , 'rong-shou' (rong: permit ; shou: to accept) for 'suffer ' , etc. But the t roub le is: nowhere in the legis la t ion or the G l o s s a r y can one find why and how they were coined. The concep tua l l ink between fo rm and mean ing is comple te ly missing.

A bui l t - in e x p l a n a t o r y mechan i sm is necessary, for it no t only lays down and makes explici t the pr inciples under ly ing the c rea t ion o f c o m m o n law Chinese, but it a lso facili- ta tes and even speeds up its growth . M o s t impor t an t , it makes r o o m for ra t iona l and cri t ical discussion, the best sa feguard aga ins t folly and arb i t ra r iness .

N O T E S 1 Francis Cheung, former Senior Assistant Law Draftsman of the Legal Department, Hong Kong, was one of the first Chinese officials responsible for the project. 2 As at 4 November 1995, 11,070 pages (58%) out of a total of about 19,000 pages of Hong Kong Ordinances have been translated into Chinese. The remaining 42%, though a substantial percentage, consists mainly of minor ordinances which can be dealt with at a faster pace. The government is confident that the translation of existing


legislation will definitely be completed by 1 July 1997. See Bilingual Laws Adviso O' Committee Paper No. 54/95 (Hong Kong, 1995).

3 This point has been repeatedly stressed by legal professionals. Henry Litton, now a Justice of the Court of Appeal, remarked on the impossibility of such a task when he was still in private practice: 'There seems to be broad consensus in Hong Kong that the translation of the whole of the common law into Chinese is impossible, common law being that broad body of law derived mainly from decisions of the courts in England, embodied in the law reports, and fed by sources as diverse as Australia, Canada and New Zealand .... Is it really practica- ble to do this by 30 June 1997, when sovereignty over Hong Kong reverts to China?' (Litton, 1988, p. 83).

4 Lawyers and students first made abstracts and abridgments for themselves. The first to be published was Statham in 1490. They grew into digests, which eventually became encyclopedias, the greatest becoming Halsbury (see Roebuck, 1990, pp. 119-20).

5 Wang went on to quote a remark made by Robert Chambers (1887), an influential linguist in the last century, part of which is worth quoting here: 'The Chinese ... have a language which resembles that of children, or deaf and dumb people. The sentence of short, simple, unconnected words, in which an infant amongst us at tempts to express some of its wants and its ideas - - the equally broken and difficult terms which the deaf and dumb express by signs... - - these are like the discourse of the refined people of the so-called Celestial Empire. An at tempt was made by the Abbe Sicard to teach the deaf and dumb grammatical signs; but they persisted in restricting themselves to the simple signs of ideas, leaving the structure undetermined by any but the natural, order of connexion. Such is exactly the condition of the Chinese language' (Quoted in Wang, 1991, p. 359).

6 Presumably with little no or knowledge o f Chinese, Bloom had to rely on the help of translators to render his questionnaires into Chinese. One thing he might never be told is that the Chinese translations on which his conclusions were based are extremely puzzling to ordinary Chinese speakers. For example, the question in the original English sentence reads "If all circles were large and this small triangle (a small triangle printed on the questionnaire sheet) were a circle, would it be large?' But in the Chinese translation, two different words were used for 'if.' The hypothetical ~iiaru" is used for q f all circles were large' and the implicational "ruguo" for 'if this small triangle were a circle.' In other words, a plainly hypothetical question in the English sentence appears as a question mixing the hypothetical and the implicational. No wonder the majority of Chinese respondents found it difficult to give a straightforward answer. See p. 99. The other two versions of his questionnaires also have serious translation problems. Ironical as it may seem, Bloom's findings were based on poor and misleading translations of his questionnaires, a good reminder for researchers.

7 In education, Cantonese is used in most primary schools (over 90%) as the medium of instruction, and al though the majority of secondary schools (about 90%) claim that English is their medium of instruction, code-mixing of English and Cantonese is prevailing (see Hong Kong, Education Commission, 1995, Commission of Education Report No. 6). At the tertiary level, the Chinese University of Hong Kong makes a statutory declaration that its 'principal language of instruction shall be Chinese (Cap 1109, Preamble (e)). Chinese, both Cantonese and Putonghua, is also used extensively in the other universities. In religion, church services, whether Catholic or Protestant, are mostly conducted in Cantonese, and Buddhist ceremonies are almost invariably carried out in Cantonese. In mass media, of the 20 or so newspapers, only three are in English. All 50 or so local magazines are in Chinese, except one on news about TV programmes. Al though there are English radio and TV channels serving a small proport ion of the population, the dominant media language is Cantonese. In business, while international trade is mostly conducted in English, trade with China is naturally conducted in Chinese. In the government, Chinese has been used as an official language since 1974. Use of Cantonese has been increasing for speeches at the Legislative Council. In the Judiciary, the lower courts were permitted to conduct proceedings entirely in Chinese when Chinese became an official language in 1974. In this connection, it is worth noting that Hong Kong does not fall squarely within the meaning of a diglossic society as defined by the sociolinguist. While.used in everyday conversation and for this very reason not a high language in the strictest sense, Cantonese is, as has been shown, also used in domains where only the high language of a diglossic society is supposed to be used. Thus, the status of Cantonese is much higher than is normally thought and cannot be simply brushed aside as ' the vernacular ' .

8One would have no difficulty at all in finding Chinese translations for such peculiar terms as ~estoppel', 'estover', 'fee tail', 'fee simple', "nolle prosequi'. A Chinese vocabulary of English legal terms has existed for a long time. The situation has been totally different in, say, Malaysia. Accordingly to Omar (1990, p. 11), the lack of books on law and legal terms in Malay has delayed the use of the language in the legal domain. Besides, legal professionals are not proficient in Malay and consequently unable to write books in the native language.

9 In Tanganyika, one of the very first tasks upon independence was to set up a committee for the compilation of a vocabulary of legal words and phrases in Swahili, which had to start from scratch (see Weston, 1965, pp. 62~53).

t°The Glossary contains terms and expressions from Hong Kong ' s bilingual legislation and therefore is the authoritative glossary for Hong Kong.


t l The quote in the citation is from Karlgren, (1949, p. 59).

12 The Qing Code is what is referred to in the exchange between judge and counsel cited above.

13 According to Chao, the simplicity of Chinese is mainly due to its monosyllabicity. The use of tones makes its speech sounds easy to transmit under acoustically unfavourable conditions and therefore enhances its communicability. The two-dimensional writing system of Chinese characters lends itself to easy discrimination and recognition. The use of tones and the formation of words by combining monosyllables help reduce the size of its symbols. The Chinese numerical system displays a very systematic series of symbol complexes (e.g. a numeral following 10 is additive while a numeral preceding 10 is multiplicative). The monosyllabicity of Chinese morphemes facilitates the use of operational synonyms (e.g. abbreviations and acronyms). Lastly, the fact that Chinese has a common written language, a largely uniform grammar and dialects closely related in the phonological structure makes it one of the most universal languages of the world.

14 Ironically, Feyerabend's incommensurability thesis is often taken to deny the possibility of translating culture- laden terms from one language to another. But what he says here should dispel such a misunderstanding.

15 The rule was introduced when Cap 1 was amended in 1987. It is puzzling that few legal professionals seemed aware of its existence. The remarks of Dennis Chang, John Croxen and Jeremy Mathews, Attorney General, were all made after 1987. Supposing they were aware of the provision, the only possible explanation would then be that the significance of the provision simply escaped them.

t6 Consideration is anything which the law recognizes as having economic value. It need not be adequate or equivalent to the promise (see Roebuck et al. 1995, pp. 181-182). From this we can see the Taiwan term fails to represent the meaning component 'economic value' while the mainland China term is simply misleading. To peg either of them to 'consideration' would require much greater conceptual adjustment than to adopt the Hong Kong term.

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Language engineering for legal transplantation: Conceptual problems in creating common law Chinese

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