An investigation into translation criterion and strategies——based on the English translation of ‘物证 (Wu Zheng)’

Deborah Cao’s ‘translation proficiency’ and its implication for legal translation

According to Deborah Cao’s theory, ‘translation proficiency’ is defined as the ability to mobilise translation competence to perform translation tasks in context for intercultural and interlingual communication purposes. Moreover, ‘legal translation proficiency’ refers to the ability to mobilise translation competence to perform legal translation tasks in the legal setting for intercultural and interlingual communication purposes.

Translation proficiency is described as being comprised of three sets of variables, interacting with one another in the context of situation (Cao, 1997): (1) translational language competence; (2) translational knowledge structures; and (3) translational strategic competence (see Figure 1).

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Translational strategic competence is used to describe the integrated mental ability inherent in the translation task when a translator carries out an operation on a text and employs language and knowledge competence for communicative purposes in translation (Cao, 1997).

Translational language competence is the ability to utilise, relate and mediate the SL and TL linguistic variables in the total communicative act of translating to achieve communicative goals (see Figure 2) (Cao, 1997).

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Within the present model, translational knowledge structures are defined as the knowledge that is essential to achieve interlingual and intercultural communication in translation. Translational knowledge structures include general, specialist and literary knowledge (see Figure 3). General knowledge refers to knowledge about the world. It includes knowledge about ecology, material culture, social organisation and other areas of both the SL and TL communities. Specialist knowledge is the subject knowledge that includes technical knowledge in a specialist field such as medicine, law, economics and science and technology. In legal translation, legal knowledge is the knowledge of propositions of law in a narrow sense and the knowledge of legal culture in a broad sense, including legal systems, legal order, legal institutions, history and practices and practitioners. Literary knowledge includes knowledge in such areas as the Bible, stage, film, lyric, poetic and literary works, cultural history and literary studies (Cao, 1997).

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In short, legal translation work involves translational strategic competence, translational language competence and translational knowledge structures, and these three variables interact with one another in the course of translating legal documents. The model of translation proficiency is suitable not only for general translation work but also for the work of translating legal terminology.

According to Deborah Cao’s point of view, legal terminology translation not only involves different language systems but also the unique concepts found in different legal systems in different countries. Therefore, it is not reasonable to require the perfect legal terminology translation. In reality, legal concepts from different countries are seldom, if ever, identical. It is futile to search for absolute equivalence when translating them (Cao, 1997). However, in practice, translating legal terminology is a necessity. Thankfully, finding the appropriate terms and avoiding the wrong ones is achievable. The question that arises is: How to find the appropriate translation version?

Taking Deborah Cao’s idea, it can be predicted that the appropriate translation version should not be wrong, which is the first threshold of finding an appropriate translation version which can also satisfy the requirement of translational language competence.

Next, translation versions vary under different conditions. To be more specific, when translating legal terminology, different conditions will be encountered.

These conditions can be divided into two categories. The first condition is that there are no equivalent terms in the SL and TL, irrespective of the language dimension or the concept dimension. Under this condition, legal terminology translators are supposed to fully mobilise translational strategic competence. Translators can add new words, borrow, create or introduce new legal terms. Therefore, borrowing and neologism are the translational strategic competence in non-equivalence situations. For instance, in the late 19th century and early 20th century, China borrowed many new terms from Japan. These new terms actually did not originate in Japan and were borrowed from Europe much earlier. These legal terms are ‘human rights’, ‘sovereignty’, ‘civil law’, ‘criminal law’ and ‘constitution’. Even though these terms are borrowed, created and introduced from a totally different language system, the practical application will make these terms more exclusive and accurate. Therefore, these new words can be recognised as appropriate translation version.

The second condition is that similar words exist in the SL and TL, even though they are not completely identical. Nevertheless, they may be close equivalents or partial equivalents on the language or concept dimension. In other words, the concept and usage provided by the legal systems in one language is not exactly the same in another language. Usually, these terms still need to be used in practice. However, in this situation, it must be remembered that translators are supposed to use their translational strategic competence, translational language competence and translational knowledge structure abilities flexibly. At such times, two methods may be helpful: using the corresponding term on the condition of close equivalence and enlarging the meaning of the terms on the condition of partial equivalence (Tan and Xiang, 2012). Of course, even though these terms have some equivalence on the language and concept dimension, they can not be picked randomly. The selection progress is supposed to satisfy the necessary criterion of appropriate translation. In other words, these terms chosen cannot be wrong and must have some connections in the SL and TL. At the end of the process, native speakers of the TL should not find these terms strange when using them; they will not feel confused and misunderstand the terms and will accept the translated version.

Therefore, in order to translate the legal term ‘物证(Wu Zheng)’, translators need to satisfy one criterion and can apply three strategies. The translation criterion is that the translated version should not be wrong and not make misunderstandings. The translation strategies are using the corresponding terms on the condition of close equivalence, enlarging the meaning of the terms on the condition of partial equivalence and interpreting, borrowing and creating new words on the condition of non-equivalence. With the help of one translation criterion and three translation strategies, the mistake caused by empiricism can be successfully avoided.

Should the legal term ‘物证(Wu Zheng)’ be translated as ‘material evidence’?

In Chinese, ‘物证(Wu Zheng)’ consists of two parts. One part is ‘物’, which means the ‘object’ or ‘material’ in Chinese. The second part is ‘证’, which means ‘evidence’ in Chinese. ‘物证(Wu Zheng)’ combines two elements together and refers exclusively to one typical category of evidence.

When it comes to translating the legal term ‘物证(Wu Zheng)’, legal translators whose mother tongue is not English may easily be misdirected by its literal meaning and translate the legal term ‘物证(Wu Zheng)’ into ‘material evidence’. However, can legal term ‘物证(Wu Zheng)’ be translated as ‘material evidence’? Because the translation of ‘物证(Wu Zheng)’ involves different languages and the concepts are offered by different legal systems, the process of translating ‘物证(Wu Zheng)’ is not an easy task. This translation version needs further investigation.

Take the following example from Chapter V (evidence) of the criminal procedure law of the People’s Republic of China:

Article 42

All facts that prove the true circumstances of a case shall be evidence.

There shall be the following seven categories of evidence:

Then compare this example, from the English version of a report (The case of Chinedu Ogbanna’s drug smuggling):

Public prosecutor

The Prosecutor has the following evidences to present to the court:

In this material, the legal term ‘物证(Wu Zheng)’ is also translated into ‘material evidence’.

The other five common translation versions of ‘物证(Wu Zheng)’ – analysed from the perspective of translational language competence and translational strategic competence

What, then, is the appropriate translation version of ‘物证(Wu Zheng)’? According to Black’s Law Dictionary, English–Chinese Dictionary of Anglo-American Law, Merriam-Webster’s Dictionary of Law, English–Chinese Dictionary of Law, and The English–Chinese Glossary of Legal Terms (Department of Justice, 2004), there are five other common translation versions of ‘物证(Wu Zheng)’. They are: ‘physical evidence’, ‘real evidence’, ‘exhibit’, ‘demonstrative evidence’ and ‘tangible evidence’. In order to find the most suitable and appropriate translation version, translators of legal terms could stand on the shoulder of giants, flexibly apply the translation strategies and borrow the translation versions of other regions to reduce the difficulties. For instance, people in Hong Kong and Taiwan all use Chinese as their official languages. Borrowing translation versions from Hong Kong and Taiwan will efficiently reduce the translation difficulties caused by translational language structure and translational language difference in translating legal documents. However, the legal system in Hong Kong is totally different from the legal system in mainland China, because the legal system in Hong Kong is a common law system. From this perspective, Taiwan is a better choice due to its civil law system. Moreover, Taiwan not only has the classification of criminal procedure law and civil procedure system, but also has a definition for ‘物证(Wu Zheng)’. Hence the translation version of Taiwan will be more suitable and useful.

In the English–Chinese Dictionary of Law from Taiwan, ‘物证(Wu Zheng)’ is translated as ‘physical evidence’. Apparently, people in Taiwan tend to translate ‘物证(Wu Zheng)’ into ‘physical evidence’. The following example (taken from an introduction for a course at Taiwan’s Soochow University) further proves that the common translation version of ‘物证(Wu Zheng)’ in Taiwan is ‘physical evidence’:

Forensic science has emerged as a significant element in efforts to control crime while maintaining a high quality of justice. The value of physical evidence and its analysis has been demonstrated in many ways on many occasions, and law enforcement officials have become increasingly dependent on results derived from scene search and laboratory analysis for evidence not obtainable by other avenues of investigation.

However, is ‘physical evidence’ a good translation version? First of all, Black’s Law Dictionary and Merriam-Webster’s Dictionary of Law clearly point out that ‘physical evidence’ has a synonym: ‘real evidence’. Hence, in order to analyse ‘physical evidence’, ‘real evidence’ should be taken into consideration. In Black’s Law Dictionary, ‘physical evidence’ is explained as ‘physical evidence (such as clothing or a knife wound) that itself plays a direct part in the incident in question’. In Merriam-Webster’s Dictionary of Law, ‘physical evidence’ is explained as ‘tangible evidence (as a weapon, document, or visible injury) that is in some way related to the incident that give rise to the case’. In English–Chinese Dictionary of Anglo-American Law, ‘physical evidence’ is ‘物证(Wu Zheng)’. The object itself can be used as evidence. The trial jury can directly observe what happened without an oral confession. For instance, someone’s appearance, wound, fingerprints, weapons, tools and other related staff are all ‘physical evidence’. The foreignisation principle and the comparison with ‘real evidence’ demonstrate that ‘physical evidence’ has the meaning of ‘物证(Wu Zheng)’ and can express the meaning of ‘物证(Wu Zheng)’ offered by the civil procedure law in Taiwan.

It is appropriate to translate ‘物证(Wu Zheng)’ into ‘physical evidence’ in Taiwan. Two reasons support this conclusion.

The ‘physical evidence’ in a common law system includes the meaning of ‘物证(Wu Zheng)’, which can avoid the mistake like ‘material evidence’ and satisfy the lowest translation criterion.

Besides ‘physical evidence’ and ‘real evidence’, ‘物证(Wu Zheng)’ has also other three common translation versions. These are: ‘exhibit’, ‘demonstrative evidence’ and ‘tangible evidence’.

Inheriting the UK’s tradition, Hong Kong are accustomed to translating ‘物证(Wu Zheng)’ into ‘exhibit’. In the English–Chinese Glossary of Legal Terms, ‘exhibits’ is explained as ‘证物’. Besides, the Dictionary of Law, as a dictionary published in the UK, explains ‘exhibit’ as ‘something produced to be viewed by the judge or jury, or shown to a witness who is giving evidence, or an object referred to in an affidavit (q.v.)’ and also points out that the meaning of ‘exhibit’ to some extent is same as ‘real evidence’. However, with the reference to Black’s Law Dictionary, English–Chinese Dictionary of Anglo-American Law, Dictionary of Law and The English–Chinese Glossary of Legal Terms, ‘exhibit’ refers more to the meaning of displayed product or displayed evidence. If the target readers are native English speakers, it is fine to translate ‘物证(Wu Zheng)’ into ‘exhibit’ in translating legal documents. However, if the target readers are not English, translating ‘物证(Wu Zheng)’ into ‘real evidence’ would be a better choice.

Compared with the other four translation versions, ‘demonstrative evidence’ is not as popular as the other translation versions. When readers try to seek help from dictionaries, they find no help from Dictionary of Law and The English–Chinese Glossary of Legal Terms. Fortunately, the Black Law Dictionary has an explanation: ‘physical evidence that one can see and inspect (i.e., an explanatory aid, such as a chart, map, and some computer simulations) and that, while of probative value and usu. Offered to clarify testimony, does not play a direct part in the incident in question.’ However, Black’s Law Dictionary has also demonstrated clearly that translating ‘物证(Wu Zheng)’ into ‘demonstrative evidence’ is a little bit ambiguous and requires further consideration. In Merriam-Webster’s Dictionary of Law, ‘demonstrative evidence’ is explained as ‘evidence in the form of objects (as maps, diagrams, or models) that has itself no probative value but is used to illustrate and clarify the factual matter at issue’. In English–Chinese Dictionary of Anglo-American Law, ‘demonstrative evidence’ is equated to ‘real evidence’ in a broad sense. In a narrow sense, ‘demonstrative evidence’ itself does not have probative value but can be used to clarify and illustrate controversial facts, such as maps, charts, models, photos etc. Hence, it is appropriate to translate ‘物证(Wu Zheng)’ as ‘demonstrative evidence’. Nevertheless, it is still too wide to translate in this way.

‘Tangible evidence’ cannot be found in Merriam-Webster’s Dictionary of Law and Dictionary of Law. It is be explained as ‘physical evidence that is either real or demonstrative’ in Black’s Law Dictionary. It is clearly demonstrated in English–Chinese Dictionary of Anglo-American Law that ‘tangible evidence’ is ‘物证(Wu Zheng)’. There is no specific explanation of ‘tangible evidence’ in the English–Chinese Glossary of Legal Terms, but there did exist explanations about ‘tangible’. ‘Tangible’ means ‘hypostatic’. Considering all the above dictionaries, it is feasible to translate ‘物证(Wu Zheng)’ into ‘tangible evidence’ but it is still in the minority.

To conclude, all the five common translation of ‘物证(Wu Zheng)’—’physical evidence’, ‘real evidence’, ‘exhibit’, ‘demonstrative evidence’ and ‘tangible evidence’—satisfy the lowest translation criterion. Nonetheless, taking general relevance and accuracy into consideration, ‘physical evidence’ and ‘real evidence’ are preferable. ‘Exhibit’ is extremely suitable to English readers. When it comes to the readers from other countries, the applicability of ‘physical evidence’ and ‘real evidence’ is wider than ‘exhibit’. ‘Demonstrative evidence’ and ‘tangible evidence’ lack of general applicability and ‘demonstrative evidence’ is ambiguous.

Conclusion

To sum up, even though it is difficult to find the most suitable translation for legal terms, it is feasible to find an appropriate translation version. In order to find this, legal translators need not only to fully mobilise translational language competence and translational strategic competence but also to have a thorough understanding of different legal systems. Having looked up enough dictionaries, the translators of a legal term are supposed to obey one lowest criterion: that the translation will not lead to misunderstandings, confusion and inaccuracy. In real life, translators of legal terms ought to pick their translation strategies in such a way as to find the most appropriate translation version. These strategies are: using the corresponding term on the condition of close equivalence, enlarging the meaning of the terms on the condition of partial equivalence and interpreting, borrowing and creating new words on the condition of non-equivalence.