Cultural transfer in legal translation : a case study of the translation of the common law into Chinese

Abstract

The term “cultural transfer” has featured prominently in contemporary translation theory. Yet perplexing as it may seem, the term can, and has in fact been used to, refer to two diametrically opposite concepts of translation. On the one hand, “translation as cultural transfer” can be understood as “translation as an act of cross-cultural communication effected by matching the cultural, rather than the linguistic, elements of the two languages involved.” On the other hand, “translation as cultural transfer” can also be understood as “translation as a process of importing, or even transplanting, the culture of the source language into the culture of the target language.” Understood in the former sense, translation is essentially an act of domestication, requiring no, or little, linguistic or conceptual adjustment of the target language, whereas understood in the latter sense, translation involves both linguistic and conceptual adjustment to accommodate the imported culture, thus always resulting in the foreignization of the target language. This study examines these two senses of cultural transfer in the context of law translation. Using the translation of the common law into Chinese in Hong Kong as a case study, it investigates which of the two senses is relevant to law translation, which aspect or aspects of the culture of the common law has or have been transferred, how such transfer has been effected, and what form it has taken. Through a critical analysis of the problems involved in the translating process in question, it is hoped that this study will shed some light on the question of cultural transfer, and more importantly, on the nature of legal translation. This thesis is divided into two major parts. Part I consists of four chapters that provide the theoretical framework and historical background for the study. Chapter 1 sets out the scope and methodology of this study by way of a brief critical account of studies in translation theory and legal translation. Chapter 2 traces the evolution of the concept of cultural transfer in translation theory, clarifies the opposed senses in which is understood by exploring the dichotomy of domestication and foreignization, and argues why legal translation in the context of Hong Kong cannot be a case of domestication. Chapter 3 investigates the various senses of legal culture and highlights the essential features of the legal culture of the common law. Chapter 4 gives a brief historical account of the importation of foreign laws into China since the Late Qing period (晚清) as a typical case of transfer of legal cultures, examining what such transfer involved in the process. Part II is the case study of the translation of the common law into Chinese in Hong Kong. Chapter 5 examines the translatability of the common law and analyzes the specific features of the common law language from the aspects of its terminology, legislation and case law. Chapter 6 begins with a critical analysis the problems relating to law translation in general and translating the common law into Chinese in particular. It then sets out the theoretical framework for effecting cultural transfer. It examines in detail the nature of cultural transfer in law translation with special reference to the translation of common law terminology. Chapter 7 summarizes the study and makes some concluding remarks on its significance for translation studies as well as its potential for future research.