Over the past several decades, social scientists have identified a concept essential to correct Chinese legal translations, known as a community of practice. Indeed, failure to assess and understand the relevant community of practice behind the translations leads to Chinese translations looking like a foreign, alien language.
Beverly Wenger-Trayner defines a community of practice as “a group of people who share a concern or a passion for something they do and learn how to do it better as they interact regularly.” A good example of communities of practice can be found in financial regulation, where stockbrokers form one professional community and tax advisors another. If you look at the regulations for stockbrokers, you will see businesses being referred to as a “company,” whereas the internal revenue code used by tax advisors calls the exact same thing an “entity.” The community of practice has huge implications.
In a public company, a discussion of members will generally be about things like a club membership, where members may pay monthly fees but do not own the company. If you tell a tax advisor that a company is run by members, the advisor will immediately know that “membership” refers to investors that can elect to operate as partners or as shareholders. Attorney Dan Harris previously pointed out that Chinese translators found this distinction so difficult that an American LLC could never successfully launch a business in China if a Chinese translator was involved. Back in those days, translators were considered the Sarin nerve gas of international trade: getting near a translator meant instant paralysis and death for your business venture, and every business had a plan to ensure the toxic translators never got in. In Japan and Hong Kong, legislators even rewrote the entire LLC law just to insulate businesses from toxic translator risks arising solely from the fact these translators could not tell the stockbroker community of practice apart from the business entity formation and tax advisory community of practice.
You can find lots of links about the community of practice concept online. In the following section, I’ll describe a useful case study that shows how this analysis should be used in a Chinese legal translation.
Single Window vs. Single Portal
A number of ASEAN countries and China met together at conferences in the last several years and came up with something they called a “single window” for international trade regulation. The idea proved very popular and gained worldwide support over the next few years. So much so that even the President wrote an executive order to implement a “single window” process. However, if you start looking for regulatory history after the initial executive orders, the single window concept begins to disappear from the record. What happened? When Congress called its experts together to discuss launching a single window system in the United States, they objected that the terminology “single window” would be highly confusing to the public and even practitioners. They replaced it with the terminology “single portal,” which refers to a single internet portal where everything for international trade can be accomplished in one place.
As it turned out, the ASEAN association didn’t really come up with the single window concept— it was actually borrowed from the United States itself and simply took a long trip around the world to Asia, wound its way through diplomacy and the State Department, fell on the President’s desk, and finally into US law. A large number of American states had already launched “one-stop” internet portals where citizens could handle all of their governmental requirements in one place. Moreover, a close inspection of those internet portals and comparison to the “single window” websites seen across Asia shows that the US government portals and the Asian “windows” contain the same content and are even organized similarly. A typical native English speaker knows that, in computing, a “portal” is a single page that connects you to all other content, but a “window” is typically part of the operating system. That is, a user can open different programs in different windows. Translators in Asia caused great confusion by choosing the wrong term.
Looking at the way the translation was done, several Asian languages use a different metaphor for a web portal than English does. A “portal” traditionally refers to a door or opening that can be walked through, whereas Asian languages use “windows” as their metaphor, thinking of something like a service counter window. Translators of Asian languages frequently choose to translate the metaphor, not the meaning of the word, which has drawn decades of complaints. Nevertheless, less-experienced translators still say they think this is the right way to translate things, citing Mao Zedong’s “paper tiger” in support. However, very few metaphors can be directly translated, and something obscure like this is a poor candidate. Regardless, the diplomatic community accepted the term even if the professional community would later reject it.
The “single window” concept is illuminating for community of practice issues because it’s a rare case where a word-for-word translation from an Asian language was, for a time, adopted and even used by the White House. Looking at the discussion among diplomats about the single window system, it seems that it had been described by Asian countries in such a highly distinctive way that the diplomats and the Asian countries were not exactly on the same page. That is, the Asian countries were using language about something very familiar and tried-and-true: a one-stop-shop internet portal like many governments already have. The “single window” translation seems to have slowed down the concept’s adoption from its initial adoption during the height of the dot-com boom to over a decade later when the White House used it in an executive order, after which Congress transformed it to “single portal.”
Interestingly, the international diplomatic community continues to use the word “single window,” whereas English-speaking countries’ expert communities have transitioned to “single portal.” For example, the recent United Nations documents on the subject still refer to the ”single window” concept. In Chinese, there is only one word for the concept, not two words, but there are now two different target translations for Chinese. I believe the fact that United Nations and diplomatic documents refer to the “single window” concept says something important about the diplomat community of practice. For the most part, foreign service officers are on generalist career tracks, and diplomats are expected to be non-experts in any particular field.
Second, according to State Department inspectors’ reports, diplomats’ Asian language skills are highly limited, which means they have to rely on translators. The specific English language used within the diplomats’ community of practice is therefore typified by being non-expert and translator-dependent. This can explain why a poorly understood term like “single window” could drift around in the diplomatic community for so many years yet, when adopted domestically, be immediately renamed by experts whose daily work literally revolves around this one concept. For a diplomat reading a Briefing on an international affairs concept and going from “zero knowledge” to “talking points” in a very small space of time, incorrect terminology won’t even be noticed. However, the community of practice involving experts absolutely cannot understand the terminology. In surveys of experts who use translation, incorrect terminology is usually one of the biggest problems those experts say they experience.
For Chinese legal translators to be familiar with the correct language used in a particular situation and not cause chaos and confusion with word-for-word translations, there is no substitute for extensive familiarity and exposure to authentic language material in the relevant domain. Completing a translation project on a niche field will usually require familiarization with the specific niche. Legal translators can also check their work by using statistical methods on terminology candidates.
CADS Statistical Methods
Legal translators deriving new terminology candidates can verify whether they are correct by using the more recent Computer Assisted Discourse Studies methods to determine if the language is indeed used in the relevant field. While the CADS subject is a large one, it can be summarized as using linguistic corpora software to determine the features of particular types of discourse. A commonly used software platform is SketchEngine, which is capable of analyzing millions of words to see when and how particular phrases are used and allows for quick analysis of how these words are used. For example, “single window” appears primarily in diplomatic contexts, whereas “single portal” appears primarily in domestic government administration contexts. From this, you can infer that “window” is part of a diplomatic conversation, whereas “portal” is part of government administrators’ conversations, based solely on what kind of documents it appears in.
For a typical Chinese legal translator, the primary relevance of CADS is what I call the “human history” test, which I apply when auditing the accuracy of translations for major corporations. Almost all corporations fail this test when translating from Chinese to English, despite the absurdity of the situation. The “human history” test asks, “has the proposed phrase ever occurred naturally through genuine communication at any time and any place by any person in all of human history?”
A good example provided by Victor Mair is the phrase “lodge solemn representations,” which frequently appears whenever China makes a serious complaint to a foreign government for violation of an international convention or treaty. By searching through corpus material, you can quickly see that the phrase appears exclusively in translator-mediated communication; that is, the phrase never appears except as a translation or a report of what a translation says. The phrase “lodge solemn representations” and not “make a serious complaint” is used because the Chinese uses the highest formality level whereas “complaint” is used at the lowest formality levels, and the logic of word-for-word translation from Chinese to English demands inventing an entirely new phrase. Thus, a translator can distinguish between translator-invented language and naturally occurring language in a matter of minutes by scanning linguistic corpora to determine genre and colocations. A quick and easy trick for translating Chinese to English is to generate statistics on how many document-level colocations there are with China. If 100% of the matches are for China, the reality will be that they are all translator-invented and that the proposed translation fails the “human history” test.
Conclusion
In this article, I introduced the concept of communities of practice specifically for Chinese Legal Translation. In the case study on the introduction of the “single window” system for import/export law, we saw how the community of diplomats used the term “single window,” whereas government administration experts working on the project dropped that term and used “single portal,” which is more consistent with the rules of the English language. A legal translator who uses diplomatic language with experts in fields other than diplomacy is unlikely to be understood, much less accepted. Finally, in order to increase productivity, I recommend translators automate the process of identifying the community of practice for proposed terms by applying the data analytics techniques now known as computer-aided discourse analysis.
