This study explores the issues of using shall in the English translation of Korean statutes with reference to the speech act theory. As the most important performative marker for indicating obligations in legal discourse, shall has assumed almost a ...
This study explores the issues of using shall in the English translation of Korean statutes with reference to the speech act theory. As the most important performative marker for indicating obligations in legal discourse, shall has assumed almost a “biblical status” in legal English for centuries(Gidová 2012). However, it has also been used in expressing constitutive rules and other declarative forces in English statutes, thus creating difficulties in interpretation of its intended illocutionary forces. Due to the efforts to modernize legal English over the past few decades by Plain Language advocates, shall is now increasingly used for imposing obligations on animate subjects only(“American Rule”), or totally replaced by other verbal constructions such as must, is/are to, and the simple present as in the legislation of U.K and many other common law countries(“ABC Rule”).
Although the frequencies and distributions of legal shall used in English-speaking jurisdictions are not even, this so-called “modal revolution(Williams 2009)” in English legislative texts have implications for the translation of Korean statutes, as translated law should follow the generic conventions of non-translated law to reduce a cognitive effort on the part of the reader(Biel 2014b). However, shall is still the most frequent word to express various illocutionary forces in the translation of Korean statutes, which causes concerns for distant textual fit in the use of performative markers between translated and non-translated statutes in the future.
In this regard, the current study adopted corpus linguistics as the main research methodology and attempted to establish an integrated research model by compiling and analyzing three major types of corpora for translation purposes including parallel corpus, monolingual corpus, and comparable corpus.
Prior to the compilation of main corpora for the present study, translated Korean Statutes Corpus(TKSC) and non-translated British Statutes Corpus(BSC), each consisting of approximately 1 million words, were compiled as preliminary corpora. American Statutes Corpus(ASC) of 4 million words was also used for reference corpus. The comparison of the two study corpora shows that TKSC uses shall more excessively than BSC. Keyword analysis also reveals that the frequency of shall in TKSC is much higher than ASC, questioning the current practices of using shall in the translation of Korean statutes.
Based on these findings and other parameters confirmed, three types of main corpora were complied and analyzed as follows: First, in order to identify the types of illocutionary forces and performative forms of Korean statutes and their translations, a parallel corpus was established with Korean legislative provisions( 35,118 tokens) and their English translations(70,071 tokens) extracted from Korean-English Glossary of Legal Terms, the only legislative translation guideline made by the authority responsible for legislative translation in Korea. Analysis of the parallel corpus shows that shall is used to translate the illocutionary forces of directives(obligations/prohibitions) and declaratives in Korean statutes, except for few cases where must or the present indicative is used. Shall is used for translating most of the declaratives such as provisions about application or effect, deeming/presumptions, legal status or consequences of particular actions or states of affairs, and provisions creating a statutory body, office, etc., which do not correspond to the ‘right’ use of legal shall. This result confirms that shall is used as the absolute performative and stylistic marker in the translation of Korean statutes.
Second, in order to examine the types of illocutionary forces and performative forms of the statutes of English-speaking jurisdictions and compare them with translated Korean statues, three monolingual corpora, which also served as respective sub-corpora for comparable 2/ corpora, were compiled and analyzed. Consisting of approximately 750 thousand words each, the three corpora(TKSC, ASC, BSC) were compiled in compliance with the comparable corpus design criteria set by Rayson(2003). Of the various performative expressions, the following four units were selected for analysis based on the prior research findings and legislative guidelines: shall, must, is/are to, and the simple present. In regards to the classification and frequency calculation of verb forms in the simple present, this study employed text files tagged with UCREL CLAWS7 and extracted concordance lines from TKSC, ASC, and BSC with VVZ tag(-s form of lexical verbs). The remaining verbs classified as the simple present other than lexical verbs(i.e. is/are, do/does, have/has) were analyzed by using plain text files. The present study is differentiated from most of the previous studies in that it separately calculates the instances of performative forms that convey prescriptive force generally found in main clauses(Williams 2013b), in addition to the instances of those found in the entire corpora. Also, classification of the illocutionary force of each performative form is based on the legal use of shall presented by DTG(2008) with some modifications. The following is the results of analysis of the three monolingual corpora and comparable 2/ corpora:
First, in the case of TKSC, the present tense is the most frequent performative pattern(18,247 instances) of the four analysis units, followed by shall(11,642), is/are to(233), and must(20). However, the frequency pattern restricted to those verbal phrases with prescriptive force indicates difference in the ranks with shall being the most salient (11,360 instances) followed by the present simple(507), is/are to(28), and must(7). The cluster analysis showed that shall in TKSC is used most frequently for translating constitutive rules in Korean statutes, such as application/application mutatis mutandis provisions, deeming provisions and presumptions, and provisions about delegated legislation. Analysis of the randomly sampled concordances of shall also showed that it is abused for translating declaratives, as well as for translating obligations, not observing the recommendation made by Plain English advocates that the present tense should be used for communicating constitutives and other declaratives in statutes. Meanwhile, the use of the present simple is restricted to the form of the lexical verb “means” in definition provisions, with some exceptions where used in provisions about the legal status or consequences, application/application mutatis mutandis provisions and requirements. (Semi) modals must and is/are to are also rarely used as performative markers with prescriptive force in TKSC.
Second, ASC demonstrates convergence with TKSC in the frequencies of performative expressions in the order of the simple present(17,307 instances), shall(8,861), is/are to(191), and must(113). However, it shows contrast with TKSC in terms of the frequencies restricted to those used in main clauses. As in TKSC, shall(8,440 instances) is the most abused performative marker in ASC; but the simple present(3,059 instances) shows similar salience with shall, indicating the US legislation uses the present tense more often than the translated Korean legislation. The present tense is mainly used for expressing definition clauses, propositions about the legal status or consequences of particular actions or states of affairs, provisions creating a statutory boy, office, etc. and related supplementary provisions, which shows distant textual fit between ASC and TKSC in terms of the use of the present tense as a performative pattern. Shall also shows difference from TKSC in terms of its detailed expressions: unlike TKSC, shall is more frequently expressed in ASC in the form of active structures with an explicit animate subject in provisions about delegated legislation or provisions creating a statutory body, office, etc. Penal provisions, deeming/presumptions, and application mutatis mutandis provisions also reveal difference between the two sub-corpora in the detailed shall structures. Must is observed to show difference from TKSC in that it is more frequently used for expressing requirements, than expressing the illocutionary force of an order to a natural/legal person. Meanwhile, semi-modal is/are to is rarely used as a deontic performative marker, except where used for expressing purpose clauses as in TKSC.
Third, BSC demonstrates very low similarity with TKSC and ASC in the frequencies and use of performative forms. For all of the verb constructions under examination, the simple present(31,636 instances) is used most frequently, followed by is/are to(2,111), must(2,108), and shall(257). The frequency pattern restricted to those verbal phrases with prescriptive force shows no great difference from the above pattern with the present tense(8,911 instances) showing the highest frequency, followed by must(1,680), is/are to(1,216). and shall(240). This means that shall is rapidly being replaced by other performative forms, notably the present simple, in the UK legislation. However, unlike the results of the prior studies(e.g. Williams 2013a), shall is still found hundreds of times in BSC, marking discrepancies in the use of shall between respective Acts. Meanwhile, must is observed to be used frequently to express requirements with inanimate subjects, obligations with animate subjects, delegated legislation(for which DTG(2008) recommends is/are to form), and deeming provisions and presumptions(for which DTG(2008) recommends the simple present). Verbs in the simple present are analyzed to be used for conveying constitutive rules, such as application/application mutatis mutandis provisions, and propositions about the legal status or consequences of particular actions or states of affairs, marking significant divergence between UK statutes and translated Korean statutes. Semi-modal is/are to, which is rarely used as a performative marker in TKSC and ASC, also occurs frequently in BSC for indicating deeming/presumptions/construction provisions, requirements with no explicit subject, and provisions making orders or regulations.
The findings of this study present the following implications for using shall in the English translation of Korean statutes: First, if the statutory translation authority decides to keep using shall when translating various illocutionary forces of Korean statutes, narrowing divergent textual fit with US laws would help produce translations more conforming to the generic conventions of English statutes. For this purpose, the current translation guidelines need to be updated and revised, especially for provisions about delegated legislation, provisions creating a statutory body, office, etc., penal provisions, deeming/presumptions, and application mutatis mutandis provisions.
Second, if the statutory translation authority decides to introduce shall-free or shall-restrictive style in the translation of Korean statutes in the future, wholly new translation guidelines for the use of performative forms need to be established by referring to the UK drafting guidelines and the findings of the present study. Instead of shall, must is recommended for denoting obligations with animate subjects; is/are to for provisions about orders and regulations, and provisions creating a statutory body, office, etc. and related supplementary provisions; and the simple present for constitutive rules and other declaratives.
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