It is apparent that law relies heavily on the illocutionary forces of language use in its applications. In particular, the use of directives and declaratives is most prominent in legislative texts which set out obligations, permission and/or prohibition.
Frederiek Bowers (1989:30-31) classifies the illocutionary forces of legislative provisions into: (1) facultative language which confers a right, privilege or power through the use of “may”; (2) imperative language which imposes an obligation to do an act through the use of “shall”; and (3) prohibitive language which imposes an obligation to abstain from doing an act through the use of “shall not”. According to Bowers (1989), “shall”, “may” and “shall not” are the main legal performative verbs function as speech acts with the illocutionary forces of permission (may), ordering (shall) or prohibition (shall not) [8].
The present study of Chinese legislation has pinpointed certain characteristics in the use of performative verbs in Chinese and has found that five types of usage in performative verbs in Chinese and has found that five types of usage in perforamtive verbs are normally employed. They are: (a) verbs preceded by “必须” (must) which is equivalent to “shall”; (b) verbs preceded by “应当/应该/应” (should) which is equivalent to “shall”; (c) verbs in the present tense without any modal verbs: verbs in the present tense without any modal verbs: zero performative; (d) verbs preceded by “可以” (may); and (e) verbs preceded by “不得” (must not) which is equivalent to “shall not” [9] (Deborah,1998:246).
The study conducted by Deborah has shown that the use of legal performatives in Chinese legislation has its own characteristics. Such characteristics place special demands on translators. This means that legal translators not only need a high level of knowledge and proficiency in two languages, including the two legal languages, but also a knowledge of the relevant legal culture in order to perform translation tasks effectively.
(1) 第三条: 经济合同,除即时清结者外,应当采用书面形式. (Deborah. 1998:246一250)
English Version l: Article 3. Economic contracts should be in a written form, except when they are fulfilled immediately.
English Version 2: Article 3. Economic contracts, except for those in which accounts are settled immediately, shall be in written form.
In terms of translation, both “必须” and “应当/应该/应” should be translated into “shall”. Usually in general Chinese, “必须” is stronger and more forceful than meaning “must”, while “应当/应该/应”, strictly “should” or “ought to” carries a sense of both being compelled to do something and also a sense of moral obligation. In this regard, “必须” is identical to “应当/应该/应” in legislative usage. There may be some reasons is for distinguishing “必须” and “应当/应该/应” in Chinese. Deborah states that one possible argument could be that “应当/应该/应” (should, ought to) implies a moral obligation in Chinese legislation as moral values and moral obligations have always been emphasized in Chinese law which contrasts with Western positivist legal culture. However, if that were to be the case, Deborah thinks that there would be difficulties in distinguishing what is moral and what is legal, especially considering the fact that two very different societies have different cultural and sometimes moral values. Therefore, it is argued that “应当/应该/应” should be translated into “shall”, instead of “should” as in the above example of legislation.
(2) 第十五条: 经济合同当事人一方要求保证的,可由保证单位担保.保证单位是保证当事人一方履行合同的关系人.
English Version: Article 15. If a party to an economic contract requests a guaranty, a guarantor unit may provide the guaranty. A guarantor unit is a concerned person that guarantees the performance of the contract by one party.
In such case, usually no problem in translation is experienced with “可以” invariably translated into “may” to signify a permissive sense.
(3) 第五条: …… 任何一方不得把自己的意志强加给对方, 任何单位和个人不得非法干预.
English Version: Article 5. In concluding an economic contract, the parties must implement the principles of equality and mutual benefit, achieving agreement through consultation and making compensation for equal value. No party may impose its will on the other party and no unit or individual may illegally interfere.
In the above cases, “No…may” in the sense of “may not” is used in the translation for “不得”. “不得” denotes a sense of prohibition and the English legal usage “shall not” might be a more preferable option here.
2. 4 Exactness in C-E translation
Nearly all texts demands preciseness let alone legal texts. Virtually, preciseness is the base which is crucial for legal texts. In his On Legal Language (《论法律的语言》), David Millin says:“Opposing themselves to‘the inherent ambiguity of language,’ lawyers make many attempts at precision of expression [10].” It happens that Henry Weihofen has made a similar statement in his book (《法律文体》): “The lawyer must be more precise in his writing than almost anyone else. Most writers can expect their work to be read in good faith, that is, with an honest desire to understand what was meant. But the lawyer must write in constant fear of what we might call the reader in bad faith, the man looking for loopholes in the contract so as to avoid 1iability for his failure to perform, the disappointed heir who wants the will read in a way that would defeat the testator’s intention, the criminal defendant who wants the statute interpreted so as not to cover his act, and all the others who will want to twist the meaning of words for their own ends”. In order to achieve exactness of reference, legal drafters spare no efforts in explaining everything clearly so that nothing disputable concerning the stipulation of rights of obligations should arise. Likewise, legal translators attach great importance to the effect of exactness in translation. Take the following for example:
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