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Chapter 1: Introduction
1.1. Aims of the study
Whenever a person thinks of law, (s)he will associate it with
complication and a sense of
hesitation. In my opinion, they are quite reasonable to have
such stereotypes.
The first reason is the language of law, as Tiersma (2000) said,
is a separate language that
differs dramatically from everyday speech. He also added that
legal language is decidedly
peculiar and hard to understand, especially for the perspective
of the lay public. The oddity of
the language is due to many Anglo-Saxon, Latin and Norman French
relics. Beside archaic
vocabulary, legal language is also famous for its lengthy and
complex sentences. Tiersma
(2000) explained that the lengthy sentences are used because
they can place all information on
a particular subject into a self-contained unit, so the
ambiguity will be reduced.
The language of law has many other features, which made it
becomes a kind of variety. The
followings parts will clarify this kind of variety.
The second reason lies in the fact that legal systems in
different countries operate not the same
way. The two most common kinds of law are common and civil law.
According to Wikipedia,
the free encyclopedia, common law is often referred to as
"judge-made-law". It requires
judges to use their discretion in making judgments. It is used
when no appropriate statute law
exists. A judges' decision may set a precedent, which must then
be followed by all lower
courts when the facts of the case are similar (Retrieved
from
http://en.wikipedia.org/wiki/Lawyer). Civil law has its roots in
Roman law, Canon law and the
Enlightenment. The legal systems in many civil law countries are
based around one or several
codes of law, which set out the main principles that guide the
law. The main difference that is
usually drawn between the two systems is that common law draws
abstract rules from specific
cases, whereas civil law starts out with abstract rules, which
judges must then apply to the
various cases before them.
The difference in legal systems is also the main obstacle for
foreigner to understand the legal
language of the other countries.
The study aims at contrasting systems of professional words
denoting titles in legal systems of
Vietnam and of other countries, mainly the United States. From
the contrast, the sameness and
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differences will be concluded, so I hope it will help Vietnamese
learners in general and law
students in particular to have proper understanding and use of
legal titles.
1.2. Methodology
In order to contrast legal titles in American legal system with
those in Vietnamese legal
system, I will adopt contrastive method suggested by James C.
(1980). The contrastive method
requires two steps:
- Step one: In this step, a full description of legal titles in
American and Vietnamese
legal system will be made.
- Step two: After the descriptive process is the comparison
stage. At this stage,
similarities and differences are inferred.
Beside contrastive method, qualitative method is used. Data from
many sources related to the
topic are collected to serve for description and comparison
stages.
1.3. Scope of the study
Since there are many titles in legal system, the study will
choose to compare professional titles
in judicial branch and only some prominent titles are selected.
It should be noted that the legal
system of the United States of America is chosen to compare with
those of Vietnamese.
The main reason explained for the differences of the two legal
systems is the legal culture of
the two countries and the study only deals with linguistic
aspect.
1.4. Significance of the study
The study will be of great help for foreign language learners as
well as for law students. It will
help them to have proper understanding of legal titles as they
can use a checklist of legal titles
as a reference source.
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Chapter 2: Theoretical background
2.1. General description of legal language
Language, as Yon Maley (1994) said in his article The language
of law, is the medium,
process and product in the various arenas of the law. Although
the law system of Vietnam and
the United States of America is not the same, the legal
languages of both systems, share some
characteristics as follows:
Legal language is often full of antiquated, archaic or
unnecessary words. It is also famous for
its definiteness, preciseness and technical words. Legal
language tends to spell things out
without painstaking attention to minute detail. In everyday
language, in order to reach our
communicative purposes, we ordinarily try to leave the obvious
unsaid, we take it for granted
that people know what we are thinking and understand what we
mean. In a legal discourse,
nothing can be taken for granted, individual significant details
must be stated explicitly.
Besides, the complexity of certain legal concepts demands a
corresponding complexity in
sentence structure. In the legal language, the structure of a
sentence can by surprisingly
complicated. Hardly can we find a simple sentence. In stead, we
often find sentences with
qualifying phrases and dependent clauses.
In the next parts, we will examine in more detail the features
of legal English and Vietnamese.
2.1.1. Characteristics of English legal language
When discussing language of law, Tiersma (2000) held the view
that legal language is strange
and often hard to understand, especially from the perspective of
the lay public. He even
classified legal language as a separate language. Lawyers, as he
said, often use long, complex
and redundant sentences, conjoined phrases, impersonal
instruction and arcane words or
phrases. The reason for the use of lengthy and complex sentences
is explained as due to the
desire to place all information on a particular topic into one
self-contained unit. Tiersma
(2000) said this tendency presumably reduces the ambiguity that
might result if conditions on
a rule or provision are placed in separate sentences.
Tiersma (2000) also added that the language of law can sometimes
be informal and versatile.
In discussing the language of law, Bhatia K. (1993) indicated
that legal language encompasses
several usefully distinguishable genres depending on
communicative purposes, the settings, or
contexts in which they are used to classify, the communicative
events or activities they are
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associated with, the social or professional relationship between
the participants bring to the
situation in which that particular event is embedded and a
number of other factors. The result
is that the author classified the language of law into many
subtypes, such as textbooks,
journals, cases, judgements, contracts, agreements, insurances,
jury instructions.
When Gonzlez (1999) wrote about ways of gripping legal language,
he also gave out some
features of the language that cause problems for learners , i.e.
grammatical and syntactical
difficulties, terminological and phraseological conventions of
the field, the differences that
hold between the legal systems, for instance, in the case of the
English-Spanish language pair.
Furthermore, students of legal English are exposed to certain
technical concepts that they
might not yet have come across in their Law course.
From discourse analysis perspective, legal text is considered
from different levels. Llopis
Mara ngeles Orts (1999) divided legal text into two main
different levels: Intra-discourse
level and Inter-discourse level.
The intra-discourse level of analysis includes the textual level
and the discourse level. At
textual level, as far as lexical terms are concerned, the text
under analysis shows the
appearance of typical features, namely technical terms or terms
of art, i.e., words specific to
the genre ( Llopis (1999)),
With regard to syntactic features, the author stated that legal
text often includes the use of
nominalization, passives, conditionals, use of unique
determiners, parallel structures, as well
as a high frequency of prepositional phrases in unusual
position.
The discourse level includes the strategies to achieve cohesion
and coherence in the text
(Llopis (1999)).Coherence is achieved in the conceptual and
formal obscurity, aimed at
being understandable to the legal specialist , to offer
clarifications about various aspects of the
policy and make it unambiguous confusing and hermetic though it
may seem to the layman
(Llopis (1999)).
From the inter-discourse level of analysis, the author noted
that most legislation has to be
understood against a background of related law, mostly common
law.
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Concluding remarks: The language of law is a kind of register,
and legal English is a mixture
of many difference antique languages of the Celt, Anglo-Saxon,
Dane, French and Latin. As a
special kind of register, it requires separate systems of
vocabulary, structure and terminology
which cause considerable challenges for non-professional
people.
2.1.2. Characteristics of Vietnamese legal language
Beside common features of legal language, Vietnamese laws have
its own characteristics. The
language of law is considered to be the most typical example of
scientific style, which is
characterized by precision and objectiveness. However, in order
to reach the preciseness,
sometimes the documents are considered to be too complicated and
hard for reader to
interpret.
Since Vietnamese itself is not clear in terms of time and tense,
some legal documents in some
cases do not indicate time and tense precisely, which causes
considerable problems when the
law is applied.
According to Anh Luu (2006), despite significant improvements,
Vietnamese legislation work
is still weak resulting in the legal system being inadequate and
unstable. Besides, the laws in
Vietnam are still inconsistent, so sometimes law terms in
different document are not
consistent. That is the reason why it is required that law terms
should be precise and popular.
(From Mt s vn v k thut son tho vn bn qppl)
There is a tendency that Vietnamese legal language uses short
sentences with a logical
sequence.
For example, the term below is a lengthy sentence and difficult
to understand. There are many
repetitions which can be eliminated. Such phrases as kinh doanh,
hng ho, dch v are
repeated many times, and the term can be shortened. The example
below is extracted form
website http://my.opera.com/mauvanban/blog/index.dml/:
The long form:
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6
" i vi hng ho, dch v kinh doanh c iu kin, cc t chc hoc c nhn
khng
c php kinh doanh m kinh doanh, hoc c php kinh doanh m trong qu
trnh kinh
doanh khng thng xuyn m bo cc iu kin qui nh cho loi hng ho, dch v
, u
coi l hnh vi kinh doanh tri php, tu theo mc vi phm s b x l hnh
chnh hoc b
truy cu trch nhim hnh s theo qui nh ca php lut hin hnh "
(Article 15 Decision 36-
CP5 January 1995 of the Government) .
And the reduced form:
" Vic kinh doanh nhng hng ho, dch v c iu kin khi khng c php
hoc
khng m bo cc yu cu qui nh i vi hng ho dch v u b coi l hnh vi
kinh
doanh tri php v c th b x l hnh chnh hoc truy cu trch nhim hnh s
tu theo mc
vi phm ".
From 90 words, the term has been reduced to 60 words but the
content is unchanged.
Vietnamese legal language is often seen as colloquial language,
as a result, some documents
are redundant. The main reason for the redundancy is that
compilers negligence and they use
many synonyms of terms.
For example:
" Hp ng kinh t l s tho thun bng vn bn, ti liu giao dch gia cc bn
k kt v
vic thc hin cng vic sn xut, trao i hng ho, dch v, nghin cu, ng
dng tin b
khoa h c k! thut v cc tho thun khc nhm mc ch kinh doanh vi s quy
nh r rng
quyn v ngh"a v ca m#i bn xy dng v thc hin k hoch ca mnh ".
(Article 1 Law on Economic Contract).
If the repetition of terms that have the same meaning is
avoided, the article will be shortened,
thus, it will make the regulation more precise and easy to
understand. In the example, the two
terms vn bn and ti liu have the same meaning.
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Concluding remarks: There are a lot of problems with Vietnamese
legal language. The
reason may be due to the fact that our legal system is still new
compared with hundreds of
years of countries like England and the United States. Our legal
language will need more time
to evolve.
2.2. Overview of Vietnamese and American legal system
2.2.1. An overview of Vietnamese legal system
According to Vietnam Union of Science and Technology
Associations website
(http://www.vusta.vn/English/law.asp), from early history,
Vietnamese feudal administrations
were quite aware that in order to reign and administer the
country they ought to set out their
law. The L, Trn and L dynasties followed that way, however, only
until the Anterior Le
and then the Nguyn, was ruling by written law attached so much
attention to. So far, the
Hng c Code (15th century) has been regarded a great and advanced
code of the
Vietnamese feudal dynasties.
Compared to that of Europe and America, the building up of the
law and governing over the
country by the law in Vit Nam were many centuries behind theirs;
only when a new State -
the Democratic Republic of Vit Nam - came into existence, was
building the new law
considered an important task of the State.
According to an article introducing legal system in Vietnam on
website
http://www.thna.com/legalsys.htm of Tran. H. N. &
Associates, legal system in Vietnam is
based on communist legal theory and French civil law, with major
modifications and additions
from Marxist-Leninist ideology.
There are many similarities to the laws of former socialist
countries, especially the former
Soviet Union. Still, some French influence also remains due to a
long colonial period from the
19th into the mid 20th century.
From the end of the 80ies the Vietnamese legal system has
undergone important changes
following the country's economic reform. Within only a few
years, the National Assembly
enacted several laws and codes replacing decrees being the only
legal basis for a long period.
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One important purport of the legislation in Vietnam is to cope
with international standards in
order to promote international transactions from and into
Vietnam.
However, Vietnamese law has not covered all fields of life or
sometimes there is overlap
between the regulations of the laws. That is the reason why
Vietnamese government is trying
hard to perfect Vietnamese legal system.
2.2.2. An overview of American legal system
According to Wikipedia - the online dictionary, the law of the
United States was originally
largely derived from the common law of the system of English
law, which was in force at the
time of the Revolutionary War. However, the supreme law of the
land is the United States
Constitution and, under the Constitution's Supremacy Clause,
laws enacted by Congress and
treaties to which the U.S. is a part of. These form the basis
for federal laws under the federal
constitution in the United States, circumscribing the boundaries
of the jurisdiction of federal
law and the laws in the fifty U.S. states and territories.
In the United States, the law is derived from four sources.
These four sources are
constitutional law, administrative law, statutes, and the common
law (which includes case
law). The most important source of law is the United States
Constitution. All other law falls
under, and is subordinate to, that document. No law may
contradict the United States
Constitution. For example, if Congress passes a statute that
conflicts with the Constitution, the
Supreme Court may find that law unconstitutional.
Notably, a statute does not disappear automatically merely
because it has been found
unconstitutional; it must be deleted by a subsequent statute.
Many federal and state statutes
have remained on the books for decades after they were ruled to
be unconstitutional. However,
under the principle of stare decisis, no sensible lower court
will enforce an unconstitutional
statute, and any court that does so will be reversed by the
Supreme Court.
Federal law in the United States originates with the
Constitution, which gives Congress the
power to enact statutes for certain limited purposes like
regulating commerce. Nearly all
statutes have been codified in the United States Code. Many
statutes give executive branch
agencies the power to create regulations, which are published in
the Federal Register and
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codified into the Code of Federal Regulations. Regulations
generally also carry the force of
law under the Chevron doctrine. Many lawsuits turn on the
meaning of a federal statute or
regulation, and judicial interpretations of such meaning carry
legal force under the principle of
stare decisis.
The fifty American states are separate sovereigns with their own
state constitutions and state
governments. They retain plenary power to make laws covering
anything not preempted by
the federal Constitution, federal statutes, or international
treaties ratified by the federal Senate.
2.3. The structure of Vietnamese and American courts
2.3.1. The structure of Vietnamese courts
According to website
http://www.country-data.com/cgi-bin/query/r-14709.html,
Vietnamese
court can be seen as the diagram below:
Vietnam's judicial bodies are the Supreme People's Court, the
local People's Courts at the
provincial, district, and city levels, the military tribunals,
and the People's Organs of Control.
It must be added that there is another name of The Peoples
Organs of Control, i.e. Supreme
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Peoples Procuracy of Vietnam. Under special circumstances, such
as showcase trials
involving breaches of national security, the National Assembly
or the Council of State may set
up special tribunals.
The Supreme People's Court is the highest tribunal and is
charged with the supervision of
subordinate courts. As a court of first instance, it tries cases
involving high treason or other
crimes of a serious nature; and as the highest court of appeals,
it reviews cases originating
with the lower courts. Appeals are infrequent, however, because
lower courts tend to act as
final arbiters.
Local people's courts function at each administrative level
except at the village level, where
members of the village administrative committees serve in a
judicial capacity. Proceedings of
local courts are presided over by hi thm nhn dn (people's
assessors). The tribunal panels
at the first instance are composed of both judges and people's
assessors (usually one judge and
two people's assessors).
The Supreme People's Organs of Control function as watchdogs of
the state and work
independently of all other government agencies, although they
are nominally responsible to
the National Assembly.
A judging council, made up of a judge and one or more people's
assessors (lay judges),
determines guilt or innocence and also passes sentence on the
convicted. The relevant people's
council appoints people's jurors, who are required to have high
moral standards but need not
have legal training.
2.3.2. The structure of American courts
American courts can be diagrammed as follows, according to
website
http://usinfo.state.gov/products/pubs/legalotln/index.htm
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The court system of the United States is more complex than that
of Vietnam The Supreme
Court is the highest court of the United States, and the only
one specifically created by the
Constitution. A decision of the Supreme Court cannot be appealed
to any other court.
Article III of the Constitution states the basis for the federal
court system: "The judicial Power
of the United States, shall be vested in one Supreme Court, and
in such inferior Courts as the
Congress may from time to time ordain and establish."
THE FEDERAL COURT SYSTEM
With this guide, the first Congress divided the nation into
districts and created federal courts
for each district. From that beginning has evolved the present
structure: the Supreme Court, 13
courts of appeals, 94 district courts, and two courts of special
jurisdiction. Congress today
retains the power to create and abolish federal courts, as well
as to determine the number of
judges in the federal judiciary system. It cannot, however,
abolish the Supreme Court.
The Supreme Court
of the U.S.
Courts of Appeals -
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based and one for
the Federal Circuit.
The U.S. Court of
Appeals for the
Federal Circuit
The Court of Military
Appeals
The 94 U.S.
District courts and
the specialized
courts, such as the
Tax Court
The Court of Federal
Claims, the Court of
Veterans Appeals, and
the Court of
International Trade.
The United States
Criminal Appeal Court
of Army, Navy,
Air Force, Marine
Corps, and Coast Guard
The court system of the United States
Federal problems
arising from states
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The power of the federal courts extends both to civil actions
for damages and other redress,
and to criminal cases arising under federal law.
The Supreme Court has original jurisdiction in only two kinds of
cases: those involving
foreign dignitaries and those in which a state is a party. All
other cases reach the Court on
appeal from lower courts.
COURTS OF APPEALS AND DISTRICT COURTS
The second highest level of the federal judiciary is made up of
the courts of appeals, created in
1891 to facilitate the disposition of cases and ease the burden
on the Supreme Court. Congress
has established 12 regional circuit courts of appeal and the
U.S. Court of Appeals for the
Federal Circuit. The number of judges sitting on each of these
courts varies considerably
(from 6 to 28), but most circuits have between 10 and 15
judges.
Below the courts of appeals are the district courts. The 50
states and U.S. territories are
divided into 94 districts so that litigants may have a trial
within easy reach. Each district court
has at least two judges, many have several judges, and the most
populous districts have more
than two dozen. Depending on case load, a judge from one
district may temporarily sit in
another district. Congress fixes the boundaries of the districts
according to population, size,
and volume of work. Some of the smaller states constitute a
district by themselves, while the
larger states, such as New York, California, and Texas, have
four districts each.
SPECIAL COURTS
In addition to the federal courts of general jurisdiction, it
has been necessary from time to time
to set up courts for special purposes. These are known as
"legislative" courts because they
were created by congressional action. Judges in these courts,
like their peers in other federal
courts, are appointed for life terms by the president, with
Senate approval.
Today, there are two special trial courts that have nationwide
jurisdiction over certain types of
cases. The Court of International Trade addresses cases
involving international trade and
customs issues. The U.S. Court of Federal Claims has
jurisdiction over most claims for money
damages against the United States, disputes over federal
contracts, unlawful "takings" of
private property by the federal government, and a variety of
other claims against the United
States.
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STATE COURTS
In America, each state is free to adopt any organizational
scheme it chooses, create as many
courts as it wishes, name those courts whatever it pleases, and
establish their jurisdiction as it
sees fit.
The state courts may be divided into four general categories or
levels: trial courts of limited
jurisdiction, trial courts of general jurisdiction, intermediate
appellate courts, and courts of last
resort.
Chapter 3: Contrasting professional titles in legal systems of
the United States and
Vietnam
3.1.1. Main titles in Vietnamese judiciary
Although the judiciary of Vietnam consists of two bodies, i.e.
the Peoples Court and the
Organs of Control, the system of titles is not complex.
According to The 2004 Civil
Procedures Code, titles of the Peoples Court consist of chnh n,
th$m phn, hi th$m
nhn dn, kim st vin, lut s, th k ta n. The power and duty of
these titles are
defined in Vietnamese law like The 2004 Civil Procedures Code
and Law on lawyers. We
will consider the roles of those titles in the following
parts.
chnh n: According to The 2004 Civil Procedures Code , chief
justice has the duty to
organize the work of resolution of legal procedures, make
decisions assigning justices or
peoples jurors, court clerks. Chief justice also has the power
to replace a judge, peoples
jurors or court clerk.
th$m phn has the power to prepare files of cases, make decisions
summoning persons
participating in trials, participate in hearings trials.
hi th$m nhn dn have the duty to study files of cases prior to
the commencement of a
trial. They also have the power to propose the chief justice or
judge to issue necessary
decisions which fall under his or her authority. They
participate in hearings of cases and vote
on issues.
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kim st vin have the responsibility to supervise the compliance
of judgements and
decisions of the court with law in trials. They also participate
in civil cases and have the power
of prosecution in criminal cases.
lut s: According to Law on lawyers, lawyers can participate in
legal proceedings as a
representative for the detained, charged or accused person, or
the person protecting legitimate
rights and interests of the victim, civil plaintiff, civil
defendant or the person who has rights
and interests in the criminal case. A lawyer can participate in
legal proceedings as the person
representation or protecting legitimate rights and interests of
the parties in civil, economic,
labor and administrative cases. They also can participate in
arbitration proceedings, provide
legal advices to clients or act as a representative for clients
to perform law-related works.
th k phin ta has the duty to carry out the preparation for
necessary professional
activities and prepare trial transcripts.
3.1.2. Main titles in American judicial branch
The North Carolina Wesleyan Colleges website
http://faculty.ncwc.edu/toconnor/justitle.htm
offers a list of job titles related to the U.S. courts. However,
not all jurisdictions may have
these positions, and most of them cannot be obtained by lateral
entry simply with a college
degree (although some of them can). Here is the list:
Arbitrator, Assistant Administrator, Assistant Prosecutor,
Background Investigator,
Bailiff, Bondsman, CJ Systems Planner, Court Clerk, Court
Reporter, Courthouse Security,
Defense Attorney, Deputy Assistant, Diversion Specialist, Expert
Witness, Grants
Administrator, Investigator, Judicial Assistant, Law Clerk,
Lawyer, Legal Research, Manager,
Mediation Specialist, Paralegal, Parole Officer, Probation
Officer, Process Server,
Sentencing Analyst, Victim Restitution
The website www.ncsonline.org offers a lot of jobs that relate
to the court. Under each title,
there are specific positions. The number of sub-positions is
very large. For example, under the
title Administrative Office of the Courts Administrators, there
are State Court Administrator,
Deputy State Court Administrator, Regional Administrator, Legal
Counsel, Judicial Conduct,
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15
Disciplinary Board Directors/Coordinators, Analysts Court,
Services Information Technology
Administration, Finance Public Relations/Information,
Administrative, Editor, Human
Resources.
Since there are a lot of titles related to the court, the paper
only mentions main titles and they
will be contrasted with those in Vietnamese in terms of semantic
field. The most basic titles
are: chief justice, judge, magistrate, juror, legal counsel,
court attorney, attorney, court clerk
and prosecutor.
The role and duty of these titles are described specifically in
websites of North Carolina
Wesleyan College and National Center of State Court.
chief justice: The Chief Justices role is to set the agenda for
the weekly meetings where
the justices review the petitions for certiorari, to decide
whether to hear or deny each case.
Power of the Chief Justice has significant influence over the
direction of the court. The Chief
Justice also writes an annual report about the federal
judiciary, which he or she presents to
Congress.
By virtue of his position, the Chief Justice is the chair of the
Judicial Conference and the
Federal Judicial Center and oversees the Administrative Office
of the U. S. Courts. These
organizations monitor different aspects of the federal
judiciary. The Chief Justice is also
honored with a position on the board of the National Gallery of
Art, the Smithsonian
Institution, and the Hirshorn Museum.
Each court in the federal system has a chief judge who, in
addition to hearing cases, has
administrative responsibilities relating to the operation of the
court. The chief judge is
normally the judge who has served on the court the longest.
Magistrate is actually a term refer to a kind of judge at
district level. The role of magistrate
is to do legal research activities at the trial court level. The
work of magistrate involves
considerable interpretation and judgment in the analysis of
legal issues in administrative law
and the areas mentioned above. (S)he performs a variety of
judicial duties in judicial system
including deciding the merits of cases, hearing and evaluating
evidence and witness
credibility, analyzing laws and rules, making findings of fact
and conclusions of law and
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16
issuing oral or written decisions and orders to resolve cases.
(S)he also provides administrative
direction for the operation of a judicial division including
supervisory accountability for
division staff, volunteers or interns.
Judge: Judges duty is to perform professional judicial duties in
interpreting and applying
the local, state and federal laws and manage the activities of
the operating of the court. (S)he
also presides over a variety of hearing including criminal
misdemeanor and traffic
arraignments, driving and curfew arraignments, criminal non-jury
trials, and pre-trial
conferences; Review requests for continuances; grant or deny
requests.
Counsel: The duties of a counsel are to provide technical legal
advice to managers,
supervisors and employees in order to avoid or minimize legal
liability, to conduct legal
research, interprets laws, rulings, and regulations for clients.
(S)he also has to prepares legal
briefs, develops strategy, arguments, and testimony in
preparation for presentation of case.
Attorney: This position entails reviewing documentation,
investigating information in
preparation for hearings, conducting hearings, and preparing
reports, minutes, reviews and
legal memorandum. The attorney also has to analyze policies and
procedures and draft
requested changes to rules and regulations. (S)he may have to
conduct legal research; draft
presentments and committee reports; prosecute matters at
disciplinary hearings; appear for
oral argument before the Supreme Court and prepare ethics.
Additional duties will include the
preparation of the Annual Report; and assisting with staff
support.
Jury and Juror: In the law, a jury is a body of citizens in a
common law jurisdiction
which decides questions of fact in a legal case. The members of
a jury are known as jurors.
In the US, the term can refer to a grand jury which issues an
indictment or a petit jury which is
present at a trial. In the United States, England and Scotland,
defendants in most serious
criminal cases have a right to trial by jury, although in
practice most criminal actions in the
US are resolved by plea bargain.
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Juries are also used in many civil cases in the United States,
and the United States Constitution
explicitly protects the right to a jury in civil as well as
criminal cases. In criminal cases, the
right to a jury trial belongs to the defendant; if the defendant
decides he or she is likely to do
better without a jury, the prosecution cannot insist on one.
The jurors then hear the cases presented by both the defense and
prosecution, and in some
jurisdictions a summing-up from the judge. They then retire as a
group to consider a verdict in
secret, which they must reach unanimously in US criminal cases.
On the rare occasions when
no unanimous decision can be reached by the jury, a mistrial is
declared, and the case must be
retried with a newly constituted jury.
Prosecutor: The prosecutors duty is presenting the case against
an individual suspected of
breaking the law in a criminal trial. However, in the United
States, attorney is often used in
stead of prosecutor.
Court clerk: The clerk maintains authority over financial
performance, staffing, budgets,
and efficient caseload processing; monitors and performs
procedures to ensure compliance
with statutory requirements, the needs of the Court, other
criminal justice agencies, and the
public, consistent with sound management principles. In addition
to management
responsibilities, the clerk often has to assist with direct
customer service tasks as needed to
provide timely public service.
3.2. Contrasting professional titles in legal systems of the
United States and
Vietnam
From the description process we have made, in the next part, we
will contrast the most
prominent titles the judiciary of Vietnam and the United State
one by one.
3.2.1. The position of judge
It can be said that there is great difference between English
and Vietnamese in system of terms
denoting legal titles in English and Vietnamese.
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18
In Vietnamese legal system, for judge position, beside the term
thm phn, there is one
synonym, i.e. quan ta. According to Vietnamese dictionary, quan
ta means a person
who hears cases in court, and it is a synonym of thm phn.
Actually, quan ta is often
used in the old days, nowadays it has colloquial meaning and
often appears in articles or
reports, not in legal documents.
An example below will show us about the use of the two terms.
The example is an extract of
an article on Vneconomy, an online newspaper:
Khi quan ta mt qun i kin...
Ngy 25/6, b Thm phn Judith Bartnoff ra bn n cui cng i vi v kin l
lng
nht sut hai nm qua M v thu ht s ch ln ca d lun: Ch tim git i
Custom Cleaners khng vi phm lut bo v ngi tiu dng ca thnh ph.
ng Roy Pearson, Thm phn Lut Hnh chnh th Washington DC. gi qun
tim git
i Custom Cleaners nh sa. Qun tht lc. Vi ngy sau, ch tim a qun ra
tr, Pearson
ni khng phi qun ca ng v do kin. ().
In the headline, the term quan ta is used, however, in the
article, the other word thm
phn is employed. The explanaion for the difference is that, the
term in the headline is often
used colloquially and it has humorous sense when it is combined
with other words mt
qun, thus it has the effect of attracting readers. The term thm
phn is used twice in the
content of the article with a serious sense to denote a title in
the courts of America.
In the language of judicial branch of the United States, we have
at least three other words
denoting the same position as thm phn. Although the word
magistrate is not very
common in America, it does exist and it denotes a judge at
district level and he only solves
less serious cases. Justice is a synonym of judge, and it
implies that judge is the one who
brings justice to the society. The word jurist is a hypernym of
judge. According to
Websters-online dictionary, it has two meanings, i.e. a legal
scholar versed in civil law or the
law of nations or a public official authorized to decide
questions bought before a court of
justice.
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19
The official title of magistrate is "United States Magistrate
Judge." A United States
Magistrate should be addressed orally and in writing, as "Judge
_______," to be consistent
with the position's judicial role and official title as
prescribed by law. Although some state
courts have a judicial officer called a "magistrate," that title
as applied to a United States
Magistrate Judge is obsolete. To address these judges simply as
"Magistrate" is akin to
improperly addressing a Lieutenant Colonel as "Lieutenant," or a
Bankruptcy Judge as
"Bankruptcy."
According to website
http://www.ilsd.uscourts.gov/proudmisc.html, the difference
between
the two terms magistrate and judge is that while district judges
are life-tenured judges
nominated by the President and confirmed by the Senate,
magistrate judges are fixed-term
judges appointed by district judges for eight-year renewable
terms via a merit selection
process.
Within guidelines set by the Congress, the judges in each
district court establish the duties and
responsibilities of their magistrate judges. The legislation
permits a magistrate judge, with the
consent of the involved parties, to conduct all proceedings in a
jury or nonjury civil matter and
enter a judgment in the case and to conduct a trial of persons
accused of misdemeanors (less
serious offenses than felonies) committed within the district,
provided the defendants consent.
There are still many other words that have semantic relations
with the two titles magistrate
and judge. For people that do not have knowledge of law, they
may not fully understand the
differences of the meaning of magistrate, jurist, justice and
judge. According to the
website http://www.websters-online-dictionary.org, the four
words have one common
meaning, i.e. to denote an official authorized to decide
questions bought before a court of
justice. However, each word has its own aspects of meaning. The
term judge can replace
the two words magistrate and justice. In fact, as we have known,
magistrate in the
America is appointed by district judge and has limited power,
only solve less serious criminal
and civil cases. The word justice has many other meanings beside
to be the synonym of
judge. The term jurist denotes someone who studies, develops,
applies or otherwise deals
with the law.
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20
We can analyse the four words semantically like this:
In
judicial
opinion
authority to
administer and
enforce law,
involved with
judiciary matters,
i.e. a justice of the
peace
Level of
administrative
working
Working in
specific
office
Popular
term in the
U.S.
Magistrate x x x x 0
Judge x x 0 0 x
Jurist x 0 0 0 x
Justice x x 0 x x
* In Vietnamese judiciary, the judge who has the highest power
in the judiciary is called
chnh n and at all levels of courts (People's District Courts and
the Supreme Court) the
head of the court is also called chnh n. However, in American
judiciary, chief justice is
only used to denote the head person of the Supreme Court. Each
court in the federal system
has a chief judge who, in addition to hearing cases, has
administrative responsibilities
relating to the operation of the court. The chief judge is
normally the judge who has served on
the court the longest. From the contrast, we can see the
difference in the way the two system
name the head person of each court level
The term chnh n has a synonym, which is an old word called Chng
L. Nowadays,
the term is not usually used in legal documents, it is often
used in newspaper.
For example, the VOA news has an article that contains the
term:
Bom n ti Venezuela, st hi ph Chng L Danilo Anderson.
Venezuela cho hay mt cuc tn cng bng bom st hi Ph Chng L Danilo
Anderson
ca nc h.
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21
Hm nay, cc gii chc Venezuela ni vi i Ting Ni Hoa K rng xc nh
c
ch c ch n l xc ngi chy en tm thy trong chic xe chnh l xc ca Ph
Chng L
Anderson. ().
Concluding remarks: The term judge in American legal system is
equivalent to thm
phn in Vietnamese. In Vietnamese, thm phn has one synonym, quan
ta, and they
have the same meaning in legal language. The only difference is
that, the former is used
officially in legal document while the latter is an old word,
and now its semantic meaning has
derived and often used in colloquial language. In American
English, judge has three
synonyms, magistrate, jurist and justice. Among these words,
only magistrate causes
problem for people to understand. It is a judge at district
level and has limited power
compared with a judge.
In another words, it can be said that, the synonyms in
Vietnamese has semantic difference
while those in English differ in functional nature denoted in
law.
The term chnh n has one synonym, chng l, which is an old word.
Due to the
difference of the two legal systems, the term chnh n in
Vietnamese is equivalent to chief
justice and chief judge in the United States.
3.2.2. The position of prosecutor
According to Wikipedia online dictionary, prosecutor is the
chief legal representative of the
prosecution in countries. The prosecution is the legal party
responsible for presenting the case
against an individual suspected of breaking the law in a
criminal trial.
In the United States, the director of offices that are
responsible for prosecution of charges may
be known by any of several names depending on the legal
jurisdiction (e.g. County Attorney,
Prosecuting Attorney (in Michigan, Indian, and West Virginia),
County Prosecutor, State
Attorney, State Prosecutor, Commonwealths Attorney (in Virginia
and Kentucky), District
Attorney, District Attorney General (in Tennessee), City
Attorney, City Prosecutor or U.S.
Attorney) and may be either appointed or elected. In order to be
appointed prosecutor,
nominees must be lawyers.
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22
So in America, the term prosecutor has one synonym called
attorney.
As we have mentioned in the previous part, in Vietnamese legal
system, there is a separate
organ to initiate criminal cases and the officer who is
responsible for the charges is called
ki!m st vin. The term ki!m st vin is sometimes translated as
procurator and
sometimes as prosecutor.
According to Websters online dictionary, procurator is a person
authorized to act for
another. However, there are still many documents employing the
term procurator to denote
the person who has the power of prosecution. Thus, in my
opinion, when we translate the term
ki!m st vin into English, the two words prosecutor and
procurator are acceptable.
Concluding remarks: The word ki!m st vin in Vietnamese legal
system is equivalent to
three words in American legal system, prosecutor, procurator and
attorney
3.2.3. The position of lawyer
In Vietnam, lut s is a general term to denote people who give
legal advice for people,
represent and other people in courts. However, gradually, there
are other terms to denote
specific functions of lawyers. For example, there is an article
named Ngh lut s kinh
doanh Vit Nam on website
http://www.nclp.org.vn/News/ykls/2005/06/779.aspx which
requires that there should be other terms to call lawyers in
Vietnam.
According to T" i!n ting Vit, the two words thy ci and trng s
are both obsolete
words, they are synonyms of lut s.
In Vietnamese modern society, the former is often used
colloquially with ironical meaning.
For example, the term thy ci is used in the title of the
following article to pillory a man
who was a lawyer that did bad things.
Hon phin ta xt x thy ci L Bo Quc
Sng 19/7, TAND t%nh Bnh D&ng a ra xt x s& th$m v n L Bo
Quc (nguyn lut
s Vn phng Lut s Ba nh, H Ni) phm cc ti: l'a o chim ot ti sn; lm
dng
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23
tn nhim chim ot ti sn; trn kh(i n&i giam gi; a hi l; lm gi
ti liu c& quan, t
chc v L c Tun (ti x ca Quc) v ti a hi l ().
(From website
http://www.vnmedia.vn/newsdetail.asp?CatId=22&NewsId=96688)
The man named L Bo Quc is a lawyer, but he exploits the title to
trick people, so he is
called thy ci.
The second synonym, trng s now rarely appears in Vietnamese
society.
For lay people, there is another term that may cause confusion
for them, i.e. lut gia. They
may use the two terms lut s and lut gia interchangeably.
According to T" i!n ting
Vit (1988), the former means people who defend other persons in
court or give legal advice
and the latter means a person who study law. Thus, in some
cases, lut s can be called lut
gia, but lut gia can not be used to denote lut s.
Nguyen, Tuyet Nhung (2006), in her article about the term lut s
in Vietnamese, said that
we can classify lawyer in two ways, according to the functions
of the lawyer and fields of
law in which the lawyer involves in . According to the functions
of the lawyer, there are two
types, i.e. lawyers who give legal advice and lawyers who plead
cases in court. Basing on the
fields of law that lawyers involve in, we have many types of
lawyers, such as environmental
lawyer, family lawyer, commercial lawyer, intellectual property
lawyer... and for lay people, it
seems easy for them to understand as there are specific words to
denote functions of the
lawyers.
In American English, for the word attorney, there is distinction
between attorney-in-fact
and attorney-at-law. Wikipedia, the online dictionary, gives
definitions of the two words as:
An "attorney-in-fact" is akin to an agent who acts on behalf of
another person, typically with
respect to business, property, or personal matters. Such an
agent does not have to be licensed
to practice law and may not need to have any license at all. By
contrast an attorney-at-law, or
lawyer, is a person trained and licensed by a relevant
jurisdiction to practice law: to represent
clients in legal matters and to give legal advice. In the United
States, the term attorney,
standing alone, generally refers to this meaning rather than
"attorney-in-fact".
There are many other synonyms of including "advocate," "lawyer,"
barrister," "civil law
notary", "solicitor, advocator, counsel, counselor, counselor,
counselor-at-law.
However, the paper will only analyse the most common words that
are often used in America
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24
and cause problems for language users, i.e. attorney, lawyer,
barrister, solicitor, counsel, and
advocate.
If we distinguish the six words attorney, lawyer, barrister,
solicitor, counsel, advocate
basing on the functions of lawyers, the result is that only
solicitor does not plead case in
court.
Among the six terms, some of them are particularly popular
language societies, for example,
attorney is often used in the United States, solicitor and
barrister are used in England.
Beside one joint sense of meaning, the term attorney has another
meaning in the United
States, i.e. it means prosecutor.
Here is the semantic analysis of the six terms:
Licensed by the state, give advice and prepare legal
document
Plead case
in court
Especially
popular in
the U.S.
Especially
popular use
in England
Especially
popular in
Scotland
Often work
for
company
Attorney x x x 0 0 0
Lawyer x x 0 0 0 0
Barrister x x 0 x 0 0
Solicitor x 0 0 x 0 0
Counsel x x x x 0 x
Advocate x x 0 0 x 0
Compared with English, the term lut s in Vietnamese does not
have many synonyms to
denote specific fields that the lawyer specializes in, which is
the result of relatively short
history of lawyer career in Vietnam. We will spend some time to
consider lawyer profession
in the United States and. Vietnam.
According to website
http://usinfo.state.gov/products/pubs/legalotln/index.htm, the
training of
attorneys and the practice of law have evolved over time in the
United States. Today
American lawyers practice in a variety of settings and
circumstances.
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25
In the early days, during the colonial period in America
(1607-1776), there were no law
schools to train those interested in the legal profession. After
the American Revolution (1775-
83), the number of lawyers increased rapidly, because neither
legal education nor admission to
the bar was very strict. The apprenticeship method continued to
be the most popular way to
receive legal training, but law schools began to come into
existence.
As the demand for lawyers increased during the late 1800s, there
was a corresponding
acceleration in the creation of new law schools. In the 20th
century, the number of people
wanting to study law increased dramatically. The number of
lawyers in the United States has
increased steadily over the past half century and is currently
estimated at more than 950,000.
America's lawyers apply their professional training in a variety
of settings. Some
environments are more profitable and prestigious than
others.
In Vietnam, according to Phan Huu Thu (2001), before 1930,
French colonialists did not allow
Vietnamese people to work as lawyers. On 25 May 1930, the
colonialist issued a decree to
establish lawyer association and Vietnamese people were allowed
to join in. During war time,
there were not much opportunities for lawyer career to develop.
There are three landmarks for
the development of lawyer career in Vietnam, i.e. the law on
lawyer issued in 1987, 2001 and
2007. According to an article WTO membership illuminates
weakness of local lawyers on
website http://english.vietnamnet.vn/reports/2006/08/599583, the
country currently has 819
organisations offering legal services, 149 branches and 653 law
offices. The numbers fall well
short of actual need. Lawyers mainly work in large cities, while
mountainous provinces like
Dien Bien and Lai Chau have far too few lawyers to even
establish their bar associations.
According to the report, the ability of these lawyers falls
short of the requirements of judicial
reforms and international economic integration. Other weaknesses
in an unclear and
incompetent legal system, the lack of lawyers specialized in the
fields of investment, business,
and trade, as well as the inability to work with court
procedures is pose serious problems for
Vietnamese lawyers.
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26
From the history and development of lawyer career in Vietnam and
in the United State, it is
easy to see that lawyer is still a new career in Vietnam and it
is still in developing ways
compared with the developed environment in the United
States.
Concluding remarks: The term lawyer has many synonyms in
English. The Websters
online dictionary gives a list of twenty-one words that can
replace the word lawyer:
attorney, legal counsel; counsel, counsellor, counsellor at law,
attorney at law; jurist, legist,
civilian, pundit, publicist, juris consult, legal adviser,
advocate; barrister, barrister at law;
King's or Queen's counsel; silk gown, sergeant-at-law, bencher;
tubman.
The variety in the ways to express the word lawyer in English
shows the professionalism of
lawyer as a career in the United States. Nguyen Tuyet Nhung
(2006) concluded that the
development of legal professions and the social structure of
lawyer are well-reflected in
language system.
3.2.4. The position of juror
hi thm nhn dn is somewhat equivalent to jurors in American legal
system. However,
the two titles are not totally the same in terms of functions
that defined in laws of the two
countries.
According to Wikipedia, the online dictionary, in the U.S. legal
system, there is distinction
between two types of jury, the grand jury and petit jury. When
used alone the term usually
refers to the latter. The grand jury is a group of men and women
convened to determine
whether there is probable cause to believe that a person has
committed the federal crime of
which he or she has been accused. Petit jurors are chosen at
random from the community to
hear evidence and determine whether a defendant in a civil trial
has liability or whether a
defendant in a criminal trial is guilty or not guilty. Federal
rules call for 12 jurors in criminal
cases but permit fewer in civil cases. The federal district
courts generally use six-person juries
in civil cases.
According to website
http://usinfo.state.gov/products/pubs/legalotln/index.htm, jury
selection
is a rather complicated process. A jury is made up from a list
of citizens living in the
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27
jurisdiction of the court. When selected, being a juror is, in
principle, compulsory. However,
jurors can be dismissed for several reasons and many people are
released from serving on a
jury. People can, for instance, claim hardship if they take care
of their children, or claim to be
biased.
In Vietnam, hi thm nhn dn at each level are lay people elected
by the People's Council
of the same level at the recommendation of the Vietnam
Fatherland Front and could be re-
elected.
According to the book S# tay hi thm (2000), hi thm nhn dn only
participate in
first instances. hi thm nhn dn are those who have good
qualities, such as loyalty to the
country, good moral, sincerity, having legal knowledge can be
elected as assessors. In
adjudication, judges and peoples assessors are independent and
only comply with the laws is
a constitutional principle. However, in reality, they are only
relatively independent from each
other due to various reasons. Under Vietnamese Constitutions,
jurors were elected for terms of
office that corresponded to that of the electing state
organ.
From the description in the previous parts, we can see the
differences between hi thm nhn
dn and jurors are as follows: hi thm nhn dn in Vietnam are not
allowed to
participate in appellate trials and in first instances, they can
give specific verdicts. In the U.S.
legal system, jurors can participate in appellate courts, but
they just have power to decide
whether there is probable cause for the accused to be subjected
to a formal trial, not to give
specific sentences.
In Vietnamese legal documents, the term hi thm nhn dn is
sometimes translated as
peoples assessors. Sometimes, the term peoples jurors are
used.
Concluding remarks: Jury in American legal system is not the
same as hi thm nhn dn
in Vietnamese. Jurors in American work somewhat differently from
Vietnamese peoples
assessors. Grand jurors in American can decide if the accused
would be tried in criminal cases.
The way of selecting jurors randomly among voters in the United
States is also different from
the way peoples assessors in Vietnam are elected .
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28
However, in some aspects, they serve the same purposes, for
preserving freedom. As the
website http://www.cato.org/dailys/12-09-98.html writes: The
purpose of trial by jury, as the
Supreme Court itself has noted, is to prevent "oppression by the
government." To perform that
role, jurors must act independently and conscientiously, and
they must be prepared to "just say
no" if they believe that a conviction would be unjust. Nothing
else satisfies the purpose of trial
by jury, or provides the protection to liberty that the Founders
intended to provide in our Bill
of Rights.
Since we have known the nature of the two terms, when we
encounter in a specific context, we
will have right understanding of them.
3.2.5. The position of court clerk
In Vietnamese legal system, there is not much to say about the
position of th k phin to.
The equivalent position in American legal system is clerk of the
court. Wikipedia, the online
encyclopedia states that clerk of the court is an officer of the
court whose responsibilities
include maintaining the records of a court. However, there are
other positions that may cause
problems for foreign language learners, i.e. judicial secretary,
judiciary secretary or law
clerk.
According to website
http://www.ncsconline.org/D_KIS/jobdeda/Jobs_Secretary(20).htm,
a
judicial secretary has the duty to screen and route telephone
calls; refer individuals to
appropriate division personnel or federal, state, county or
local agencies; answer inquiries
from the public, employees, judges, complainants, subordinates
or visitors; sort and route
correspondence and mail; operate a personal computer for
information processing; compose
routine correspondence; compile statistical data on workload
volume; record information into
computerized record keeping; file records ().
The website describes duties of a judiciary secretary as
follows: The Judiciary Secretary is
responsible for providing confidential secretarial and
administrative clerical support. (S)he
will prepare correspondence, memoranda, and reports; schedule
meetings and appointments;
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29
screen incoming calls and visitors; respond to inquiries posed
by employees, clients and a
diverse customer service population; perform other related
duties as assigned.
Wikipedia, the online dictionary notes that, the court clerk is
not to be confused with a law
clerk, as the former is essentially a secretary for the court,
while the latter is an attorney who
assists the judge in making legal determinations.
Concluding remarks: th k phin to in Vietnamese legal system is
equivalent to clerk
of the court in American English. The term in Vietnamese can be
confused with other terms
in American legal system like judicial secretary, judiciary
secretary or law clerk.
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30
Chapter 4: Implications for translating and teaching and
learning English for law
4.1. Implications for translating legal documents
4.1.1. Theories of translation
Translation has long been the theme that attracted people study
language to write about.
According to Abdellah, S. A. translation is ultimately a human
activity which enables human
beings to exchange ideas and thoughts regardless of the
different tongues used. Translation is,
in Enani's (1997) view, a modern science at the interface of
philosophy, linguistics,
psychology, and sociology.
In Abdellahs opinion, the ideal translation will be accurate as
to meaning and natural as to the
receptor language forms used. The author lists three criteria
that make an ideal translation:
Accurate: reproducing as exactly as possible the meaning of the
source text.
Natural: using natural forms of the receptor language in a way
that is appropriate to the
kind of text being translated.
Communicative: expressing all aspects of the meaning in a way
that is readily
understandable to the intended audience.
He cited from Larson (1998) that translation consists of
studying the lexicon, grammatical
structure, communication situation, and cultural context of the
source language text, analyzing
it in order to determine its meaning, and then reconstructing
this same meaning using the
lexicon and grammatical structure which are appropriate in the
receptor language and its
cultural context.
Diagram from Larson l998, p. 4
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31
That is some viewpoints of translation. In the next part, we
will consider opinions about legal
translation. According to Capellas-Espuny G. (1999), legal
translation requires very specialist
knowledge; the wording for this type of document is very exact
and can have no ambiguity.
Getting the translation of a legal document wrong can cause
confusion, frustration, undue
delay and a huge cost.
Among the problems posed by legal translation, she holds the
view that terminological
equivalence is one of keen current interest. It is a well-known
fact that legal translation as such
poses many problems due to the differences in legal systems from
one country to another. And
laws system of Vietnam and the United are not an exception.
4.1.2. Some remarks on the translation of legal titles from
English into Vietnamese
and vice versa
In the translation of document about American politics, society
and culture, Introduction to the
U.S. Legal System, which is introduced by the United States
Embassy in Vietnam, there are a
lot of terms related to legal titles.
In the document, there are eight chapters which are adapted with
permission from the book
Judicial Process in America, 5th edition, by Robert A. Carp and
Ronald Stidham, published
by Congressional Quarterly, Inc. Copyright 2001 Congressional
Quarterly Inc. In Chapter
4: Lawyers, Litigants, and Interest Groups in the Judicial
Process, there is one part named
Government Attorneys in the Judicial Process, in Vietnamese
version, it is translated as Cc
lut s ca chnh quyn trong th tc t tng. In my opinion, attorney in
this case is not
one hundred percent means lut s in Vietnamese. As we have known
in the previous part,
the term attorney is particularly popular in the United States.
It has more than one meaning,
lawyer and prosecutor. And in the next part, there are titles as
follows: Federal
Prosecutors, Prosecutors at the State Level, Public Defenders,
Other Government Lawyers,
The U.S. Department of Justic., U.S. Solicitor General, State
Attorneys General.
Thus, in this case, I think attorney in Government Attorneys in
the Judicial Process
should be translated as lut s v cng t vin.
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32
There is another case that in my opinion, there should be some
changes when the phrase U.S.
Solicitor General is translated as Tng C vn php lut Hoa K.
According to Wikipedia online-dictionary, solicitor has many
meanings: A solicitor is a
type of lawyer in many common law jurisdictions, such as the
United Kingdom, Hong Kong,
Republic of Ireland, Australia, New Zealand and Canada, but not
the United States. In most
common law countries the legal profession is split between
solicitors who represent and advise
clients, and a barrister who is retained by a solicitor to
advocate in a legal hearing or to render
a legal opinion.
The online dictionary added: For legal usage, in some U.S.
states, a "solicitor" may be the
chief legal officer of a city or town for example, a "town
solicitor," although cities in
other states simply have "city attorneys." Some counties and
states as well as the federal
government have an official known as a Solicitor General who is
actually more of an advocate
than a solicitor in the traditional British sense. In South
Carolina the term "solicitor" applies to
a circuit prosecutor. In Georgia a county solicitor general is
responsible for prosecution of
misdemeanor offenses. Historically, Georgia solicitors general
were state prosecutors. Today,
that office is known as district attorney.
It can be concluded that, solicitor has two meanings, an
advocate (lawyer who give legal
advice) and prosecutor.
In order to decide whether solicitor in this phrase means an
advocate or prosecutor, we
will check the whole context again:
U.S. Solicitor General.
The solicitor general of the United States, the third-ranking
official in the Justice Department,
is assisted by five deputies and about 20 assistant solicitors
general. The solicitor general's
primary function is to decide, on behalf of the United States,
which cases will and will not
be presented to the Supreme Court for review. Whenever an
executive branch department or
agency loses a case in one of the courts of appeals and wishes a
Supreme Court review, that
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33
department or agency will request that the Justice Department
seek certiorari. The solicitor
general will determine whether to appeal the lower court
decision.
The noteworthy thing here is that . The solicitor general's
primary function is to decide, on
behalf of the United States, which cases will and will not be
presented to the Supreme Court
for review. It means that it is the function of a
prosecutor.
Thus, in this case, U.S. Solicitor General must be translated as
Chnh n Hoa K, not
Tng C vn php lut Hoa K.
In other cases, I think the translation version is quite
accurate. For example, the phrase State
Attorneys General is translated as Cc tng chng l ca bang. Let us
consider the
context:
Each state has an attorney general who serves as its chief legal
official. In most states this
official is elected on a partisan statewide ballot. The attorney
general oversees a staff of
attorneys who primarily handle the civil cases involving the
state. Although the prosecution of
criminal defendants is generally handled by the local district
attorneys, the attorney general's
office often plays an important role in investigating statewide
criminal activities. Thus, the
attorney general and his or her staff may work closely with the
local district attorney in
preparing a case against a particular defendant. ()
However, in this case, the translator uses an old word, ch)ng l,
which may cause problem
for lay people, especially young Vietnamese people. It would be
better if it is renamed as
Chnh n.
There is another term in English that makes me think when it is
translated in Vietnamese, i.e.
magistrate. According to the definition of magistrate, the
position does all kind of tasks
like a judge. According to website
www.uscourts.gov/understand03/content_5_0.html - 18k,
the role of Magistrate Judges is to handle a wide array of
federal civil and criminal cases
nationwide. A sampling of the judicial functions performed by
Magistrate Judges
demonstrates the potential breadth of their authority: Presiding
at criminal misdemeanor jury
trials by consent of the parties and entering judgments;
presiding at criminal misdemeanor jury
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34
trials by consent of the parties and imposing sentences; retrial
case management in complex
civil cases; conducting preliminary proceedings in all criminal
cases ().
As we have seen, magistrates role is similar to a judges ones,
however, the title is not the
same as judge as it is appointed by district judges. I think
when we have to translate the
word, we should translate as thm phn ht, thm phn cp ht or thm
phn cp qun.
In chapter 2 of the document Introduction to the U.S. Legal
System, HISTORY AND
ORGANIZATION OF STATE JUDICIAL SYSTEMS, the term magistrate is
translated
as thm phn ha gii v ti!u hnh. That way of translation is a bit
long and may cause
difficulties for people to understand.
There are not many documents in Vietnamese related to legal
titles translated into English. If
available, the documents are comparatively simple.
In The 2005 civil code and The 2004 civil procedures code, legal
titles mentioned are
quite simples: judge, chief justice, peoples juror, prosecutor,
court clerk and lawyer. Even in
the draft of Law on lawyers, no synonyms of lawyer appear. It is
quite understandable as
lawyer is the most common term and it will make the document
easy to understand. Even
Model Rules for Lawyer Disciplinary Enforcement of American Bar
Association also use
only the term lawyer.
In an article introducing Decree No. 28/2007/ND-CP dated
26/02/2007 of the Government
providing in detail and providing guidelines for implementation
of a number of Articles of the
Law on Lawyers, the website www.nhquang.com uses both the term
lawyer and barrister:
Regarding remuneration of barristers participating in criminal
cases, it is stipulated
as follow: the remuneration of barristers participating in
proceedings in criminal cases shall
be agreed by the client and law office, law firm or the
individually practising barrister in
compliance with regulations of the Law on lawyers based on
working hour or all-in-one
method; however, the maximum remuneration of barristers shall
not exceed VND100,000 per
working hour and the working time of the barrister shall be
agreed between him and the
client.
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35
In cases where a barrister is appointed by litigatory agency for
a case, his payment
shall be VND120,000 per working day.
The term used in the news item is quite accurate as according to
Wikipedia online dictionary:
Barrister will usually be the lawyer who represents litigants as
their advocate before the
courts of that jurisdiction. A barrister will usually have
rights of audience in court, whereas
other legal professionals will have more limited access, or will
need to take additional
qualifications to do so. In this regard, the profession of
barrister corresponds to that part of the
role of legal professionals found in the civil law jurisdictions
relating to appearing in trials or
pleading cases before the courts.
4.1.3. Some suggestions on translating legal document
It is a fact that, in legal translation, a problem arises from
the very beginning if the translator
aims at finding the exact terminological equivalent. According
to Capellas-Espuny G. (1999),
the attribution of an equivalence to a legal term, for which no
comparable concept exists in
another legal system, can be the cause of ambiguities, confusion
and all types of
miscomprehension due to the effect the term in question produces
in the reader of the
translated text. Therefore, the difficulty of terminological
equivalence in legal translation is
reflected, above all, in the expectations of the reader from the
translated text.
Although legal titles are less complicated than other
terminology, they still pose problems for
people speaking foreign languages. As we have analysed in the
previous part, translator must
be very careful as in specific contexts, one term may has many
meanings.
In order to understand and translate precisely, translators must
grip all specific features of both
English and Vietnamese legal systems and languages.
Altay A. (2004) in his article about Difficulties Encountered in
the Translation of Legal
Texts: The Case of Turkey suggests some ways to overcome the
difficulties of translating a
term or concept using the following methods:
1) Paraphrasing
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36
This method is explaining the source language concept if it is
unfamiliar to the target reader,
when there is no equivalent institution or concept in the target
culture and when a literal
translation will make no sense.
As we have mentioned above, the translation of barrister and
solicitor is problematic,
since in the Vietnamese legal system there are no such job
titles. As we know, in the British
legal system a "barrister" is a person who executes the legal
case in courts, whereas
"solicitors" are those who declare their opinions and
recommendations to the parties in a
lawsuit and who provide contact with the barrister.
To overcome the conceptual confusion, barrister is translated as
"lut s tranh tng," meaning
the "lawyer in court," whereas "the solicitor" is translated as
" lut s t vn" which means the
"consultant lawyer."
Concepts peculiar to the Western legal and parliamentary systems
are generally translated
through paraphrasing.
2) Finding the Functional Equivalence
This is using a target language expression that is the nearest
equivalent concept. Of course it is
much more difficult to find the functional equivalent of a legal
source language term where
the legal institutions of two cultures do not have much in
common.
To quote an example that is problematic mostly for translators
between English and
Vietnamese: both "magistrate" and judge has the Vietnamese
functional equivalent of "thm
phn". Moreover, both "court" and "tribunal" are translated as "
ta n" which is the literal
translation of "court." Translation of "tribunal" as " ta n" is
rendering the functional
equivalent of it.
Using this method frequently leaves the translator short of
terminology due to the different
structures of the legal systems of the Vietnamese and American
cultures.
3) Word-for-Word (Literal) Translation
This is translating lexical word for lexical word, and making
adjustments of prepositions,
endings, and other grammatical features if necessary. For
example, Insurance Lawyer,
Divorce Lawyer, Bankruptcy Lawyer are translated as lut s chuyn
v bo hi!m, lut s
chuyn v ly hn, lut s chuyn v ph sn.
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37
Those are only some of the ways of translation. I hope that it
will help language learners when
they learn legal language.
4.2. Implications for teaching and learning English for law
It is really great challenge for both students and language
teachers of ESP to study English
legal language. For students, beside linguistics difficulties,
they have to deal with differences
in cultures. For teachers, the main problem is understanding and
finding equivalents of the
technical terminology and phraseology.
In order to help both learners and teachers of ESP studying
legal language, it needs further
studies and research to build up checklists of legal terms in
English and Vietnamese.
In this scope of this paper, I just propose some suggestions for
both teachers and students to
overcome some difficulties.
Thus, I think first of all, teachers need to devote time to
study legal systems, especially of their
own country and of English speaking countries. If they have
overall understanding of different
legal systems, they will be able to understand properly.
When we face legal terms, we should pay attention to the
contexts in which they depend on,
then we will have clues to understand them properly.
Sometimes, there are no equivalences between the terms of source
and target languages, in
these cases, we should use different ways to transfer them,
using the ways suggested in the
previous parts.
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38
Conclusion
To conclude, legal language always causes problems for people to
understand. Legal titles in
English, as an aspect of legal terminology and phraseology, also
create considerable
difficulties for Vietnamese law students when they learn foreign
language. The main reason
that makes legal titles in America and Vietnam different is that
the two legal systems belong
to two separate systems. Vietnamese law belongs to the socialist
legal system while American
law basically belongs to common law system. It should be noted
that compared to that of
Europe and America, the building up of the law and governing
over the country by the law in
Vietnam were many centuries behind theirs; only when a new State
- the Democratic Republic
of Vietnam - came into existence, was building the new law
considered an important task of
the State. Thus, the two systems, of course, have their own ways
of organizing operating
organs, which results in a lot of differences in legal titles of
the two countries.
In the paper, legal titles in the judiciary of the two countries
have been contrasted and the
results are as follows:
+ The term judge in American legal system is equivalent to thm
phn in
Vietnamese. In Vietnamese, thm phn has one synonym, quan ta,
which is an old word
and often used in colloquial language. In American English,
judge has three synonyms,
magistrate, jurist and justice. Among these words, only
magistrate causes problem for
people to understand. It is a judge at district level and has
limited power compared with a
judge.
The term chnh n has one synonym, chng l, which is an old word.
Due to the
difference of the two legal systems, the term chnh n in
Vietnamese is equivalent to chief
justice and chief judge in the United States.
+ The word ki!m st vin in Vietnamese legal system is equivalent
to three words in
American legal system, prosecutor, procurator and attorney
+ The term lawyer has many synonyms in English. The Websters
online dictionary
gives a list of twenty-one words that can replace the word
lawyer. In Vietnamese, beside
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39
lut s, there are two synonyms, thy ci and trng s, but only lut s
is used in
formal legal documents. The variety in the ways to express the
word lawyer in English
shows the professionalism of lawyer as a career in the United
States. Nguyen Tuyet Nhung
(2006) concluded that the development of legal professions and
the social structure of lawyer
are well-reflected in language system.
+ Jury in American legal system is not the same as hi thm nhn dn
in
Vietnamese. Jurors in American work somewhat differently from
Vietnamese peoples
assessors. Grand jurors in American can decide if the accused
would be tried in criminal cases.
The way of selecting jurors randomly among voters in the United
States is also different from
the way peoples assessors in Vietnam are elected. However, in
some aspects, they serve the
same purposes, for preserving freedom.
+ th k phin to in Vietnamese legal system is equivalent to clerk
of the court in
American English. The term in Vietnamese can be confused with
other terms in American
legal system like judicial secretary, judiciary secretary or law
clerk.
The differences of legal titles of Vietnam and the United States
cause a lot of challenge for
Vietnamese language learners. There are some solutions to the
above problems, i.e. we can
paraphrase the term, find the functional equivalence or we can
translate the terms literally.
For teachers and students of ESP, in order to grasp legal
language successfully, they are
required to devote a lot of time and effort. Teachers can help
students by building up check
lists of terminology in English and Vietnamese.
Proposal for further research
Language of law is really complex and it should be considered a
kind of register. Thus, the
scope of the study can be further extended by investigating
about:
- Analysis of legal language in different law fields.
- From the analysis, building up lists of equivalent terminology
and phraseology in
English and Vietnamese.
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40
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